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RENDERED: SEPTEMBER 23, 2010 TO BE PUBLISHED
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HAZARD COAL CORPORATION; WHITAKER APPELLANTS COAL CORPORATION; PERRYCOUNTY COAL CORPORATION; LOCUST GROVE, INC. ; AND TECO COAL CORPORATION
ON REVIEW FROM COURTOF APPEALS
V. CASE NO. 2007-CA-001712-MR
PERRYCIRCUIT COURTNO. 02-CI-00499

LARRYJ. KNIGHT AND EILEEN KNIGHT, APPELLEES AND, LARRYE. KNIGHTAND MARY KNIGHT
OPINIONOF THECOURT BYJUSTICE VENTERS
REVERSING
Appellants Hazard Coal Corporation, Whitaker Coal Corporation, Perry County Coal Corporation, Locust Grove, Inc., and TECO Coal Corporation appeal from a decision of the Court ofAppeals that reversed ajudgment of the Perry Circuit Court on the grounds that the Perry Circuit Court improperly conducted a bench trial in contravention of Appellees' (Larry J. Knight, Eileen Knight, Larry E. Knight, and Mary Knight) demand for ajury trial in the proceedings. For the reasons explained below, we agree with the Court of Appeals' conclusion that Appellees had notwaived their right to ajury trial. However, we further determine that Appellants were entitled to summary
judgment dismissing Appellees' complaint. Accordingly, we reverse the Court
of Appeals and remand the case to the Perry Circuit Court for entry of
summaryjudgment in favor of Appellants, and dismissal of Appellees' claims.
I. FACTUALAND PROCEDURAL BACKGROUND
Appellees are the owners of two contiguous tracts of surface property located on Fourseam Branch in Perry County. Appellants collectively are the owners of the minerals underlying the tracts and all of the rights and privileges thereunto granted by way of a severance deed filed in 1910 (hereinafter "Severance Deed") which severed the coal, minerals, and mineral products from the surface property.
In connection with their coal mining operations in the area, Appellants use and maintain a three-mile long coal haul road, part of which runs across the surface property owned by Appellees. The road runs from Kentucky Highway 1096 to the Davidson Branch facility, which is a site used by Appellants for moving their coal through the distribution chain. This facility includes a tipple, coal processing machinery, and a unit train loading facility to load coal onto railroad cars. It is undisputed that, in order to transport coal into the facility, Appellants use the road to haul coal mined from other, non

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