LARRY ROSE COAL COMPANY v. JOHN C. MAIN AND EVELYN J. MAIN (HIS WIFE) LOWELL JENKINS AND CEE JAY, INC. v. JOHN C. MAIN AND EVELYN J. MAIN (HIS WIFE)
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RENDERED: JULY 28, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001610-MR
LARRY ROSE COAL COMPANY
(LARRY ROSE COAL COMPANY, INC.)
v.
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 89-CI-00280
JOHN C. MAIN AND
EVELYN J. MAIN (HIS WIFE)
AND:
APPELLANTS
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 89-CI-00280
JOHN C. MAIN AND
EVELYN J. MAIN (HIS WIFE)
OPINION
REVERSING APPEAL NO. 1999-CA-001610-MR
AND APPEAL NO. 1999-CA-001617-MR
** ** ** ** **
BEFORE:
APPELLEES
1999-CA-001617-MR
LOWELL JENKINS AND
CEE JAY, INC.
v.
APPELLANT
HUDDLESTON, MILLER, AND TACKETT, JUDGES.
APPELLEES
MILLER, JUDGE: Larry Rose Coal Company (Rose), Cee Jay, Inc. (Cee
Jay), and Lowell Jenkins (Jenkins) bring these consolidated
appeals from a judgment of the Knox Circuit Court entered without
benefit of jury on June 8, 1999.
We reverse in both Appeal No.
1999-CA-001610-MR and in Appeal No. 1999-CA-001617-MR.
On June 23, 1989, appellees, John C. Main and Evelyn J.
Main (the Mains), filed a trespass action in the Knox Circuit
Court alleging that Rose, Cee Jay, and Jenkins1 had willfully
mined, removed, and/or caused to be removed coal belonging to the
Mains.
Rose, Cee Jay, and Jenkins duly answered denying the
trespass.
For many years this action lay in the circuit court.
During this time, a number of depositions were filed of record.
Also, the record was supplemented with the Opinion and Judgment
of the Knox Circuit Court entered December 10, 1974 in John C.
Main, Jr. v. John Hendrickson, et al, Civil Action No. 5133
(herein referred to as the Hendrickson heirs litigation).
On June 21, 1998, an order was entered referring the
matter to a Special Commissioner of the Knox Circuit Court for
findings and recommendations.
It appears the Commissioner made
no report.
On June 8, 1999, the court rendered its own Findings of
Fact, Conclusions of Law, and Judgment.
The court awarded
damages for trespass, thus precipitating these appeals.
We shall
address the appeals separately.
1
There were other defendants to this action who have not
appealed.
-2-
APPEAL NO. 1999-CA-001610-MR
Upon examination of the record, we conclude that there
is no factual basis to support the judgment against Rose.
Other
than the listing of Rose as a defendant to this action and a
rather tenuous suggestion that Larry Finley, owner of Rose, may
have received some royalty payments from property he owned in the
area, there is nothing to support a claim against Rose.
Nor, do
the findings and conclusions of the circuit court implicate Rose
in the alleged trespass to Mains' coal.
The judgment against Rose is perforce clearly
erroneous.
Ky. R. Civ. P. 52.01.
Same is hereby reversed.
APPEAL NO. 1999-CA-001617-MR
The resolution of this appeal requires an analysis of
the facts and law.
At all times herein relevant, appellees, Jenkins and
Cee Jay, mined under a lease from the Hendrickson heirs obtained
in July, 1983.
The mining was conducted under Permit No. 861-
5162 issued by the Kentucky Department for Natural Resources to
L, J, and C Coal Company, an entity, according to the permit
application, owned by Jenkins.
It appears the Mains first
complained of the alleged trespass in 1989, after mining in the
area had probably ceased.
The Mains claim fee ownership of a 3.31-acre tract of
land adjoining the Hendrickson heirs lease.
-3-
In the underground
mining of the Hendrickson heirs lease, the Mains contend that
Jenkins and Cee Jay willfully breached their boundary and removed
coal from beneath their acreage.
The circuit court agreed with
the Mains and entered judgment for willful trespass and resulting
damages.
In this appeal, Jenkins and Cee Jay contend the Mains'
action should have failed.
They argue that the Mains did not
establish title to the coal under the 3.31-acre parcel.
In
support thereof, they point to the 1974 Hendrickson heirs
litigation wherein the Mains sued the heirs to establish title.
In that litigation, the Mains claimed ownership of the 3.31-acre
parcel of land in fee.
They were unsuccessful.
The court
determined that the Hendrickson heirs were the owners of the
“Dean seam of coal” underlying the 137-acre tract, but
specifically stated it was unable to determine ownership of the
3.31-acre parcel.
The court stated as follows:
(5) The evidence is insufficient for the
Court to adjudge ownership of the 3.31 Acre
parcel of land described in the complaint,
and this case is retained on the docket in
order that the parties may present additional
evidence on that issue for subsequent
determination by the Court;
Notwithstanding the foregoing statement by the court, it appears
that no further action was taken to determine ownership of the
3.31 acres.
The instant trespass litigation filed in 1989 put
title to underlying coal in issue.
It is a fundamental principle of law in a trespass
action for wrongful removal of coal, the plaintiff must prove
title.
See Rose v. Gatliff Coal Co., 266 Ky. 416, 99 S.W.2d 214
-4-
(1936).
In proving title, one must do so affirmatively and may
not rely upon the weakness of defendant's title.
Corporation v. Kelly, Ky., 417 S.W.2d 253 (1967).
See Knott Coal
To prove
title, one must establish title from a common source or from the
Commonwealth.
Sandlin v. Baker, 242 Ky. 645, 47 S.W.2d 55
(1932).
The Mains claim fee title to the 3.31 acres through a
deed dated August 22, 1942, from Mrs. Meredith G. Carpenter,
Special Deputy Director, Division of Banking, Commonwealth of
Kentucky, liquidating the First State Bank of Barbourville to
John C. Main, Jr.2 (the 1942 deed).
by deed reference only.
The property was described
It purported to convey all property
acquired by First State Bank of Barbourville (First State Bank)
in a Commissioner's Deed of December 9, 1929, which had not
theretofore been sold.
Specifically the deed stated:
CONVEYANCE ONE:
All the right, title and interest of
first party of every kind, character and
description in and to the property conveyed
to the First State Bank, Barbourville,
Kentucky, by Commissioner's Deed of date the
9th day of December 1929, which deed is of
record in the Knox County Court Clerk's
office in Deed Book 67 at pages 310-317, to
which reference is hereby made. There is
excluded from this conveyance any and all
tracts of land, mineral rights, and/or oil
and gas rights heretofore sold. (Emphasis
added.)
2
In 1943, John C. Main, Jr. conveyed the property to John C.
Main, Sr. At John C. Main, Sr.'s death, the property passed to
his widow, Rosa G. Main. In 1974, Rosa G. Main, widow, conveyed
the property back to John C. Main, Jr.
-5-
Jenkins and Cee Jay contend the Mains may not establish title
without proving the coal underlying the 3.31 acres has not
sometime in the past been off-conveyed.
They direct us to the
cases of Stephens v. Terry, 178 Ky. 129, 198 S.W. 768 (1917), and
Miller v. Breathitt Coal, Iron & Lumber Co., 152 Ky. 390, 153
S.W. 468 (1913), supporting the principle that one claiming title
under a grant containing an exclusion must show that his title
does not fall within the exclusion.
The Mains reply that Jenkins
and Cee Jay are estopped to impugn their title because the
respective titles are derived from a “common source” -- First
State Bank.
The circuit court agreed with the Mains and found as
follows:
5. The Court does hereby make a
finding of fact that the abstracts of title
for the Plaintiff's property and the
Hendrickson heir's property reflect common
ownership from August 14, 1896, through
January 13, 1931. The First State Bank of
Barbourville owned the larger tract of which
the Plaintiff's property and the Hendrickson
heirs property were both a portion.
(Emphasis added.)
We are compelled to disagree with the circuit court.
We do not believe the Hendrickson heirs and the Mains share a
common source of title.
It is true that both the Mains and the
Hendrickson heirs received their respective properties from First
State Bank.
The Hendrickson heirs were conveyed the 137-acre
tract by deed dated January 13, 1931.
The Mains' property
emanated from a deed dated August 22, 1942 -- the 1942 deed.
While both deeds derive from a “common grantor,” First State
Bank, we are of the opinion the conveyances do not share a common
source of title.
-6-
In Bolin v. Buckhorn Coal & Lumber Co., 211 Ky. 847,
278 S.W. 154 (1925), the Court clarified the critical distinction
between a common grantor and common source of title in a trespass
to try title action:
It is therefore insisted that plaintiff
proved title to a common source and it was
not necessary to prove title from the
commonwealth. On the other hand, it is
argued that plaintiff merely proved that he
and the Daniels derived title through a
common grantor and not through a common
source. It is true that the terms “common
grantor” and “common source of title” do not
always mean the same thing. For instance,
proof that both plaintiff and defendant
acquired title through a common grantor is
not sufficient to dispense with proof of
title from the commonwealth, where the tracts
are separate and distinct and the common
grantor's title was derived from separate
sources. (Citation omitted.)
In the case at hand, the record reflects the
Hendrickson heirs' 137-acre parcel was a “separate and distinct”
tract.
The 137-acre tract was identified as the “Second Tract”
in the November 7, 1929, Commissioner's Deed from Turkey Creek
Coal Company to First State Bank.3
distinct identity.
It thus had a separate and
We find no evidence in the record to indicate
that the 137-acre tract and the 3.31-acre tract were ever united
as a single tract of land either as to surface or mineral under
the ownership of First State Bank.
Therefore, we cannot say that
First State Bank is the common source of these properties.
In
sum, we hold that First State Bank was indeed a common grantor,
but not a common source.
Such is insufficient to prove title in
3
In the November, 1929, Commissioner's Deed, we observe that
a “Third Tract” was described containing a surface estate of 3.31
acres.
-7-
a trespass action for wrongful removal of coal.
It was thus
incumbent upon the Mains to establish title to the Commonwealth.
The Mains did support their claim with a chain of
conveyances dating back to the Commonwealth.
They claim fee
title to the 3.31 acres through the aforementioned 1942 deed.
That deed contained no property description.
Rather, the 1942
deed purported to convey all property interests acquired by First
State Bank from Turkey Creek Coal Company through the 1929
Commissioner's Deed.
The conveyance, however, excluded any
property that may have theretofore been sold, including coal.
As such, we think it incumbent upon the Mains to prove that they
actually received title to the coal underlying the 3.31 acres
from the 1942 deed.
In short, the Mains failed to demonstrate
that the coal had not been off-conveyed.
Hence, we deem the
chain to be insufficient to establish title to the coal in
question.
The Mains place great reliance upon a survey conducted
by Kentucky Utilities Company in 1978 wherein the utility
purported to locate the boundary between the Mains' and the
Hendrickson heirs' properties.
This was done pursuant to
condemnation proceedings for a utility right-of-way upon the
surface estate.
We do not view such as supporting the Mains'
claim to establish ownership of the coal underlying the property.
Upon the whole of the record, we are compelled to also
reverse Appeal No. 1999-CA-001617-MR.
In view of our determination, we consider the question
of damages moot.
-8-
For the foregoing reasons, the judgment of the Knox
Circuit Court is reversed both in Appeal No. 1999-CA-001610-MR
and in Appeal No. 1999-CA-001617-MR.
ALL CONCUR.
BRIEFS FOR APPELLANT, LARRY
ROSE COAL COMPANY:
BRIEF FOR APPELLEES, JOHN C.
MAIN AND EVELYN J. MAIN:
John T. Aubrey
Manchester, Kentucky
W. Henry Lawson
Pineville, Kentucky
BRIEF FOR APPELLANTS, LOWELL
JENKINS AND CEE JAY, INC.:
Marcia A. Smith
Corbin, Kentucky
-9-
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