Kentland-Elkhorn Coal Company v. Charles , 514 S.W.2d 659 ( 1974 )

CULLEN, Commissioner.

Alonzo Charles and his wife, owners of the surface of a tract of land, recovered judgment in the amount of $10,000 against Kentland-Elkhorn Coal Corporation, owner of the mineral rights under that tract and under a substantial adjoining acreage, as damages resulting from the operation of a coal preparation plant, in connection with a mine, on land adjoining the Charles tract. Although the instructions were imprecise and confusing as to the basis of liability, the nature of the damages recoverable, and the measure of damages, it is apparent that the damages of $10,000 were for depreciation of the market value of the Charleses' property and were awarded on the theory of a permanent nuisance.

Appealing from the judgment, Kentland-Elkhorn voices a number of claims of error, the first of which is that its operations were within the authority of the “broad form” deed by which the company acquired the mineral rights (through the same common grantor through whom the Charleses acquired their surface ownership), and therefore the company was absolved of any liability. Kentland-Elkhorn maintains that it could be held liable only on proof that its acts were oppressive, arbitrary, wanton or malicious, and that there was no such proof in the instant case.

The decisions of this court have limited the liability of the owner of the mineral rights under the standard “broad form” deed, for surface damages, to those damages caused by oppressive, arbitrary, wanton or malicious action. See Buchanan v. Watson, Ky., 290 S.W.2d 40, and Martin v. Kentucky Oak Mining Company, Ky., 429 S.W.2d 395. And in at least two cases the court has said that the fact alone that an operation constituted a nuisance would not impose liability on the mineral owner. See Tolliver v. Pittsburgh-Consolidation Coal Co., Ky., 290 S.W.2d 471, and Consolidation Coal Co. v. Mann, 298 Ky. 28, 181 S.W.2d 394.

The words “arbitrary”, “wanton” and “malicious” have well established meanings in the law, and they denote conduct that is in contemptuous disregard of the rights of others or in some instances a deliberate intent to cause harm. “Oppressive,” on the other hand, is not so well defined as the other three words, and it differs in emphasis in that it bears on the effect of the conduct as well as on the attitude of the actor. One dictionary definition of “oppressive” is “unreasonably burdensome;” another is “harsh, rigorous or severe.” In some places in some of the opinions of this court, cf. Blue Diamond Coal Company v. Neace, Ky., 337 S.W.2d 725, and Martin v. Kentucky Oak Mining Company, Ky., 429 S.W.2d 395, the basis of liability of the mineral owner was said to be “arbitrary, wanton, or malicious” action, omitting “oppressive,” but it is clear that the omission was not a deliberate holding that “oppressive” action was no longer to be a basis for liability.

The property right of the mineral owner as to the surface of the land, under a standard “broad form” deed, is to use the surface in any manner deemed by the mineral owner to be “necessary or convenient” for the exercise of the right to produce the minerals. The decisions of this court fixing “oppressive, arbitrary, wanton or malicious” conduct as the basis for liability of the mineral owner obviously have reference to acts done, or the manner of doing them, under the claim of convenience, because if the acts done and the manner of doing them are necessary in the sense that there is no other way the right to remove the mineral can be accomplished, the mineral owner’s right to perform those acts in that manner is unqualified. Cf. Blue Diamond Coal Company v. Neace, Ky., 337 S.W.2d 725. Acts necessary to be done in a particular manner to recover the mineral could not be “arbitrary, wanton or malicious,” and even though they might turn out to be “oppressive” they would not furnish a basis for liability because the surface owner by his deed has subordinated his surface rights to those of the mineral owner at least to the extent that the mineral owner is entitled to recover the mineral by some method. Cf. Martin v. Kentucky Oak Mining Company, Ky., 429 S.W.2d 395.

In regard to liability for acts done under the claim of convenience, it would appear that no problem of application of the measure of liability ordinarily will arise where the conduct is claimed to be “arbitrary, wanton or malicious.” The question simply is whether the mineral owner has chosen a harmful procedure when one less harmful was equally available. And it makes no real difference whether the complaint is of the method selected or of the manner in which the method is employed. The same is not true; however, when the conduct is claimed to be “oppressive.” Then the concept of reasonableness enters in, and it is necessary to invoke a set of standards or employ a group of factors to measure the reasonableness of the particular conduct involved. And it may be that the standards or factors to be used in measuring reasonableness as to methods selected should be different from those used in measuring reasonableness of the manner in which the method is employed. To be specific, the determination of whether in a particular case it is reasonable (not oppressive) to remove coal by the methods of strip mining or auger mining may depend on one set of standards or factors, while the determination of whether a particular method, such as strip mining, was so used as to be oppressive will depend on a different set of standards or factors.

In the instant case there is no contention that Kentland-Elkhorn does not have the right to maintain a coal preparation plant on the land covered by its mineral deed— there is no complaint of the selection of a coal preparation plant as a facility for recovering the coal. The claim is that the coal preparation plant is being operated or maintained in such a manner as to be oppressive. That being the narrow issue, we shall confine our consideration to the question of the standards or factors to be used in measuring oppressiveness in this limited situation, leaving for another time the question of whether a set of standards or factors should be formulated for measuring reasonableness in the selection of a method of recovering minerals.

Since, as hereinbefore indicated, oppressiveness involves considerations of reasonableness, which in turn invoke a balancing of interests, and since this court has developed in the law of nuisances and the law of water rights a concept of unreasonable harm which we think would well be adapted to supply a measure of “oppressiveness” in the law of mineral rights, we have concluded that the foregoing concept should and will be applied in the type of mineral-right situation here involved, where there is complaint of damage from unreasonableness in the manner of use of a method of mineral recovery. It appears to us that the nuisance approach is appropriate in this situation. For convenience, the salient features of the nuisance approach are hereinafter stated.

In Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181, this court restated the law of nuisances as related to a property owner’s use of his property which, though lawful, causes injury to the property of another. The basic proposition adopted by the opinion in that case was that:

“ * * * the existence of a nuisance must be ascertained on the basis of two broad factors, neither of which may in any case be the sole test to the exclusion of the other: (1) the reasonableness of the defendant’s use of his property, and (2) the gravity of harm to the complainant. * * * ”

The opinion outlined the substance of appropriate instructions to be used in submitting, a nuisance question to the jury.

Subsequently, in George v. Standard Slag Company, Ky., 431 S.W.2d 711, a specific form of instructions was set forth. Those instructions include, as factors to be considered in determining whether the annoyance to the plaintiff is unreasonable: (1) The lawful nature and location of the defendant’s facility; (2) the manner of its operations; (3) its importance and influence on the growth and prosperity of the community; (4) the kind, volume and duration of the annoyance; (5) the respective relations of the parties; and (6) the character and development of the neighborhood and locality in which the properties are located.

The underlying principle of the Mudd and George cases is that an owner may not use his property in such a way as unreasonably to injure another’s property. The same principle was invoked in Klutey v. Commonwealth, Department of Highways, Ky., 428 S.W.2d 766, and Commonwealth, Department of Highways v. Baird, Ky., 444 S.W.2d 541, in relation to the casting of surface water on a lower landowner.

The fact, as in the instant case, that the mineral owner has the right, by deed, to operate a coal preparation plant on the surface of the land, does not militate against use of the unreasonable-damage concept because in the nuisance cases the defendant has the right to erect the structure complained of on his land, and in the water cases the upper owner has the right to cast the water on the lower owner. In the context of this discussion we are not concerned with a determination of what rights the mineral owner has; our concern is only with the liability of the mineral owner to respond in damages for an unreasonable exercise of his rights.

Our holding that the nuisance approach should be used in the type of case here presented has the effect of overruling Tolliver v. Pittsburgh-Consolidation Coal Co., Ky., 290 S.W.2d 471, and Consolidation Coal Co. v. Mann, 298 Ky. 28, 181 S.W.2d 394, to the extent that they hold that the mineral owner cannot be held liable to the surface owner for creating a nuisance.

Whether a particular case will be one for the jury will depend on whether there are issues of fact on which reasonable minds could differ, subject to the general principle that there must be sufficient evidence of an over-all inequity to the complainant in order to justify its submission. See Louisville Refining Co. v. Mudd, Ky., 339 S.W.2d 181; Louisville & Jefferson County Air Board v. Porter, Ky., 397 S.W.2d 146.

We think the evidence in the instant case created a jury issue as to liability of Kentland-Elkhorn, on the unreasonable-damage theory. The evidence for the landowners showed gravity of harm in that the coal preparation plant cast coal dust over their dwelling, garden and a rental house in excessive quantities such as to render the property practically uninhabitable. As concerns reasonableness of use the evidence with respect to the factors to be considered under George would have warranted a finding of unreasonableness of Kentland-Elkhorn’s use of its property rights. George says that whether the plant is being operated in a customary and prudent manner, and whether the defendant is doing all that it could reasonably be expected to do in order to prevent or minimize the annoyance complained of, are pertinent elements. There was evidence here as to a period of uncustomary, non-prudent operation, and that Kentland-Elk-horn did not do all it reasonably could be expected to do to minimize the harm.

Although we conclude that it was proper to submit the case to the jury, we are reversing the judgment because of error in the instructions (to which .appropriate objections were made). The instructions presented a confusion of two different theories of liability. The first instruction submitted a negligence theory in which damages to the plaintiffs’ health were included as elements of recovery although the measure of damages was stated to be the difference in market value of the land and improvements. The second and third instructions submitted a distortion of the Mudd-George theory of liability, in which the George instructions were reversed in order and the efficacy of the instruction as to the circumstances to be considered by the jury was destroyed by the qualification “so long as its lawful operation does not render damage to the health or damage to the dwelling house or quiet enjoyment of the plaintiffs.”

Another error in the instructions consisted of their submission of the issue on the theory of a permanent nuisance, with the measure of damages being the difference in market value of the plaintiffs’ property. For the reasons hereinafter stated, we think the case should have been submitted as one of temporary nuisance,. under which the measure of damages, as to property occupied by the owner, is the diminution in the value of the use during the continuance of the nuisance, and as to rental property is the reduction in rental value during that period. See Adams Construction Co. v. Bentley, Ky., 335 S.W.2d 912; Fidelity Trust Company v. Shelbyville Water & Light Company, Ky., 110 S.W. 239.

One test of whether a nuisance is temporary or permanent is whether the cause of the nuisance can be readily corrected or abated at a reasonable expense. See City of Ashland v. Kittle, Ky., 305 S.W.2d 768. Under that test the structure here in issue would be a permanent nuisance, because the testimony of the coal company was that the cost of modifying the coal preparation plant to eliminate the excessive emission of dust would not be economically feasible. But another test is whether the offending structure will be “relatively enduring and not likely to be abated, either voluntarily or by an order of court.” See Kentucky-Ohio Gas Co. v. Bowling, 264 Ky. 470, 95 S.W.2d 1. The instant case was tried in October 1969, and the testimony for the coal company was that the coal preparation plant would be closed down in January 1971. Under that test the plant was a temporary nuisance, which means that the plaintiffs could recover in the instant action only such damages as they had sustained up to the time of trial, and would be relegated to another, later action for the damages subsequently incurred up to the time of closing of the plant. See Wiser Oil Company v. Conley, Ky., 380 S.W.2d 217. In view of the relatively short period of time that was to remain for operation of the plant, at the time this case was tried, we think it was not too onerous to subject the plaintiffs to the necessity of bringing another suit for subsequent damage rather than permitting them to recover damages on a theory that the nuisance would be permanent when in fact it would not.¹

On another trial the instructions should follow those outlined in George, modified, however, to submit the measure of damages for a temporary nuisance rather than that for a permanent nuisance. The instructions should not authorize any recovery for personal annoyance, discomfort or sickness of the plaintiffs, because there was no claim of damages for personal injury. On a nuisance suit, such as this, while evidence of those elements is admissible as affecting the value of the use of the property, they are necessarily included in the damages for diminution in the value of the use and are not distinct elements of damage. See Gay v. Perry, 205 Ky. 38, 265 S.W. 437; City of Hazard v. Eversole, 280 Ky. 621, 133 S. W.2d 906.

The judgment is reversed for further proceedings in conformity with this opinion.

JONES, MILLIKEN, PALMORE, REED and STEINFELD, JJ., concur. STEPHENSON, J., concurs in the result only, by separate opinion.

1 . Of course if, on another trial, it should develop that the plant was not closed down but is still operating, the question of perma-nenee of the nuisance would be open for reconsideration.