ELR Citation: ELR 20633
No(s). 73-2234 (6th Cir. Jun 21, 1974)

Plaintiff, owner of the surface estate of Kentucky coal-bearing lands, contends that defendant, who holds the mineral estate under a "broad-form" deed and is engaged in strip mining of the land, is acting under color of state law and taking plaintiff's property without due process or just compensation, all in violation of the Fifth and Fourteenth Amendments. The court finds that no state involvement exists such as would give a cause of action under 42 U.S.C. §1983, since the regulation of strip-mining by the state serves to narrow defendant's rights rather than enlarge them, and does not constitute a partnership, governmental function, or encouragement of the action. Further, the state judicial interpretation of a broad-form deed as rendering the mineral estate dominant to the point of destruction of the surface estate does no violence to traditional property law and will not be struck down by a federal court as a taking solely on the grounds that it seems unwise or harsh. The court also rules that previous holdings of a state court will not constitute state action so as to trigger the protections of §1983 unless the parties in that action were the same as those now seeking adjudication of their rights.

Counsel for Plaintiffs
William H. Allison
3208 West Broadway
Louisville, KY 40211

Counsel for Defendants
William J. Baird
Baird & Baird
P.O. Box 351
Pikeville, KY 41501

Donald Combs
Stephens, Combs & Page
First National Bank Building
Pikeville, KY 41501