text:
    LOUISVILLE AND JEFFERSON COUNTY AIR BOARD, Appellant, v. James L. PORTER et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.

      James W. Stites, Stites, Peabody & Helm, T. Kennedy Helm, Jr., Stites, Peabody & Helm, Louisville, for appellant.
    R. D. McAfee, Richard D. Remmers, Louisville, for appellees.
   PALMORE, Judge.

Appellant, Louisville and Jefferson County Air Board (hereinafter called the Air Board), a suable public corporation created under KRS 183.132, owns and operates Standiford Field, principal airport in what might be termed the Greater Louisville area. Appellees, the Porters, own and reside in a house on Tuberose Avenue about half way between the airport property on the west and Kentucky Turnpike on the east. In this action against the Air Board the Porters recovered a $2,250 verdict and judgment for diminution in market value of their home resulting from annoyances of a permanent or continuing character attributable to the operation of the airport. Because of the importance of the questions involved, this court sustained the Air Board’s motion for an appeal, KRS 21.080, RCA 1.180, and has had the benefit of oral argument supplementing the briefs by counsel for the respective parties.

It is the position of the Air Board that it was entitled to a directed verdict at the conclusion of the testimony, first because no actionable wrong was proved, and secondly because, if there was a cause of action, it was barred by the 5-year statute of limitations, KRS 413.120. In view of our conclusion on the first of these points it will not be necessary to discuss the question of limitations.

The salient events culminating in the situation of which the Porters complain developed as follows:

1. Standiford Field was designed and planned as an “industrial airport” (that is, “having facilities for aeronautically oriented industry”), and purchases of land for it began in 1939.

2. The federal government (hereinafter called the government) took the field over in late 1941 or 1942 and returned it to the Air Board in 1947. In the interim the government completed construction of the airport according to the original plans and in addition built two large installations for industrial purposes, one of which was the Yiiltee Modification Center on the east side of the field and the other was the Curtiss-Wright plant on the west side. During World War II the Curtiss-Wright plant was used for the manufacture of C-47 cargo aircraft. It is now occupied by the International Harvester Company and is not a part of the airport. During World War II the Vultee Modification Center was used for the modification of B-24 Liberator bombers. It is still a part of the airport facilities and is called the “hangar area.” It is leased in part by the Bremner Biscuit Company and in part by some smaller commercial tenants.

3. A master plan of zoning for Louisville and Jefferson County was formulated in 1943. Cf. KRS 100.044. With regard to Standiford Field it did no more than show the boundaries, and did not restrict the property to any particular use or purposes. Zoning regulations adopted pursuant to the master plan include provisions for a “Special Use” permit, and it was the opinion of a representative of the Planning and Zoning Commission, testifying for the Porters, that in the absence of such special permission (which the Air Board has never sought and does not have) the Air Board may not use the land “for anything not related to an air field.” But in view of the cold fact that Standiford Field appears to have been left unzoned from the beginning, it seems to us that no special permission is necessary in order for it to be used for any purpose not prohibited by law.

4. The first landing of a jet airplane at Standiford Field took place in 1946, during the period of government control. Commercial scheduled airline service began there in November of 1947, having theretofore been concentrated at Bowman Field, a smaller airport at the eastern edge of Louisville.

5. Four-engine aircraft used the airport extensively during the war, and commercial 4-engine planes began using it regularly in early 1948.

6. Tuberose Avenue was developed for residential purposes in 1949 and 1950,, The Porters bought their lot in December of 1949 and built a home on it in 1950. They have lived there ever since. At the time of its development Tuberose Avenue ran eastwardly from old Grade Lane, a north-south road bordering the east side of the air field, and led into another residential subdivision to the east. Despite the presence of the airport, the Porters depict the area at the time as a quiet, peaceful neighborhood. Since then the Kentucky Turnpike, which also runs north and south, has been constructed some 1200 feet east of Grade Lane, cutting Tuberose Avenue off from the residential area to the east, and Grade Lane has been relocated to run along the west border of the turnpike. Hence the portion of Tuberose Avenue with which we are concerned now extends from new Grade Lane on the east to the airfield on the west, old Grade Lane hav - ing been closed and most of the houses and trees on it having been removed. The Porter property is approximately in the middle, or about 600 feet from each end of Tuberose Avenue.

7. In 1956 the Air Board leased to the government, for use by the Air National Guard (hereinafter called the Guard), a 35-acre portion of the air field located immediately across old Grade Lane from the west end of Tuberose Avenue. Prior to that time the Guard unit had been located in the hangar area formerly used by Vul-tee and in which the Bremner Biscuit Company now manufactures its products. The Guard began using jet planes “in a very limited degree” during the summer of 1956 and received one or two additional of such planes per month until it reached a full complement of 16, which was the number being maintained and operated at the time this litigation commenced. In the Guard area adjacent to old Grade Lane the government has constructed hangars, office facilities and other buildings necessary for the storage and maintenance of the Guard aircraft. These structures are situated between the west end of Tuberose Avenue and the north-south landing strip of Standiford Field, which is the only runway used by jet planes.

8. As heretofore mentioned, the first landing of a jet plane at Standiford Field took place in 1946, and the Guard began using them in 1956. Meanwhile, commercial air service was provided by conventional aircraft until 1959, when the so-called “turbo-prop,” typified by the Electra, came into regular use. The commercial air lines began to operate “pure jet” planes in March of 1960, but they were not regularly scheduled until March of 1962. jThere are now four, commercial jet flights idqily, the first arriving at 11:00 A.M. and the last departing at 7:23 P.M.

9. In 1962 the Air Board acquired by purchase a 30-foot right-of-way for a railroad spur track which comes up toward Standiford Field from the south, turns eastward and crosses old Grade Lane, then makes an 11-degree curve northward bordering the west line of new Grade Lane, crosses Tuberose Avenue at its intersection with new Grade Lane, continues northward along the west line of new Grade Lane for a distance of some 2,000 feet, and then makes a 16-degree curve westward and leads into the air field, terminating in the hangar area where the biscuit company is located. Pursuant to an easement granted it by the Air Board the L. & N. Railroad Company then proceeded to construct and now uses an industrial spur track on this right-of-way. Thus far the biscuit company is the only customer served by the spur track, but the Air Board hopes in the future to locate other industrial tenants in the same sector of its property. The Porter home is 600 feet from the 11-degree curve and 2,000 feet from the 16-degree curve. As of the time this suit was filed the Air Board evidently had neglected to secure a re-zoning of the property embracing that portion of the spur right-of-way which lies outside the air field. To that extent the maintenance of the track appears to be in technical violation of the zoning regulations.

10. In January of 1963, when this suit was filed, the Porters and their neighbors say they were suffering great annoyance from the noise and vibrations of aircraft in flight, engines being tested or “run-up” on the ground by the Guard, and trains using the spur track. There was always some amount of annoyance, especially at times of unusually heavy air traffic, as on Derby Day, but according to the Porters it did not reach objectionable proportions until the last three or four years (the statute of limitations being five).

It is unnecessary to describe the particular annoyances in great detail. Of the three sources, planes in the air, planes on the ground, and switching operations on the spur track, “revving-up” the Guard’s jet planes on the ground is the most substantial. The Guard is required to be 75% operational at all times, which means that 12 of its 16 jet planes must be ready to fly in the event of an emergent military call. The running of motors while planes are on the ground is necessary for the purpose of testing and adjustment, particularly after the engines have been taken off for repairs or overhaul and then re-installed on the aircraft. According to records kept by the Guard, this operation is conducted in the daytime and during an average time of 9%2 hours per month. It is usually done at a particular point on the airfield next to the north-south runway, 4,000 feet and on the other side of the Guard’s building complex from the Porter property.

The newest disturbance is, of course, the switching of railroad cars over the spur track. Besides the ringing of bells, sounding of horns, and normal engine noise, the railroad equipment causes a shrill “screeching” as it passes through the two curves we have heretofore mentioned. A representative of the railroad company testified that the degree of curvature accords with standard railroad construction. The normal time at which cars are spotted into the airfield is about 6:00 P.M., and most-times it is accomplished between 5:00 P.M. and 9:00 P.M. Statistics kept by the railroad company indicate that over a 6-month period there were 13 days on which the switching was done after 9:00 P.M., 6 days on which there were more than one such operation, and 38 days on which there were none.

As we have said, there are four commercial jet flights daily. The record does not disclose the number of military or other special jet flights. The total number of commercial flights into the airport has decreased from a daily average of 86 in 1959 to 59 in 1963. At the same time, however, the planes have become larger and some are more noisy.

Standiford Field has two principal runways for take-off and landing, one running generally north-south and the other east-west. None of the approach areas or holding patterns extend over the Porter property, and there is no complaint of direct overflights. All jet traffic uses the north-south runway, which is 4,000 feet west of the Porter property.

The Air Board does not operate any aircraft or control the flight of planes using the airport, nor does it have any control over the operation of trains on the spur track. It was selected as the proper defendant on the theory expressed in Griggs v. County of Allegheny, Pennsylvania, 369 U.S. 84, 85, 7 L.Ed.2d 585, 82 S.Ct. 531 (1962), that the owner of an airport is responsible if the use of its facilities effects a taking of private property within the purview of the Sth and 14th Amendments of the U. S. Constitution. For purposes of the argument it may be assumed that under a constitutional provision against injuries to as well as the physical taking of private property for public use, cf. Const. § 242, the same principle would apply by analogy.

The Air Board concedes that Const. § 242 makes a governmental agency which has the power to sue and be sued liable for damage to property caused by its non-negligent acts. See “Claims against the State of Kentucky - Reverse Eminent Domain,” by Oberst and Lewis, 42 Ky.L.J. 163 (Jan. 1954), for an entirely adequate background on the subject.

Certainly, however, a governmental agency would not have a greater liability than a private individual, in the sense that a cause of action would lie against it where none would lie against the individual. Therefore, since in this case there is no claim of negligence or of direct trespass, plaintiffs must rely on the principles of nuisance, and under the theory of nuisance this court has adopted it should be clearly recognized that an activity which would constitute "a nuisance if conducted for private gain may not necessarily be a nuisance when it is conducted for an important public purpose.

The trial court instructed the jury to find for plaintiffs if the noises and vibrations resulting from the operation of the airport, including the activities of its tenants and the use of the railroad spur track, diminished the use and peaceful enjoyment of their property and thereby reduced its market value. In substance, this was a ruling that the noise and vibrations were a nuisance as a matter of law if they resulted in damage to the value of plaintiffs’ property.

It was held in Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181, 186 (1960), “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. Both are to be considered in the light of all the circumstances of the case, including the lawful nature and location of the defendant’s business, the manner of its operations, and such importance to the community as it may have; the kind, volume, time and duration of the particular annoyance; the respective situations of the parties; and the character (including applicable zoning) of the locality. The extreme limits are therefore, on the one hand, the reasonable use causing unreasonable damage and, on the other hand, the unreasonable (or negligent) use causing damage that is more unnecessary than severe. In the suit for damages alone the application of these broad considerations to the facts of the case is for the jury, subject to the general principle that there must be sufficient evidence of an overall inequity to the complainant in order to justify its submission.” (Emphasis added.)

In the proper and reasonable conduct of their business, agencies of public transportation always have enjoyed a certain indulgence at the hands of the law, not for any subtle or unworthy reason but because of their nature and direct importance to progress, prosperity and public welfare. For example, a doctrine was developed in the early days of the railroad industry “that a railroad duly chartered and authorized to operate by the state legislature was not responsible for consequential annoyances to adjoining landowners so long as the disturbance was a necessary and incidental concomitant of proper operation.- This doctrine was premised on the assumption that railroad operation seriously affected so many landowners that to allow tort actions against railroads for these disturbances would cripple the development of an essential industry.” Note, “Airplane Noise: Problem in Tort Law and Federalism,” 74 Harv.L.Rev. 1581, 1595 (1961). The view of this court was expressed as follows:

“The operation of a railroad train, and of switchyards, in connection therewith, is a lawful occupation, and the carrying on of its business, and the necessary incidents thereto, when done in a careful and reasonable way, and without unnecessary noises cannot be a nuisance.
“It is a matter of common knowledge that the emission of smoke from engines, and ringing of bells, the blowing of whistles, and the grinding of wheels are necessary incidents to the operation of railroad trains. A railroad cannot be operated without burning coal, and the coal cannot be burned without making smoke; the ringing of bells and the blowing of whistles are not only necessary incidents to the operation of railroad trains, but the giving of signals in that way is actually required by law in many instances; and it is perfectly apparent that the grinding of wheels cannot be avoided in the operation of trains. It will be observed that there is no allegation in the indictment that the things complained of were unneces-. sarily done, or that it was not necessary for the railroad company in the operation of its trains to blow the whistles, to ring the bells, or to cause the emission of large volumes of smoke. The necessities of commerce demand the operation of railroads, and railroads cannot be operated without these necessary incidents, and there can be no nuisance in the operation of a railroad or of its switchyards, unless the noises created thereby are unnecessary in its operation.”
“The doing of a lawful thing in a careful and prudent manner cannot be a nuisance; but the doing of a lawful thing in a reckless, careless, or negligent way may be a nuisance.” Louisville & N. R. Co. v. Commonweath, 158 Ky. 773, 166 S.W. 237, 238 (1914).

The opinion from which the foregoing quotation was taken dealt with the question of public nuisance, but the same viewpoint governed in cases of alleged private nuisance. See Cincinnati, N. O. & T. P. Ry. Co. v. McQuaid, 172 Ky. 495, 496, 189 S.W. 423 (1916); Kilcoyn v. Chicago, St. L. & N. O. R. Co., 141 Ky. 237, 132 S.W. 438 (1910). Somewhat paradoxically, however, this policy did not carry over to actions against governmental units under Const. § 242 for injuries to property resulting from change in grade of established streets. See, for example, City of Ashland v. Queen, 254 Ky. 329, 71 S.W.2d 650 (1934), in which a city and county were held liable to abutting property owners for damages occasioned by the non-negligent construction of a highway viaduct.

We have departed from the notion that the non-negligent operation of a lawful business cannot be a nuisance. Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755 (1965). Though it seems never to have been consistently applied to differing fact situations, it has been a favorite crutch when convenient. This particular court’s ambivalence in that respect was discussed at some length in Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181 (1960), in which previous opinions including United Fuel Gas Co. v. Sawyers, Ky., 259 S.W.2d 466, 38 A.L.R.2d 1261 (1953), were modified to accord with the conclusions reached in that case. See also Associated Contr. Stone Co. v. Pewee Val. San. & Hosp., Ky., 376 S.W.2d 316, 318 (1964). Opinions holding negligence to be a requisite of recovery in blasting cases were to that extent overruled in Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755, 758 (1965). Meanwhile, perhaps by inadvertence, the United Fuel Gas Co. case popped up again in Commonwealth ex rel. Dept. of Fish and Wildlife Resources v. Mayer, Ky., 357 S.W.2d 879, 881 (1962), as authority for the proposition that in the absence of negligence there is no liability for a legitimate and reasonable use of land. It was not, however, necessary to the conclusion reached in the latter case, which would have been the same under the principles of Louisville Refining Company v. Mudd, supra. To the extent the Commonweath ex rel. Dept. of Fish and Wildlife Resources v. Mayer opinion suggests there can be no liability without negligence, it is necessarily overruled by Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755 (1965).

There are two other opinions that bear explanation in this respect. In Kentucky West Virginia Gas Company v. Matny, Ky., 279 S.W.2d 805 (1955), and Hawkins v. Wallace, Ky., 384 S.W.2d 507 (1964), and probably other decisions involving the statutes of limitation in nuisance cases, significance was ascribed to the fact that the structures of which complaint was made had not been negligently erected or operated. Neither case implies, however, that negligence was a necessary element of the cause of action. To the contrary, the point was that without negligence the nuisance, if any, was bound to be permanent rather than temporary, and thus subject to-the 5-year statute of limitations.

But even though non-negligence in the operation of a lawful business is not always conclusive, it is nevertheless an important factor in determining whether a nuisance exists. As we view the evidence in this case it seems to us that the operations of which the Porters complain are reasonable and for the most part necessary and unavoidable. Perhaps the Air Board could have done without the factories and the spur track service, but obviously the air field was planned with this type of development in mind. It was established at a time when the area was sparsely populated, and its use during World War II provided fair warning of what it would surely become in the future. We come thus to the other side of the coin. The consequent effect upon living conditions in the area were clearly ex-pectable, and hence avoidable by those at least who were not already there, including the Porters. It is fundamental that a buyer of property assumes the risk of changing community conditions. Sometimes the value of his property is enhanced, and he does not have to pay for the enhancement. Sometimes it declines, and he has no recourse. These facts of life are not subject to an exception simply because the source of the transition can be identified and is suable. If they were, a municipality would be accountable for the economic effects of zoning classifications. Whereas the necessities of the situation on the part of the Air Board are an important consideration on the one hand, so also is the choice of the Porters to live in this particular neighborhood with full knowledge that the airport was already there. They could not reasonably have expected it to stagnate amid the inevitable onrush of progress.

While the gravity of harm suffered by the Porters is substantial in the sense that $2,250 is not a trifle, it bears mention that the intermittent annoyance to which they are subjected is not materially different from that which is endured by the dwellers near every sizeable airport. Their property has not been physically damaged or rendered .uninhabitable. Indeed, in 1961 they improved the attic with the intention of ultimately converting it into two bedrooms. It is doubtful that they experience any greater interference in the use and enjoyment of their home than do those persons who reside along heavily-traveled streets, highways and railroads. The inconveniences are ordinary and the damage not unreasonable in view of the source and circumstances.

There are recent well-considered opinions from other jurisdictions in which recovery under conditions similar to those in this case has received judicial recognition. Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1964); City of Jacksonville v. Schumann, Fla.App., 167 So.2d 95 (1964); City of Charlotte v. Spratt, 263 N.C. 656, 140 S.E.2d 341 (1965); and Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962). See also the dissenting opinion of Chief Judge Murrah in Batten v. United States, (10 Cir. 1962), 306 F.2d 580. But this court, under the facts of this case, is differently persuaded. It is our conclusion that there was not sufficient indication of an over-all inequity to the complainants to justify submission of the question to the jury. We hold that the Air Board’s motion for a directed verdict at the conclusion of the evidence and later motion for a judgment n.o.v. should have been sustained.

The cause is reversed with directions that a judgment be entered dismissing the claim.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Lennie ROGERS, an Infant, etc., Appellant, v. Otis C. BURDEN, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.

      Jack M. Lowery, Jr., Louisville, Earl F. Martin, Sr., Martin & Martin, Hartford, for appellant.
    Woodward, Bartlett & McCarroll, Owensboro, for appellee.
   HILL, Judge.

Appellant, Lennie Rogers, an infant eight years of age, by his next friend, Tilman Rogers, appeals from a jury verdict and judgment for appellee-defendant, Otis C. Burden, in appellant’s action for damages on account of injuries received when his bicycle and appellee’s automobile collided.

State Highway 505, a blacktop road seventeen feet wide, runs east and west from U. S. 62 at Rosine to U. S. 231 near Cromwell and passes through the small town of Baizetown, all of which are located in Ohio County. A dirt road known as Arnold Road, coming from the north, intersects with Highway 505 at right angles. About eighty feet east of the intersection of 505 and Arnold Road, and on the south side of 505, is located the home of Lawrence Mi-lam. On the day of the accident in question, a large congregation of people were assembled in front of this residence. It is 74 feet from the Milam mailbox to the intersection aforesaid. Appellee was traveling west on route 505 with his wife in the front seat and his son and daughter in the back seat. Lennie Rogers and a companion came out of Arnold Road on their respective bicycles, and the collision took place at the intersection approximately six inches to a foot from the north edge of the blacktop surface of route 505.

Appellant contends the verdict and judgment should be reversed because the trial court erred (1) in refusing to allow appellant to introduce a photograph showing the intersection in question, (2) in giving both a sudden appearance and a sudden emergency instruction, and (3) in refusing to give a “last clear chance” instruction offered by appellant.

The photograph offered and rejected was made in early April following the date of the accident in June. It was not shown that the same conditions prevailed on the day the picture was taken that existed on the day of the accident. The picture was properly rejected. Cf. Louisville N. R. Co. v. McCoy, 261 Ky. 435, 87 S.W.2d 921 (1935).

Next, appellant urges that it was error for the court to give sudden appearance and sudden emergency instructions. The sudden appearance instruction (IV) relieved appellee if there was such a sudden appearance as was described in this instruction. Instruction V, relative to a sud den emergency, defined the required conduct of appellee when faced with a sudden emergency. The two instructions were neither duplicative, inconsistent, nor prejudicial. Neither did the giving of both overemphasize the idea of the sudden appearance of appellant.

Appellant’s final ground for reversal questions the propriety of the refusal of the trial court to give a “last clear chance” instruction. The evidence did not justify the giving of such an instruction.

Appellant Lennie Rogers stated the front of the car struck him, while ap-pellee maintains appellant struck his automobile in the side. There was evidence that appellee waved to the congregation in front of the Milam home and did not maintain a continuous lookout in approaching the intersection. There was also evidence that due to bushes and undergrowth, the approach of the unfortunate little boys was not visible to appellee. This being the situation, any failure on the part of appellee to keep a constant lookout could not have been a contributing proximate cause of the accident. There were disputed questions of fact which the jury resolved in favor of appellee. We cannot say the evidence does not support the verdict. Barnett v. Gilbert, 280 Ky. 402, 133 S.W.2d 529 (1939).

The judgment, is affirmed.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Robert L. COCHRANE et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Marshall B. Woodson, Jr., Sp. Counsel, Dept, of Highways, Louisville, for appellant.
    R. D. McAfee, Richard D. Remmers, Louisville, for appellees.
   CLAY, Commissioner.

Appellee plaintiffs brought suit against appellant, Commonwealth of Kentucky, for damages arising out of alleged injury to their land by reason of the construction of a highway. The matter was submitted to a jury, which returned a $5,000 verdict for plaintiffs. The Commonwealth contends it was entitled to a directed verdict on three grounds.

Plaintiffs had a lake on their land an acre and a half in size. Some 1,000 feet from the property, along the watershed line, the Department of Highways constructed a new highway which required cuts, and a fill approximately 35 feet at its highest point. The excavation and fill work left an unseeded and unsodded area exposed to the weather for about a year. Shortly after this work was commenced one of the plaintiffs noticed mud and silt entering the lake. Eventually it reached such a depth that it became necessary to remove it. The claimed damages were based upon the injury to the lake, including the reasonable cost of cleaning it out.

The Commonwealth’s first contention is that this work was done by an independent contractor and consequently it is not liable. Appellant has apparently overlooked the line of cases which allow recovery against the Commonwealth or a political subdivision on the ground that injury to land constitutes a taking for which compensation must be paid. Adkins v. Harlan County, 259 Ky. 400, 82 S.W.2d 425; Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695; Keck v. Hafley, Ky., 237 S.W.2d 527. See also Oberst and Lewis, “Claims Against the State of Kentucky— Reverse Eminent Domain”, 42 Kentucky Law Journal 163. The Commonwealth is responsible for work done in accordance with its plans and specifications, regardless of who performs it. The possible liability of the independent contractor doing the work is based on another ground. See the Adkins case just above cited.

The next contention is that it was not the highway construction work which caused the injury to plaintiffs’ lake but the natural erosion of the soil. The Commonwealth cites a case involving riparian rights, but even under the principles governing such rights, the upper owner cannot use his land in such a way as to injure the property of a lower riparian owner. See Inland Steel Co. v. Isaacs, 283 Ky. 770, 143 S.W.2d 503.

We do not think this is strictly a riparian rights case but the controlling considerations are the same. In Nebo Consol. Coal & Coking Co. v. Lynch, 141 Ky. 711, 133 S.W. 763, it was recognized that where the operation of a coal mine resulted in the deposit of deleterious substances which washed into a stream and injured the lands of a lower riparian owner, the wrongful acts constituted a nuisance. In Keck v. Hafley, Ky., 237 S.W.2d 527, the Commonwealth altered the channel of a stream so as to cause flooding of the plaintiff’s property. In Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695, where the Highway Department had constructed a culvert which caused flooding of the plaintiffs’ land, it was held that the injury constituted' a “trespass amounting to a taking”. Whether this case involves riparian rights, trespass or a nuisance, the Commonwealth must respond in damages if the use of its land wrongfully causes injury to the lands of others. See Louisville Refining Co. v. Mudd, Ky., 339 S.W.2d 181; Associated Contractors Stone Co. v. Pewee Val. Sanitarium and Hospital, Ky., 376 S.W.2d 316; and Louisville and Jefferson County Air Board v. Porter, Ky., 397 S.W.2d 146.

It is claimed by the plaintiffs that the Commonwealth materially changed the contour of the land and thereby created an unnatural condition which, in combination with natural forces, caused the damages. We believe if these acts had been committed by a private person, the plaintiffs would have had a cause of action. It was so held in Atlanta & B. Air Line Ry. v. Wood, 160 Ala. 657, 49 So. 426, which is the closest case we have been able to find on the factual situation. The commission of this wrong by the Commonwealth constituted a pro tanto taking of plaintiffs’ land. It may be noted that the Commonwealth did not object to the instructions given the jury which pitched liability exclusively on the finding that the Commonwealth had caused dirt to run into plaintiffs’ lake. Instruction No. 2 offered by the Commonwealth was in principle exactly the same.

It is our conclusion that the issues of causation and liability were properly submitted to the jury.

The final contention of the Commonwealth is that the plaintiffs failed to prove with particularity the amount of mud traceable to its highway construction work as distinguished from silt naturally flowing into the lake from other sources. This, of course, could not be precisely proven but we believe the direct and circumstantial evidence was sufficient to permit the jury reasonably to allocate the damage caused by the Commonwealth’s mud. The instructions directed them to exclude from the allowance of damages that portion which came from other sources.

We are doubtful that the proper measure of damages was applied in this case, but the Commonwealth raises no question on the point. As such issue was submitted, the proof would have justified a substantially higher verdict, which indicates the jury restricted the damages to the injuries traceable to the Commonwealth’s work.

The trial court did not err in refusing to direct a verdict for the Commonwealth.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Clarence E. STEPHENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.

      Wheeler B. Boone, Frank C. Henry, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

Appellant was convicted of indulging in indecent and immoral practices with a child under fifteen years of age as denounced by KRS 435.105. A jury fixed his punishment at confinement for five years in the penitentiary.

In seeking to reverse the conviction it is urged that the court erred in permitting, over appellant’s objections, the indictment to be amended by changing the date when the offense was allegedly committed. Rule 6.16 of our Rules of Criminal Procedure provides:

“The court may permit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”

It is evident that the specific offense embraced within the indictment was that of violating KRS 435.105. Only the date of the occurrence of the alleged offense was changed by the amendment. Time is not a necessary element of the offense denounced by KRS 435.105 because the prosecution for its violation is not barred by a lapse of time. However, an indictment must show that the offense stated therein was committed before the indictment was returned. Browning v. Commonwealth, Ky., 351 S.W.2d 499 and Salyers v. Commonwealth, Ky., 255 S.W.2d 605. See Roberson’s New Kentucky Criminal Law and Procedure, section 1750, page 1845. It is our opinion that, since the amendment made no substantive change in the indictment, the amendment did not state an additional or different offense within the meaning of RCr 6.16. This interpretation is not inconsistent with that given Federal Rule 7(e) (from which RCr 6.16 is adapted). In Bullock v. United States, 265 F.2d 683 (6th Cir.), it was held that a criminal contempt information may be amended, without violating Federal Rule 7(e), by charging the accused with acts which were not the same acts originally charged against him.

Also appellant was not prejudiced by the amendment. While the criminal act charged in the indictment (as amended) occurred on a date different from that previously stated in the indictment, appellant made no motion for continuance nor did he establish that the amendment prevented him from obtaining a fair trial. See Brown v. Commonwealth, Ky., 378 S.W.2d 608. Appellant’s defense was that his conduct with the infant prosecutrix on the day specified in the amended indictment was excusable under the circumstances. Hence, he presented his sole defense and he makes no claim that he could have established a more convincing one had he been granted a continuance.

Appellant next contends that the voir dire examination of the infant prose-cutrix did not sufficiently qualify her as a witness. Upon questions propounded by the trial court and the commonwealth’s attorney the responses of the eleven year old prosecutrix tended to show that she had the ability to observe, recollect and truthfully narrate the facts. Cf. Moore v. Commonwealth, Ky., 384 S.W.2d 498. Consequently the trial court’s finding that the witness was qualified is justified.

It is further contended that the trial court erred in not permitting appellant to introduce a written opinion and judgment granting the prosecutrix’s mother a divorce from, appellant. It is urged that this opinion and judgment contain statements and provisions which would affect the credibility of the testimony of the pros-ecutrix’s mother. The trial court properly refused to permit introduction of these documents since this would obviously have been an improper method of impeaching the witness.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Boyd PICKLESIMER, Widower, et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Jarvis Allen, Pikeville, for appellant.
    Marcus Mann, Earl R. Cooper, Salyers-ville, for appellees.
   CULLEN, Commissioner.

Appellees owned a 175-acre Magoffin County farm of which 20 acres were creek-bottom land and the rest hillside. The improvements were modest. The state condemned, for highway purposes, about 10 acres of the bottom land, on which were a tobacco barn and three small outbuildings, and some six acres of hill land. The jury awarded damages of $30,000. From the judgment for that amount the Commonwealth, Department of Highways, has appealed.

This case is indistinguishable in principle from Commonwealth, Department of Highways v. Harvey, Ky., 396 S.W.2d 511 (decided November 19, 1965). The issues are substantially identical and the decisions on those issues in Harvey are controlling here.

Here, as in Harvey, the witnesses were in substantial agreement as to “after” value; the only conflict was as to “before” value.

Here, as in Harvey, the principal landowner did not qualify as an expert on land values and he should not have been permitted to testify as such. He showed no knowledge of sales of other land and his estimate of value of his own farm was supported by nothing other than the statement, “I had a fellow that wanted to buy it and I think he would have paid me $40,000 for it.”

Here, as in Harvey, the unsupported estimates of value by the expert witnesses for the landowners, considered in the light of the circumstances disclosed by the other evidence in the case, appear extravagant and not of sufficient probative value to sustain a verdict as large as the one returned. One of the witnesses put the value at $35,000; the other at $44,900. (The Commonwealth’s witnesses’ estimates were $13,-500 and $15,700.) Neither of the landowners’ witnesses gave anything other than bold assertion to support his estimate. When pressed to distinguish sales of apparently comparable land at much lower prices than their estimates they resorted to such statements as, “I use my own judgment about what I figure a piece of land is worth.” One of them indicated that he was basing his estimate of value in part on what the state had paid or offered for other tracts needed for highway purposes. The farm as described in the evidence does not have high value features, either by location or development, and the bare testimony of the landowners’ witnesses simply does not have the quality to convince a reasonable mind that the farm has the high value they assign to it. In order to accept the estimates of value by the landowners’ witnesses one would be compelled to believe that the 10 acres of bottom land and six acres of hill land taken _ for the highway represented close to 90 percent of the value of the farm. This is incredible.

The Commonwealth complains of the use of colored photographs. We touched on that point too in Harvey and what we said there is equally applicable here.

The judgment is reversed with directions to grant a new trial.


text:
    Jackie Lee BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.

      Jackie Lee Brown, pro se.
    Robert Matthews, Charles Runyan, Frankfort, for appellee.
   HILL, Judge.

Jackie Lee Brown is appealing pro se and in forma pauperis from a judgment overruling his motion to vacate a 1963 judgment convicting him of storehouse breaking under KRS 433.190. He was given a five-year sentence and served part of it before being paroled. He later got into some difficulty and his parole was revoked. A hearing was held on his motion at which appellant was not present but was represented by two court-appointed attorneys.

The motion to vacate is legally insufficient. It refers to constitutional rights, bill of rights, and due process of law, but it is indefinite. We shall consider that it was appellant’s intention to allege that the evidence was insufficient to convict, improper evidence was admitted, he was inadequately represented by counsel, and prejudicial remarks were made by the Commonwealth’s attorney.

At his trial in 1963, appellant was represented by court-appointed counsel Gordon Iler. In his motion to vacate, the court again appointed Mr. Iler along with Robert M. Short to assist him.

There was no appeal prosecuted from the original judgment of conviction. We have held that the introduction of inadmissible evidence and insufficiency of the evidence to convict do not constitute sufficient grounds to justify relief under RCr 11.42. Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965) and King v. Commonwealth, Ky., 387 S.W.2d 582 (1965).

Neither is the bare allegation that he had “inadequate” counsel sufficient to entitle appellant to relief. Cf. Brown v. Commonwealth, Ky., 396 S.W.2d 773, decided November 26, 1965, and Moore v. Commonwealth, Ky., 394 S.W.2d 931, decided October 22, 1965.

There remains the insufficient charge that the Commonwealth’s attorney was guilty of misconduct prejudicial to appellant. The charge is nothing more than a conclusion. He does not allege in what manner the Commonwealth’s attorney misbehaved.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    John T. HOEHLE, Appellant, v. Helen J. HOEHLE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.

      Charles B. Zirkle, William J. Francis, Louisville, for appellant.
    Richard H. Nash, Louisville, for appel-lee.
   WILLIAMS, Judge.

The appellee, Helen J. Hoehle, was granted an absolute divorce from her husband, John T. Hoehle, by the Jefferson Circuit Court. The husband appeals from that portion of the judgment which awarded property and alimony to the wife, and ordered certain restoration by the husband.

The parties were first married in 1936. Two sons were born of the marriage, both of whom are emancipated. The parties were divorced once before for a short time, but remarried in 1953. At the time of this divorce they had accumulated very little property although they had sent their two sons through college. The chancellor awarded all of the household goods, the house and lot, and the automobile, to the wife. In addition, the husband was directed to restore to the wife the sum of $16,000, subject to a credit of $4,000, and to pay alimony to the wife in the sum of $20 per week.

The household goods were awarded to the wife in the first divorce judgment. The automobile was purchased by the wife and was being paid for out of her salary. The wife made the down payment on the house and was making the payments on the mortgage. What she was awarded was the equity in the house, with the duty of keeping the mortgage payments current. We can find no error in the lower court’s finding and judgment regarding the above-mentioned property.

The wife agrees that the restoration award was erroneous. “Under our decisions, if the wife’s earnings have gone for living expenses and have not been converted into the form of property, she has no restorable interest in property of the husband.” Legel v. Legel, Ky., 382 S.W.2d 870 (1964); Pearson v. Pearson, Ky., 350 S.W.2d 141 (1961); Heustis v. Heustis, Ky., 346 S.W.2d 778 (1961).

The husband’s net income is $94.13 per week. The lower court awarded $20 per week alimony which the wife says should be more, especially in view of the fact that the restoration awarded her is now being taken away. Whether the $20 per week alimony is sufficient under the present circumstances is a matter which addresses itself to the discretion of the trial court, and may be brought before it by proper motion.

The judgment is reversed insofar as it orders restoration by the husband to the wife. The judgment is affirmed in all other particulars.


text:
    John Henry HUMPHRIES, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    John Henry Humphries, Jr., in pro. per.
    Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

John Henry Humphries, Jr., serving a two-year sentence for fraudulently selling mortgaged property, filed a motion in the trial court under RCr 11.42 to vacate the judgment of conviction. The motion was overruled without a hearing and Hum-phries has appealed.

Humphries’ motion alleged (1) he had no intent to defraud and there was no proof of criminal intent; and (2) his court-appointed counsel “failed to advise petitioner of his constitutional rights,” and advised him that “the only way out was to plead guilty and take two years.”

As concerns ground No. 1, insufficiency of the evidence is not a ground for relief under RCr 11.42. See King v. Commonwealth, Ky., 387 S.W.2d S82. Furthermore, Humphries pleaded guilty so no proof was required.

Under the decision in Lawson v. Commonwealth, Ky., 386 S.W.2d 734, the allegations were not sufficient to entitle Humphries to a hearing on ground No. 2.

The judgment is affirmed.


text:
    Carl BROWN et al., Appellants, v. DEPARTMENT OF HIGHWAYS, Commonwealth of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.

      F. Byrd Hogg, Whitesburg, for appellants.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Jarvis Allen, Pikeville, for ap-pellees.
   CLAY, Commissioner.

The Board of Claims, created by KRS 44.070, denied appellants’ claims for damages arising out of an automobile accident which occurred when a car driven by appellant Leona Brown slid off U. S. Highway 119 near Whitesburg. The decision was affirmed on appeal to the circuit court. Appellants contend the findings of the Board are not supported by sufficient substantial evidence and the Board erroneously construed and applied the law.

Appellant Leona Brown was driving, in the daytime, on the highway as it winds down Pine Mountain. The Highway Department was cleaning out the ditch-line on the right side pf the road and was using a machine to scrape the dirt across it to the other side. Apparently there had been a recent rain because this operation left substantial deposits of mud on the highway.

As appellant approached the scene of work she was flagged down by an employee of the Highway Department, and then permitted to proceed since no other traffic was involved. A short distance beyond the road machinery and a second flagman (whom she passed), the highway curved to the right. Appellant testified she was driving slowly and as she went into the curve she observed a man “standing there”. She testified, “I let down on the brake just enough to make sure I could go over the mud and water around the man * * * Her car went into a skid and went through the guardrail on the left side of the highway.

The Board took the view that the flagmen and signs adequately warned appellant of the danger and concluded that the accident was the fault of the plaintiff. The Board relied on the case of Robinson v. Bybee, Ky., 271 S.W.2d 873; 299 S.W.2d 791, which involved a road that had been freshly oiled and warning signs that had given adequate notice.

Appellants contend that case is not applicable because, while she was given notice by highway employees of the ditching operation, she was not advised of the dangerous road surface created by the presence of mud. Appellants apparently overlook the fact, however, that she had actual notice of the hazardous condition of the roadway. She knew of the presence of mud and water and testified she was proceeding slowly because of this hazard. Whether or not the Highway Department was negligent in creating this condition, she was fully aware of it. It was the method by which she operated her automobile under the known hazardous conditions that apparently was the proximate cause of the accident. See Cargo Truck Leasing Company v. Piper, Ky., 394 S.W.2d 472. At least there was substantial evidence which would permit the Board of Claims to draw that conclusion.

Appellants contend that the particular muddy spot upon which she skidded was a hidden defect and rely upon Commonwealth, Dept. of Highways v. General & Excess Insurance Co., Ky., 355 S.W.2d 695. Obviously that case is not applicable because there the plaintiff had no notice of any kind of the existence of a dangerous condition. Here the appellant driver had notice not only from signs and flagmen but also as a result of her own observation. Being aware of the hazard, there is no sound basis for her claim that the cause of the accident, as a matter of law, was the negligence of the Highway Department.

The judgment is affirmed.


text:
    Frank CARTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Frank Carter, in pro. per.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

The trial court overruled, without a hearing, the motion of Frank Carter under RCr 11.42 to vacate the judgment of conviction under which he is serving a 21-year sentence for armed assault with intent to rob. Carter has appealed.

The motion asserted that Carter was charged with armed robbery, for which the only permissible penalties are life imprisonment or death, and that the 21-year sentence therefore is void. However, the record of the trial completely refutes this— it shows that the indictment was for assault with a deadly weapon with intent to rob. That the indictment may have been defective in form would not be a ground for relief under RCr 11.42. King v. Commonwealth, Ky., 387 S.W.2d 582.

The trial court properly overruled the motion.

Carter had made a previous motion to set aside the judgment, which had been overruled. He seems to be under the impression that the present appeal embraces that ruling. It does not. However, we have examined the previous motion and we find nothing in it that would have entitled Carter to a hearing.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    Leslie W. TUSSEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Leslie W. Tussey, pro se.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

This is an anomalous action by Leslie W. Tussey for himself which we will treat, as the Commonwealth did, as an appeal of Tussey’s conviction for homicide. He was sentenced to fifteen years in the penitentiary.

Tussey complains that the trial court abused its discretion in failing to grant him a continuance. The record discloses that Tussey was indicted on January 12, 1965, six days later was supplied with the names of twelve witnesses who would testify against him on behalf of the Commonwealth, and the case was set for trial on February 4, 1965. On that date both the Commonwealth and the defendant answered ready for trial. All of these witnesses were available to Tussey and his counsel, and we find no abuse of discretion on the part of the trial court in refusing to grant a continuance. Short of such a showing, the action of the trial court should not be disturbed. Minix v. Commonwealth (1952), Ky., 249 S.W.2d 48; Webb v. Commonwealth (1959), Ky., 330 S.W.2d 415; Collins v. Commonwealth (1965), Ky., 392 S.W.2d 77. While one of the jurors did inquire of the court when Tussey would be eligible for parole if convicted, the court made no response.

We find the appellant’s other allegations of errors in the proceedings of no merit.

Judgment is affirmed.


author: CULLEN, Commissioner. PALMORE, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mary C. HOPSON, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Richard H. Peek, Paducah, for appellant.
    Ben B. Wright, Cadiz, for appellees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment awarding the appellee landowners $4,250 as the difference in the market value of their farm attributable to the condemnation of 5.5 acres of the farm for widening of an unlimited access highway.

We are reversing the judgment for the same reason as in Commonwealth, Department of Highways v. Hopson, Jr., et al., Ky., 396 S.W.2d 805 (decided November 26, 1965) ; i. e., the court erroneously permitted the landowners’ witnesses, over objection, to put price tags on “damage” factors.

Further reversible error was committed in permitting the landowners’ witnesses to assign substantial damages to an impeding of future direct access, because of a ditch on the right of way, from the highway to a particular area of the farm (to which no access had been enjoyed prior to the condemnation). See Commonwealth, Department of Highways v. Denny, Ky., 385 S.W.2d 776.

While the amount of the verdict is only some $1,600 to $2,000 above the amount of damages estimated by the Commonwealth’s witnesses, we cannot say that this amount is so trivial as to warrant treating the errors as being nonprejudicial. (The commissioners’ award in county court was only $545.)

The judgment is reversed with directions to grant a new trial.

PALMORE, Judge

(dissenting).

This is another of those cases in which the actual amount in controversy is less than $2500, though it is disclosed by the evidence and, not by the pleadings and judgment. Thus it is only through technicality that the appeal is allowed as a matter of right. Had it been required to come before us on a motion for appeal the motion would have been considered from the standpoint of whether the case presents any unusual or important issues on which an opinion by this court might be of particular service to the bench and bar. This case does not present any such issues, and I would affirm summarily.


text:
    William Anderson DALE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Frank E. Haddad, Jr., William B. Goldberg, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant, age 63, shot and killed his wife, age 60. Upon trial he was found guilty of voluntary manslaughter and his punishment fixed at 9 years’ confinement in the penitentiary.

It is urged that the evidence is insufficient to sustain the verdict and judgment. The only eye-witness to the uxoricide was the appellant who did not testify or present any witnesses to sustain his claim of self-defense. He relied solely upon the evidence introduced in behalf of the Commonwealth to acquit him. This evidence shows that appellant told a police officer that he and his wife had an argument and scuffle during which she nicked him on the arm with a knife. In recounting appellant’s statement the police officer testified:

“* * * jje told her to quit and not to do that and if she did he was going to kill her. So, he then went to the bedroom to a chest of drawers and opened the top drawer and got a 38 Smith and Wesson revolver and walked back to the dining room and at that time he said that she had this knife raised up ready to cut him again and that’s when he fired 4 shots into her body.”

It was shown that the deceased was shot once in the head, once in the left shoulder and twice in the left side of the chest.

In Lee v. Commonwealth, Ky., 329 S.W.2d 57, we said that where some of the evidence casts doubt on the accused’s claim of self-defense the issue should be submitted to the jury. Also see Ferguson v. Commonwealth, Ky., 373 S.W.2d 729. Applying the rule enunciated by these cases to the instant one we believe that appellant’s threat to kill his wife, the fact that he procured a pistol, returned to his wife’s presence and shot her and the number and location of her wounds warranted submission of this case to the jury.

It is contended that the police officer’s one reference to appellant’s “past record” was erroneous and prejudicial. While the reference constitutes error we observe that it was not responsive to the question asked and that the trial court sustained the objection made to it. Under these circumstances we do not believe it was prejudicial. RCr 9.26.

It is further contended that the attorney for the commonwealth made improper remarks in his closing argument to the jury. That part of his argument to which appellant objected was that appellant had not promptly notified the police of the slaying. While there is no direct evidence in the record whether appellant did or did not call the police we believe that the prosecutor’s statement was based upon a permissible inference drawn from the testimony on this point.

The judgment is affirmed.


author: NORVELL, Justice. NORVELL, Justice. POPE, Justice

text:
      Elizabeth L. COX and Jake L. Hamon, Petitioners, v. Leland DAVISON et al., Respondents. Jake L. HAMON et al. v. Leland DAVISON et al.
    Nos. A-10612, A-10613.
    Supreme Court of Texas.
    Oct. 20, 1965.
    Rehearing Denied Dec. 8, 1965.

      Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Midland, for petitioners.
    Frank C. Ashby, Garland Casebier, Midland, for respondents.
   NORVELL, Justice.

The Texas rule is that a cotenant who produces minerals from common property without having secured the consent of his cotenants is accountable to them on the basis of the value of the minerals taken less the necessary and reasonable cost of producing and marketing the same. Burnham v. Hardy Oil Co., 147 S.W. 330 (Tex.Civ.App., 1912), affirmed, 108 Tex. 555, 195 S.W. 1139 (1917); Stroud v. Guffey, 3 S.W.2d 592 (Tex.Civ.App., 1927), affirmed, 16 S.W.2d 527, 64 A.L.R. 730 (Tex.Sup., 1929); White v. Smyth, 214 S.W.2d 953 (Tex.Civ.App., 1947), affirmed, 147 Tex. 272, 214 S.W.2d 967, 5 A.L.R.2d 1348 (1948); Davis v. Atlantic Oil Producing Co., 87 F.2d 75 (5th Cir. 1936). The controlling question in this case is whether under the facts here presented interest charges are a part of the necessary and reasonable cost of producing and marketing.

Leland Davison and others, respondents here, are the producing cotenants. The petitioners, Elizabeth L. Cox and Jake L. Hamon are the nonconsenting cotenants. Judgments in two cases (Nos. 6269 and 6270 on the District Court’s docket) were rendered by the trial court in favor of Leland Davison and his associates. These judgments were affirmed by the Court of Civil Appeals in one opinion as the legal questions in both cases were identical. 385 S.W.2d 864.

It was stipulated that respondents, Leland Davison and those allied with him owned 28/32 of 13/16 leasehold working interest in and to the four quarter sections involved in the two suits under lease from others than petitioners; that petitioners Elizabeth L. Cox and Jake L. Hamon owned 3/32 of all oil, gas and other minerals in and under and that may be produced from said four tracts; that the Cox-Hamon interest was not under lease; that respondents desired to develop the tracts by drilling thereon, but petitioners refused to join in the proposed program, whereupon respondents at their own expense drilled wells upon the premises and completed the same as producers. By this stipulation the dispute was reduced to one involving interest charges. As stated by the Court of Civil Appeals, the only question presented for decision is whether respondents in an accounting with petitioners, the nonconsent-ing cotenants^were entitled to a credit claim of six per cent interest on petitioners’ proportionate part .of the money advanced by respondents to pay for producing and selling the minerals from the lands held by the parties as tenants in common.

We are unable to agree with the holdings of the trial court and the Court of Civil Appeals. Interest is an incident of debt and is not payable in the absence of an obligation binding one person to pay money to another. Barker v. Torrey, 69 Tex. 7, 4 S.W. 646 (1887); Maryland Casualty Co. v. Lee, 165 S.W.2d 135, (Tex.Civ.App., 1942, wr. ref.). The obligation may be expressly set forth in a contract or it may be implied in law. Where one cotenant decides to develop a common property, the law raises no obligation binding a nonjoining cotenant to pay a part of the costs of development. However, when mineral property is developed by one cotenant and as a result thereof he acquires minerals which at one time underlay the common property, the problem of accounting to the nonconsenting cotenant arises. Cases dealing with debts or obligations implied by law are not directly applicable. In Shaw & Estes v. Texas Consolidated Oils, 299 S.W.2d 307 (Tex.Civ.App.1957, ref. n. r. e.) the distinction between circumstances wherein a cotenant may be bound by the doctrine of implied obligation and situations in which he may not was discussed. Following Stephenson v. Luttrell, 107 Tex. 320, 179 S.W. 260 (1915), the Court of Civil Appeals in an opinion by Mr. Justice Gannon said:

[Wjith reference to money necessarily and beneficially spent, the (Supreme Court in Stephenson v. Luttrell) continues: ‘ * * * the principle of contribution has no element of speculation in it. In cases of this kind it is implied that the person seeking contribution had authority from his co-tenant to expend the money that was actually spent. It is the same as if he had been actually instructed by his cotenant to expend that much money for him in improving the lot. This much is implied by law.’ Because the principle is so well known, it is unnecessary to cite authority for the proposition that a cotenant incurring speculative expense in connection with exploration and development of oil, gas, and mineral properties is not entitled to a personal judgment against his cotenant for reimbursement, but only to be reimbursed out of production if and when production results.”

Both the trial court and the Court of Civil Appeals recognized that Cox and Hamon owed no debt or personal obligation to respondents. As there is no debt or enforceable personal obligation, it follows that a claim for interest as such cannot be supported. Under our view of the case it would be immaterial whether respondents actually borrowed money and paid interest thereon in order to prosecute their drilling operations. We perceive no good reason when accountability is the problem at hand, why a distinction should be made between an operator who borrows money to hire a drilling rig and one who pays such rental charges out of his own funds.

We realize that in equitable accounting between cotenants, it is not essential that legal concepts be technically or strictly construed. Ordinarily, money will make money and it is probable that had the producing cotenants put their money to work in some other business undertaking, they probably would have realized some returns therefrom. Arguments may be and have been marshalled to support the equitable claim of the producer. It is he who takes the risk and, if successful, he usually produces financial gain for both himself and his cotenants. However, there is something to be said for the nonjoining cotenant. Actual production of minerals is not the only way by which benefits may be obtained from the ownership of mineral interests in land. Drilling may and often does condemn property for mineral purposes. A tenant in common as the owner of property is legally entitled to make such use of it as he sees fit, subject to those qualifications necessarily imposed by society for the promotion of the public good and those dictated by the qualities of the property and the characteristics of its ownership. The right of one cotenant to appropriate the property of another is sanctioned only because the mineral estate is such that necessarily the rights of one cotenant must be interfered with if another cotenant is to be permitted to exercise those rights properly belonging to him. As between the producing cotenant and the non-joining cotenant a balance of equities has been struck. The rule of accountability is the proportionate market value of the product less the proportionate necessary and reasonable costs of producing and marketing. This measure in its present form does not include interest and we decline to rewrite the formula.

In both cases, the judgments of the trial court and the Court of Civil Appeals are reversed and judgments here rendered that respondents take nothing.

On Motion for Rehearing

NORVELL, Justice.

The respondents in their motion for rehearing say that our original opinion tends to leave the impression that the rule announced therein is one of long standing, whereas this case is actually one of first impression. Particular emphasis is laid upon the statement that the “measure (of accountability) in its present form does not include interest and we decline to rewrite the formula*'. It is urged that this Court has never held that interest is not a recoverable cost of production and consequently it would not be a rewriting of the formula to now say that interest is a recoverable cost of production.

To allow interest as a part of the production costs would constitute a variance from the established formula to the extent of going contrary to the general rule that interest will not be allowed in the absence of an obligation to pay money owed by the person sought to be held upon an interest charge. This is the rule supported by the Texas cases. Of course the essential obligation to pay may be either expressed or implied by law. The argument urged here and accepted by the Court of Civil Appeals, as evidenced by the cases cited in its opinion, is that under the factual situation presented by the record, the law has in effect implied an obligation binding the non-consenting cotenants to pay interest charges to the operating cotenant. But, here the obligation runs the other way. The operating cotenant has taken and sold petroleum products belonging to the non-consenting cotenant. However, because of the peculiar legal relationship existing between the parties, — they being cotenants of oil producing property, the usual rule of conversion is not applied. The problem is one of accounting and we have held that in accounting the operating cotenant is entitled to a credit for his necessary and reasonable cost of producing and marketing the same. This, of course, does not mean that the non-consenting cotenant owed an obligation of any kind to the operating cotenant. This case is not analogous to one involving the payment of taxes or the discharge of any other legal obligation owed by the non-consenting co-tenant. No implied obligation can arise upon the theory that the operating cotenant has with the consent or upon the implied request of petitioners, expended money for the mutual benefit of the estate held in common by the parties. The petitioners here are non-consenting cotenants. For these reasons we say that interest is not a part of the accounting formula. Invariably, the reports of the Texas decisions which allow a claim of reimbursement asserted by one cotenant against another, will disclose that some obligation of the nonpaying cotenant was lessened or discharged, or that the non-paying cotenant expressly or impliedly consented to an expenditure for the mutual benefit of the estate from which an obligation to repay could be implied. Such is not the situation here.

Respondents’ motion for rehearing is overruled.

POPE, Justice

(dissenting).

The former dissenting opinion is withdrawn and this one is substituted for it.

The majority refuses to allow the producing cotenants to recover legal interest upon the capital they advanced to drill sixteen producing wells in which the nonproducing cotenants proportionately participate. The basis for this result appears to be either that (1) the nonproducing cotenants did not agree to pay the cost for which reason there is no debt, or (2) costs are recoverable only in nonspeculative beneficial advances, and the drilling of oil wells is speculative, or (3) policy reasons, with respect to interest only, forbid reimbursement of costs to the active cotenant who took all the risk. We shall examine these reasons.

Petitioners Cox and Hamon own %2 of the oil, gas and other minerals in the tracts on which Davison drilled sixteen producing wells. The parties have agreed that Davi-son advanced $114,069.54 for the sole benefit of the passive cotenants as their share of the costs, and that the active cotenants vainly sought the joinder of the nonopera-tors in the drilling venture. Despite some disturbing language in the course of the majority opinion, it is the settled law of Texas that an active cotenant may recover out of the production his necessary and reasonable cost of producing and marketing the product. We arrive, therefore, at a statement of the narrow issue. Is interest on the capital advanced by the active co-tenants recoverable as an item of cost or expense? It is my judgment that the majority at once falls into error by posing a variant and misleading question. It asks: Are costs expended by the active cotenants for the benefit of the passive cotenants in the nature of debts? Concluding that they are not debts the majority holds that interest is not collectible. In my opinion, the issue is shifted from, “Is the interest on capital advanced a cost?” to “Is the capital advanced a debt?” The latter is not the real problem at all. The basis for the settled law that the passive cotenant must account to the active one upon successful completion of a. well, is that it restores to the active co-tenant the funds he expended in the venture, the costs he incurred for the benefit of all cotenants. The extent to which this rule applies and the range in which the passive cotenant’s share is held accountable is illustrated in Burnham v. Hardy Oil Co., 147 S.W. 330, 334 (Tex.Civ.App.1912), affirmed 108 Tex. 555, 195 S.W. 1139 (1917):

“As to the appellee the Rio Bravo Oil Company, which asks for an af-firmance of the judgment in its favor, we think it would be improper to do so. Concerning its liability to plaintiffs with reference to oil taken from the land, we think the Texas Land & Cattle Company, having an unquestioned undivided interest in the league, had, by virtue of its undivided ownership in the land, the right to extract oil from the tract. In case oil was not found, it would have to bear the loss of its experiment and could not call on a nonparticipating cotenant for contribution. But where it found oil and marketed the same, the cotenant requiring it to account to him for his interest in the product, measured by his interest in the land, would be required to allow his proportion of the necessary cost of producing and marketing the product. Wolfe v. Childs, 42 Colo. 121, 94 P. 292, 126 Am.St.Rep. 152. This reasonable expense would include the cost of the machinery and appliances and other means necessary and proper to the production. In other words, all reasonable expenses incurred in the production and marketing would have to be deducted from the gross value, before a division of the proceeds between the cotenants. The result of the above is that the Texas Land & Cattle Company, or its lessees of the land, had the right to pay and to charge to the fund derived from the product the reasonable cost of what was necessary to he done in producing and marketing the oil. This being so, it, or its lessee, had the right to contract with the Rio Bravo Oil Company for a pumping plant and a pipe line for utilizing the oil and to pay for the same, either in money or in oil; and in a suit by other cotenants against the producing cotenant for its share of the value of the oil, the cost of the plant and pipe line to the extent that it is fair and reasonable should be allowed. And the Rio Bravo Oil Company would not be liable to plaintiffs for the oil it received for such necessary improvements, if it was a fair equivalent therefor. * *

Many cases hold that the passive coten-ant must pay his share of the costs but they do not do so because the items are debts. The recovery by the active cotenant is not as a creditor. He recovers costs as a charge against the proceeds of the oil or other commodity. He recovers his costs, not his debt. Stroud v. Guffey, 3 S.W.2d 592 (Tex.Civ.App.1927), affirmed 16 S.W.2d 527, 64 A.L.R. 730 (Tex.Com.App.1929); Durham v. Scrivener, 259 S.W. 606, 614 (Tex.Civ.App.1923), affirmed 270 S.W. 161 (Tex.Com.App.1925); Rosse v. Northern Pump Co., 353 S.W.2d 287 (Tex.Civ.App. 1962, writ ref., n. r. e.); Estes v. Texas Consolidated Oils, 266 S.W.2d 272, 275 (Tex.Civ.App.1954, no writ).

The majority cites cases which hold that interest is an incident of debt, which is true; and then concludes no debt, no interest. That is not true. Interest is a statutory creature in Texas. Article 5069 says that “ ‘Interest’ is the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money * * *_» What the majority overlooks is that interest can arise by law as well as by contract. Bell v. C. J. Gerlach & Bro., 205 S.W. 470, 471 (Tex.Civ.App.1917, no writ). We shall mention a few instances. In Donaldson v. Meyer, 261 S.W. 369 (Tex.Com.App.1924), Donaldson furnished funds to Meyer under a contractual arrangement that failed by reason of Meyer’s mental incompetence. Donaldson’s prayer for contractual eight per cent interest on the sum of his advancements was denied but he was allowed six per cent legal interest, the Court saying:

“ * * * The j-jght 0f Donaldson to recover the $3,000 used by Meyer and wife as necessaries is not based on the contract that Meyer entered into, it having been ascertained that he was incapable of entering into a binding contract, but the relief given Donaldson is on the equitable ground that he is entitled to recover the money he had paid to Meyer, and which had been used by Meyer and his wife for necessaries, and, the right to recover not being based upon any contract of Meyer, then Donaldson could not recover the rate of interest mentioned in the contract, but could recover only the legal rate of 6 per cent.”

Norris v. Vaughn, 278 S.W.2d 582 (Tex.Civ.App.1955, no writ) allowed interest on a cotenant’s advancements for oil development and in so holding relied upon Schluter v. Sell, 194 S.W.2d 125, 133 (Tex.Civ.App.1946, no writ). Schluter sums up the reason for these holdings:

“It is the general rule that one who lends money to or makes advancements for another is entitled to interest, although nothing is said about interest. Parsons v. Parsons, Tex.Com.App., 284 S.W. 933; and in 40 Tex.Jur. 210, it is said that where ‘one co-tenant pays taxes on property jointly owned (he) is entitled to contribution, and the state’s lien for such taxes passes to him so that he has a lien on his co-tenant’s interest.’ Where pleaded interest is usually allowed on taxes paid by one having an interest in land from the date of payment. McDermott v. Steck Company, Tex.Civ.App., 138 S.W.2d 1106.”

In Hensel v. Kegans, 8 Tex.Civ.App. 583, 28 S.W. 705 (1894, no writ) the Court cited Freeman on Cotenancy for the principle that one cotenant who pays title expenses and advances taxes on behalf of another cotenant, upon principles of equity may recover his advancements, and enforce an implied lien. The Court’s order for remand was “with direction to the district court to ascertain and fix the amounts expended with lawful interest. * * * ” Accord: Wooley v. West, 391 S.W.2d 157, 161 (Tex.Civ.App.1965, writ ref. n. r. e.); Robinson v. Moore, 1 Tex.Civ.App. 93, 20 S.W. 994 (1892, no writ), cited with approval in Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, 627 (1937); Winn v. Winn, 131 Neb. 650, 269 N.W. 376, 379 (1936).

Hill v. Moore, 85 Tex. 335, 19 S.W. 162, 167 (1892) also concerned obligations imposed by law. A cotenant who advanced funds to perfect title and pay taxes was entitled to reimbursement and the Court decreed the manner:

“ * * * Looking to the relation of the parties to the land, and to the certificate by virtue of which it was acquired, we are of opinion that appellee will be entitled to the reasonable cost of procuring title to so much of the land as appellants may recover, with interest thereon from time title was obtained ; and, in addition to this, will be entitled to recover the sum paid as taxes on the lands appellants recover, with interest on same from time several payments may have been made. * * (Emphasis added.)

The second reason suggested by the majority opinion for denial of interest upon the capital advanced for the benefit of the passive cotenants is that the drilling of oil wells is speculative. Unless this is so, I can see no reason for the quotation from Stephenson v. Luttrell, 107 Tex. 320, 179 S.W. 260 and Shaw & Estes v. Texas Consolidated Oils, 299 S.W.2d 307 (Tex.Civ.App.1957). To the present time, the test has been one of viewing the situation after the drilling was completed. If the venture is unsuccessful it is speculative and the one taking all the risk suffers all the cost. If the well is completed as a producer, it is regarded as nonspeculative and the passive cotenant’s share is accountable proportionately. The elements of speculation are squeezed out by the time the venture is finished. This is the holding and the settled law as announced both in Luttrell and Texas Consolidated Oils. If it is the opinion of the majority that the drilling of sixteen producing oil wells, viewed after the fact, is speculative, it should clearly so state.

The third reason for the majority’s rejection of interest as a valid cost is based on policy. “Something (is) to be said for the non joining cotenant,” says the opinion, “Actual production of minerals is not the only way by which benefits may be obtained from the ownership of mineral interests in land. Drilling may and often does condemn property for mineral purposes.” Interest has not been allowed in the past and the Court declines “to rewrite the formula.” In a case of original impression about interest as a cost item, we hardly are rewriting anything. But the real fallacy of such an approach is the inherent inconsistency in applying the rule. The majority concedes that costs are recoverable and then, after assuming that interest is a cost, gives its reasons for rejecting this isolated cost item. Are we reduced to a case by case determination of policy on which items of costs will be allowed or disallowed? Whether interest is a cost at all is the question. The majority holds, however, that even if it be a cost, on policy grounds, it will not be allowed. For each claimed item of cost, the Court in the future will now determine anew the policy and equity of the many cost items.

We return to the only issue in the case. In a case in which it is admitted that the active cotenants advanced $114,069.54 for the passive cotenants who, without any risk of capital, became %2 owners of sixteen producing oil wells and were therefore benefited in a venture which in law was nonspeculative, are the active cotenants entitled to legal interest as costs for the “use or forbearance or detention of money”? We have cited a number of Texas authorities which have in fact allowed interest as costs.

On principles of cost accounting, interest on the funds advanced, if uncollected, is a loss. An active cotenant who already has employees and a drilling rig, nonetheless can charge off as costs the wages he pays and a fair rental for the use of his rig.

“Just as rent is the return for the use of land, and wages the return for the workman’s labor, so interest is considered as the return for the use of capital. Included in the proponents of this argument are economists, engineers, plant managers and owners who adhere to the economic interpretation of profits. ‘Net profit’ to them usually means pure profit, which is the profit that is attributed to the compensation for the risk taken in carrying on a business enterprise. Girded with this argument, the interest-inclusionist maintains that the interest upon the capital investment is just as logically a production cost item as is wages. To exclude it as an item of cost causes the production cost to be understated. By treating interest as a production cost (overhead expense), the resultant net profit is a pure profit or return for the business risk only. There is really a good argument for including interest as a cost, for to do so segregates the profit allocated to the use of capital goods from the profit attributed to the risk involved in the business venture. Certainly, if the production costs of two different enterprises in a given industry are to be comparable, where one business rents its plant and the other owns it, then interest on plant investment should be treated as a cost by the later concern. This is true because the rent paid by a tenant invariably includes an interest investment charge. Also, the interest on plant investment must be considered by the management in the long run, when selling prices are established, if an adequate return on the owner’s capital investment is to be earned.” Van Sickle, Cost Accounting-Fundamentals and Procedures, p. 270 (1938); See note, 3 Houston Law Review, 109, 112-113.

Whether interest is a proper item of cost is new to us. This is our first case. It is not new in other areas of the law. A patent owner can recover the revenues earned by an infringer, but he must allow the infrin-ger his production costs. In those cases interest as a cost item has often been closely examined. Even though the infringer is a wrongdoer, he may claim interest upon his capital outlay as a necessary cost item. He may do so whether he actually borrows money or merely furnishes his own capital to produce the sales. International Industries v. Warren Petroleum Corp., 248 F.2d 696, 702 (3rd Cir. 1957); W. H. Miner, Inc. v. Peerless Equipment Co., 115 F.2d 650 (7th Cir. 1940); Barber Asphalt Paving Co. v. Standard Asphalt & Rubber Co., 30 F.2d 281 (7th Cir. 1928); Permutit Co. v. Refinite Co., 27 F.2d 695 (7th Cir. 1927); Producers’ & Refiners’ Corporation v. Lehmann, 18 F.2d 492, 502 (8th Cir., 1927). International Industries, supra, cites many authorities for the rule and also states the reasons for it:

“ * * * The interest on the capital which the appropriator invests in his endeavor is allowed in an effort to arrive at a realistic determination of the actual costs in the standard of comparison analysis. This is a practical business problem to be solved by a method as accurate as possible, and the disal-lowance of interest would merely distort the actualities of the money expended.”

I would affirm.

HAMILTON, J., joins in this dissent.

      . Oklahoma has a rule of accountability between cotenants similar to that which obtains in this state. In Earp v. Mid-Continent Petroleum Corp., 167 Okl. 86, 87, 27 P.2d 855, 91 A.L.R. 188, the Court said:
      “[W]hen one tenant in common enters upon the tenancy and produces oil and gas, he is liable to account to his co-tenants for the market value of such production less the reasonable and necessary expense of developing, extracting, and marketing the same.”
      In Essley v. Mershon, Okl., 262 P.2d 417, 3 O. & G.Rep. 193 (1953) the Supreme Court of Oklahoma refused to recognize interest as a recoverable item of production and marketing expense because the claim, prior to judgment, was an unliquidated one. In Wood Oil Oo. v. Corporation Commission, Okl., 268 P.2d 878, 3 O. & G.Rep. 455 (1953) the Court refused to allow interest on the operating cost of a well largely upon the ground that there was no evidence to show that the operator “was charged or paid any interest on the funds it used in operating this well or that such expense was in any way necessary to obtaining the production now impounded in the hands of the crude oil purchaser.”