165 Ky. 417
Court of Appeals of Kentucky.
June 15, 1915.
ACTION: Reversed, with directions.

Appeal from Circuit Court, Knox County.
Action by L. P. Trosper against the North Jellico Coal Company.
Judgment for plaintiff, and defendant appeals.

L. P. Trosper is the owner of a small tract of land on Lynn Camp creek in Knox county. The North Jellico Coal Company operates a coal mining plant on Screw Auger branch, a tributary of Lynn Camp creek. The branch empties into the creek a couple of miles above Trosper's farm. Alleging that the coal company had negligently placed deposits of slack and fine coal on the banks of Screw Auger branch, and that the same had been carried down the creek and filled up the channel thereof, causing the lands owned by him to be overflowed, washed away, and rendered unproductive, Trosper instituted this action in the Knox circuit court against the coal company to recover damages therefor. The plaintiff having on January 28, 1914, obtained a verdict and judgment in the sum of $200, defendant coal company appeals.

1. Its first complaint is that the trial court erred in limiting the number of witnesses. The bill of exceptions shows that plaintiff introduced seven witnesses, and that defendant then introduced a like number, the seventh witness being George Ohler. Plaintiff then introduced witnesses in rebuttal, and defendant as witness in surrebuttal. Then follows this recitation:
"Just after the defendant closed the evidence of the witness George Ohler, the court announced that the defendant company could not introduce any other witnesses, and to that ruling of the court the defendant at the time objected and excepted, and avows that defendant wishes to introduce as witnesses in its behalf J. S. Lovell, Stephen Johnson, Elijah Harris, Will Harris, Dan Hodges, Will S. Sevier, Henry Smith, James Helton, Josh Davis, Tillman Gray, George Barton, Harrison Steele, and E. S. Williams, all of whom were present, and had been sworn as witnesses and placed under the rule, but the court would not permit either of them to be introduced by defendant, and to that ruling of the court the defendant at the time objected, and avows that defendant could truthfully prove by said witnesses, if they were to be permitted to testify, that they were familiar with Lynn Camp and mines of the defendant company and had been for years, and the premises and land of the plaintiff's; that said land had been for long years subject to overflows when rains would come, and that was true before defendant ever started its mines on said creek; that there was no slack in the creek in plaintiff's land, and no washing of any of said ground by the overflowing of the water; that the creek through plaintiff's land was partially filled and dammed up with logs and drifts and weeds, and which had the effect of holding back the water and causing it to overflow plaintiff's lands; and defendant could prove by said witnesses that the defendant company had not, for the last 15 years, permitted any of its slack from its mines to be wasted, but had sold the same to the markets of the country, and had it carried away in railroad cars."

The record does not disclose when the court first announced this limitation of the number of witnesses. Appellee strenuously insists that before the introduction of any testimony, the court limited the plaintiff to seven witnesses, and announced that the defendant would be likewise limited; while appellant points to the foregoing excerpt from the record, insisting that the record shows that not until after it had introduced its seventh witness did the trial court intimate its intention to limit defendant in respect of the number of witnesses. But in view of the conclusions we have reached with reference to the action of the trial court in limiting the number of witnesses to be introduced by defendant, it is immaterial when the limitation was first announced.

In the case at bar, appellee charged that slack and fine coal had filled up the channel of the creek at a point some distance above his land, and had caused a new channel to be formed, as the result of which his land was greatly injured by overflow, by washing away, and by being rendered unproductive. It was appellant's contention that fallen timber and other debris of that character had caused the formation of the new channel rather than slack and fine coal; and, further, that even if caused by fine coal, such coal did not come from its mines, but from the mines of others; and, further, that if the land was injured at all, the injury was very slight. In presenting this defense, as well as its ideas as to the extent and nature of the injury to appellee's land, it is easily apparent that appellant had grounds for the use of a number of witnesses. The condition of the creek for a number of miles above appellee's land; the condition of the coal deposits at other mines on the waters of Lynn Camp creek; the history of the several coal operations which had been conducted by other companies thereon, as well as itself, during a number of years prior to the institution of this action, in respect of the disposition made by them of their slack; the extent to which brush and fallen timber had contributed to the blocking up of the original channel of the creek; and the actual character and extent of the injury to appellee's land--were all necessary to be shown by appellant in the presentation of its defense, and these are all directly involved in a consideration of the negligence charged and of the nature and extent of the consequences resulting therefrom.

Should it be conceded that a trial court has the right to limit the introduction of witnesses so as to make the parties equal in this respect (about which we express no opinion as the question is not before us), yet in the present case, while the witnesses were equal in number, they were not equal in value as to issues. For instance, six out of the seven witnesses introduced by plantiff testified as to the condition of plaintiff's land, while but five of the seven witnesses introduced by defendant could testify concerning this point. Appellant's superintendent, who was seemingly indispensable on the question of the condition of its mines and the disposition made by it of its slack coal, could not testify relative to the injury to plaintiff's land, and another of appellant's witnesses, who was introduced on the question of the disposition of the slack at another mine on Lynn Camp creek, was unable to testify concerning the injury to or condition of plaintiff's land.

In view of these facts, we are convinced that in limiting the number of witnesses, to be introduced by defendant, the trial court erred to the prejudice of its substantial rights, for which reason a new trial will be granted.

2. It is further contended by appellant that the trial court erred in denying its motion for a directed verdict, but in view of the fact that there must be another trial, we will not discuss this contention further than to say that appellant rests its claim in this respect upon the assertion that there was no evidence showing that the slack which filled up the original channel of the creek came from its mines. It was shown in evidence that there are, or had been, several other coal mines operated on Lynn Camp creek and its tributaries above appellee's land, some of which were below appellant's mines and nearer to appellee's land; and because of this appellant argues that the slack from the nearer mines must have reached the point in the creek where the channel was obstructed before any slack from its mines could have done so, and that therefore it was slack from these nearer mines rather than slack from its own, which caused the injury to appellee's land. However, there was evidence that appellant company had dumped slack directly in the branch, and there was evidence that the lower mines did not do so; and some of the witnesses testified that they had followed the slack from the place of the channel obstruction on up to appellant's mines. The question of where the slack came from was one for the jury to solve. It was not incumbent on appellee to produce witnesses who could testify that they saw the slack and followed it as it washed down the creek and saw it fill up the channel and cause the injury to appellee's land. To hold that because of the difficulty in establishing the extent to which appellant company has participated in causing the injury to his land, appellee may not recover at all, would be merely to say that mine operators may take the property of another without compensation. This is not a case of negligence or no negligence, the evidence being equally consistent with either view. It is a case where the negligence is proven, although the extent of the injury occasioned thereby is not capable of completely definite ascertainment. But we know of no authority for the contention that because the exact degree in which a negligent act has contributed to a resulting injury is not capable of the most minute ascertainment, the tort-feasor may go free.

3. It was one theory of the defense that the obstruction of the creek channel was caused by logs and drifts rather than by slack; and complaint is made of the instructions because this theory of the defense is not covered therein. The instruction offered by defendant covering this idea was not correct, but on another trial, instruction No. 3 as given by the court should be so amended as to present this contention.

4. The instruction on the measure of damages informed the jury that if the injury to the land was only temporary, they should find the difference between the fair and reasonable rental value of the lands in their present condition and the fair and reasonable value thereof in their "natural condition," while if they found the injury to be permanent, they should find the difference between the fair and reasonable value of the lands in their present condition and the fair and reasonable value thereof in their "natural condition." The measure stated is not accurate in the use of the words "in their natural condition." In lieu thereof the court should have used the expression, "immediately before any injury, found to have occurred to said land within five years next before August 9, 1913"; that being the date of the institution of the action.

There is some proof that the injury is permanent; but for the sake of certainty, the instruction on the measure of damages should be divided and one instruction given on the measure in case the injury is found to be temporary, and another given on the measure in case the injury is found to be permanent, the jury being instructed to say under which instruction it finds.

5. As to the statute of limitations, we may say that the time did not begin to run until the actual happening of the injury.

For the reasons indicated, the judgment is reversed, with directions to proceed in accordance with the views herein expressed.

Ky.App. 1915.
177 S.W. 241, 165 Ky. 417


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