Atkinson v. Virginia Oil & Gas Co.
| Decision Date | 23 September 1913 |
| Parties | ATKINSON v. VIRGINIA OIL & GAS CO. |
| Court | West Virginia Supreme Court |
Submitted September 10, 1912.
Syllabus by the Court.
The lessor in an oil and gas lease, guaranteeing to him the payment of rental for gas wells and a supply of gas for his mansion house from the same, has a right of action at common law, and also by virtue of the provisions of chapter 62d of the Code of 1906, for injury to a producing and paying gas well on his premises by the percolation of water into the gas-bearing sand from an abandoned well on adjacent land consequent upon the failure of the owner of such abandoned well to plug it or adopt any means or measures for the prevention of such injury to the neighboring well of the lessor.
The remedies given to an adjacent or neighboring landowner by chapter 62d of the Code of 1906 are not exclusive.
In a declaration for such injury, it is not essential to aver that, at the time thereof, the plaintiff was in receipt of the gas rentals for the injured well, or supplied with gas therefrom for use in his mansion house, under the stipulations therefor in the lease.
Error to Circuit Court, Marshall County.
Action by R. M. Atkinson against the Virginia Oil & Gas Company, a corporation. Judgment for defendant, and plaintiff brings error. Reversed and remanded.
Noyes & Ritz, of Wheeling, for plaintiff in error.
S. G Smith and J. B. Sommerville, both of Wheeling, for defendant in error.
POFFENBARGER P.
The plaintiff's declaration in this action of trespass on the case, held insufficient on a demurrer thereto and to each of its four counts, claims a right of action for damages arising out of the following facts set forth in the declaration Owning a small tract of land, containing an acre and a half the plaintiff, on the 24th day of May, 1905, executed an oil and gas lease thereon in favor of John T. Scott, containing, among other things, an agreement on the part of the lessee to pay to the lessor $75 quarterly, in case a well should be found on the premises producing gas in sufficient quantities to justify the marketing of the same, the first payment to mature 30 days after the well should be turned into the pipe line for marketing. This lease was assigned by Scott to the Ohio Valley Gas Company which company completed a well on the property about the 1st of April, 1906, finding gas in paying quantities in the "Big Injun Sand," and connected it with the main line, and the gas therefrom was marketed off of the premises. A large adjoining tract was owned by one S. T. Alley, who gave a lease thereon for oil and gas purposes to the Virginia Oil & Gas Company, or to some one who assigned it to that company. In the spring of 1907, the Virginia Oil & Gas Company drilled a well on the Alley land into the "Big Injun Sand," at a point about 100 feet distant from the gas well on plaintiff's land, and found oil, but pulled the casing from said well about the last of September, 1910, and abandoned it, without having plugged it or taken any other precaution against the escape of gas or oil or surface water or damage to the adjacent property or the well thereon. In consequence of this action on the part of the Virginia 0il & Gas Company, water entered through the abandoned well into the strata of gas-bearing sand, and percolated to such an extent therein and so far permeated it as to obstruct, impede, and destroy the flow of gas into the plaintiff's well, so that it became worthless, and was wholly lost to him as a producing well.
The first count charges a common-law right of recovery on the wrongful failure of the defendant to plug the well, that being one recognized method of avoiding injury likely to ensue upon the abandonment thereof. The second count claims such right on the ground of failure on the part of the lessee to take any precautions against injury by such means. The third count is based upon the violation of a statute, requiring owners of wells intending to abandon them to plug them, and the fourth upon violation of the statute by failure to use any other method of preventing injury. The first two counts stand upon an alleged common-law right of action, and the other two upon a statutory right of action.
The lack of a precedent or line of authorities, asserting a right of action for injury of the kind described in the declaration, necessitates resort to general legal principles and the analogies of the law for disposition of the question presented. As against any person except the owner of the land, the lessee could make such use of it, without liability to strangers, as the owner himself could without such liability. The owner was bound to use his property in such manner as not to injure the property of the adjacent owner provided he could avoid such injury by the exercise of care and abstention from negligence. In other words, having the right as owner to the full enjoyment of his property and to do thereon what he pleased, he was nevertheless bound to exercise care in such use to avoid injury to his neighbor, if such injury could be avoided by the adoption and observance of reasonable precautions. Walker v. Strosnider, 67 W.Va. 39, 46, 67 S.E. 1087, 21 Ann.Cas. 1; Veith v. Salt Co., 51 W.Va. 96, 41 S.E. 187, 57 L.R.A. 410. An owner may improve his real property in such manner as he may see fit, and if, in consequence thereof, the surface water flows from his premises onto the grounds of his neighbor, he is not liable for any resulting injury. But, if, through negligence or design, he collects the surface water on his premises and casts it in a body onto the lands of his neighbor, he is liable for such injury as may result. In the exercise of his riparian right, he may consume, for domestic and ordinary...
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