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Libbra v. Mt. Olive & Staunton Coal Co.

FEBRUARY 28, 1961.

STELLA LIBBRA AND MACK LIBBRA, PLAINTIFFS-APPELLEES,

v.

MT. OLIVE AND STAUNTON COAL COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison county; the Hon. HAROLD R. CLARK, Judge, presiding. Judgment of plaintiff Stella Libbra affirmed; judgment in favor of plaintiff Mack Libbra set aside, and judgment in favor of plaintiff Mack Libbra entered in the sum of $1,464.80.

HOFFMAN, JUSTICE.

Defendant, Mt. Olive and Staunton Coal Company, appeals from judgments entered against it on verdicts rendered by a jury in favor of plaintiff, Stella Libbra, as owner of a 150 acre tract of land in Madison County and plaintiff, Mack Libbra, as tenant of the same premises. They had joined in a suit against the coal company alleging damages to the farm and its crops caused by slack, coal dust and other debris being deposited by the defendant in a stream of water which flowed through the premises. It was contended that by reason of the overflow of the natural watercourse on many occasions over several years time, the slack, dust and debris had been deposited in various quantities at different places on the land involved. Plaintiff, Stella Libbra, as owner, alleged that "the fair cash market value of the land as above-described had been greatly and permanently diminished and depreciated." The plaintiff, Mack Libbra, as tenant, asked for crop damages for the years 1953, 1954 and 1955 based on flooding of the premises in those years with the consequent deposit of the coal mining debris. He was the year to year tenant on the premises for some time, having farmed the place for the past 12 years prior to the time that this suit was filed.

The jury returned verdicts in the sum of $7,300.00 for plaintiff Stella Libbra and $1,700.00 in favor of the plaintiff Mack Libbra. The Coal company filed a post-trial motion to set aside the judgments and to enter judgments notwithstanding, or, in the alternative, to grant a new trial. This motion was denied.

On appeal, the coal company seeks a reversal only, arguing that the trial court erred in failing to direct a verdict in its favor. It no longer is pursuing its request for a new trial. The sole basis of the coal company's argument is that evidence of the wrong measure of damages, as to plaintiffs, was permitted to go to the jury.

The farm involved is crossed by a creek known as a branch of Silver Creek. Upstream was a coal mine which was operated by the defendant Mt. Olive and Staunton Coal Company. The operation of the mine resulted in accumulations of quantities of waste or debris in the nature of coal dust, and this debris was liberated in the water of the creek. When high water receded, quantities of this were left on bottom land of the Libbra farm. Corn was planted on the Libbra bottom land in 1953, corn and sorgo in 1954, and corn in 1955. Prior to the planting in 1953, the creek had overflowed and, upon examination, coal debris was found. In 1954, there was a flood in April, and in 1955, there was a heavy flood in June which left heavy deposits of coal debris. Crops were also planted in 1956, 1957 and 1958 and even afterwards but no damages are claimed for any years other than the years 1953, 1954 and 1955. There was no crop failure until 1953. The tenant testified that there probably was coal dust before 1953 but there was none that would really hurt the crop before then. Coal dust could be seen in 1952 but in June of 1953 when the premises were flooded, there was a great deal more.

Because damages are measured differently for the tenant than for his landlord, we must review the action separately.

Insofar as the landlord is concerned, her evidence at the trial, pertaining to her damages, was limited solely to a showing diminution of market value of her farm after the contamination. Defendant contends that this is a proper measure of damages only when the injury to the land is permanent. Defendant then argues that there was a total failure of any evidence from which permanent injury to the land could be concluded, and that, therefore, defendant was entitled to a directed verdict.

There was testimony that corn would not grow in the areas affected due to its acidity and that, in order for crops ever to grow again, the contamination would have to be removed and the soil neutralized. It appeared that lime might be used as a neutralizer, but that there would have to be laboratory tests taken to determine whether this would be feasible. It was suggested that nature itself might, in time, restore the fertility of the soil. Various witnesses testified as to the value before and the value after the contamination caused by the deposit of coal debris. The verdict for Mrs. Libbra was within the range of this testimony, as the witnesses' appraisal of the damage varied from $1,300.00 to $12,090.00.

What is the proper rule of damages insofar as the plaintiff, Stella Libbra, is concerned?

15 Am. Jur., Damages, Section 106, states on page 514:

"There is no fixed rule for determining the measure of damages for injuries to, or destruction of, property in every case. The amount to be awarded depends upon the character of the property and the nature and extent of the injury, and the mode and amount of proof must be adapted to the facts of each case. In ascertaining the damages to be allowed, the jury may consider all the circumstances connected with the injury."

15 Am. Jur., Damages, Section 107, states on page 515:

"No hard and fast rule can be laid down, however, for the measurement of those damages; whatever rule is best suited to determine the amount of the loss in the particular case should be adopted."

The question here presented is whether or not a fair determination of the damages to the owner of the farm could be arrived at by testimony of the value of the premises before there was any contamination as compared with ...


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