Gem-Elkhorn Coal Co. v. Everidge ( 1958 )

PER CURIAM.

Appellant, Gem-Elkhorn Coal Company, has moved for an appeal from a judgment of the Letcher Circuit Court awarding ap-pellees, Emit and Juanita Everidge, the sum of $1,250 as damages to their property caused by coal dust emanating from a tipple operated by appellant.

We agree with appellant that the •rule that each property owner must use his own property in such a manner as to not interfere with that of his neighbor does not mean that every annoyance constitutes an injury for which damages may be granted. In Brumley v. Mary Gail Coal Company, Ky., 246 S.W.2d 148, we held that evidence which presented a description of the entire community was competent to show whether the act complained of might properly be termed a nuisance in the surroundings where it was perpetrated, but we agree with the trial court that the use and operation of the tipple, under the circumstances shown in the type of community described in the evidence, constituted a nuisance for which damages may be recovered.

We do not find that appellees’ conduct in leasing certain property to the appellant has estopped them from bringing this action for damages. The operation of the tipple by another company prior to the leasing had not been objectionable and it does not appear that appellees could reasonably have foreseen that injury might result by reason of permitting appellant to use a portion of their property.

We believe that the chancellor properly awarded damages in the sum of $1,250, and we are not disposed to disturb his judgment under the facts developed in the record.

The motion for appeal is overruled and the judgment is affirmed.