Bayouth v. Lion Oil Co.

• Decision Date: 12 May 1983
• Docket Number: No. 11-82-292-CV,11-82-292-CV
• Citation: 651 S.W.2d 423
• Parties: Frank E. BAYOUTH et al., Appellants, v. LION OIL COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 423

651 S.W.2d 423

Frank E. BAYOUTH et al., Appellants, v. LION OIL COMPANY et al., Appellees.

No. 11-82-292-CV.

Court of Appeals of Texas Eastland.

May 12, 1983.

Rehearing Denied June 2, 1983.

Jimmy P. Horany, T.W. Schueller, Law Offices of Schueller & Macha, Barry L. Macha, Wichita Falls, for appellants.

Rodney Satterwhite, Marc Skeen, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Midland, R. Temple Dickson, Moore, Dickson, Roberts & Ratliff, Inc., Sweetwater, for appellees.

RALEIGH BROWN, Justice.

This is a summary judgment case. Plaintiffs ¹ filed their original petition on April 15, 1976, alleging that defendants ² had permanently damaged their land by negligently permitting saltwater to migrate from defendants' oil leases on to plaintiffs' nearby property. Plaintiffs alleged that Bayouth discovered the saltwater invading his property on October 10, 1970. The invasion of saltwater on the Pope property was discovered on October 25, 1971. Plaintiffs alleged that such invasion and resulting contamination had been continuous from the date of its discovery and persisted through the time suit was filed. Bayouth sought permanent damages based on the difference between the reasonable cash market value of his 315 acres before and after contamination, for a total of $110,250. The owners of the Pope property, J.B. and Brucene Pope and Ganann heirs, sought permanent damages based on the difference between the reasonable cash market value of their 828 acres before and after contamination, for a total of $165,600.

On April 30, 1981, five years after the original petition was filed, and after the statute of limitation was urged by defendants in their motions for summary judgment, plaintiffs amended their petition, joining Bill D. Saxon as a defendant and changing all damage allegations from "permanent" to "temporary."

The relief sought by the parties was changed from diminution in value of their respective tracts, to costs of reclamation over a twenty year period and loss of crop production from 1974 through 1981 for fifty acres of the Bayouth tract, for a total of $126,000 in alleged temporary damages to Bayouth. The owners of the Pope property sought costs of reclamation of 120 acres over a twenty year period as well as loss of crop production on 85 of the affected acres and loss of livestock income on 35 of the affected acres from 1974 to 1981. The cost of supplementally feeding and watering their livestock from 1974 to 1981 was also sought by the owners of the Pope property, bringing the total of their temporary damage allegations to $200,200. Plaintiffs further sought exemplary damages and preservation of their rights to pursue subsequent temporary damages which may arise from a time period not included within this lawsuit.

All defendants moved for summary judgment based on the applicable statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (Vernon Supp.1982-1983). ³ The court, finding the existence of no genuine issue of material fact after considering "the pleadings, depositions, briefs and affidavits on file at the time of the hearing and those filed thereafter with permission of the Court," granted defendants' motions for summary judgment pursuant to Tex.R.Civ.P. 166-A.

Appellants' sole point of error is that the trial court erred in granting summary judgment in favor of appellees. There is no dispute as to the applicability of the two year statute of limitations, Article 5526, supra, or the fact that Bayouth discovered saltwater invasion of his property in 1970 and a similar invasion was discovered on the Pope property in 1971. The critical issue is whether appellants' damages, as pleaded and established by the summary judgment record, are permanent as a matter of law, barring their suit by limitations. Appellants' position is that they have alleged temporary damages in their amended pleading and should be allowed recovery for any injury occurring within two years prior to the time they filed suit. We find appellants' injuries to be permanent as a matter of law.

The summary judgment evidence consisted, in part, of the affidavits of a soil scientist and a geologist. The soil scientist's opinion, as stated in his affidavit, was that the saltwater damage to appellants' land is temporary and their land can be reclaimed for cultivation by a plowing and leeching process occurring over a twenty year period. The geologist's affidavit stated that he observed the saltwater disposal pits on appellees' leases, which are located approximately one and three quarters miles from appellants' property. Regarding the migration of saltwater from appellees' pits and its resulting invasion of appellants' property, the geologist stated:

The saltwater moves very slowly, and it took many years to flow and be pressured from the pits and wells on said leases to the Bayouth and Pope farms. Said flow of saltwater from the pits depends upon the rainfall after the wells were shut down and abandoned. I saw the damage from salt water contamination on the Bayouth and Pope farms on September 15, 1978, and it is my opinion and I know that said damage was sporadic and was intermittent and that it was not constant, but was irregular depending upon the rainfall for many years to flow, move, and force the saltwater to the farms causing the damage to the lands at irregular intervals.

It was undisputed in the trial court and on appeal that appellees, Lion Oil Company and Monsanto Chemical Company, ceased all operations on the lease in question in 1957. Saxon Oil Company and Bill D. Saxon ceased their operations on this lease in 1970. None of the appellees have had any further involvement with the disputed area from 1970 to the present.

The applicable rules to determine when appellants' cause of action accrued for limitations purposes are stated in Baker v. City of Fort Worth, 210 S.W.2d 564, 566 (Tex.1948):

When the act is in itself lawful as to the person who bases an action on injuries subsequently accruing and consequent upon the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury, by which is meant an injury giving cause of action by reason of its being an invasion of plaintiff's right, then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damage resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar. * * * We conclude from the authorities that, where a nuisance is permanent and continuing, the damages resulting from it should all be estimated in one suit, but where it is not permanent, but depends on accidents and contingencies so that it is of a transient character, successive actions may be brought for injury as it occurs; and that an action for such injury would not be barred by the statute of limitations, unless the full period of the statute had run against the special injury before suit. The building of the embankment and the culverts, as alleged, was not of itself a nuisance. It was no invasion of plaintiff's rights. They were not put on his land. They became a nuisance only at intervals,--by diverting water from rainfalls from its usual flow upon plaintiff's land. The embankment and the culverts were permanent, but the nuisance was not. There was no constant and continuing injury.

In the instant case, appellants had no claim against appellees until the saltwater invaded appellants' property.

The parties agree that the "discovery rule" is applicable, meaning that the statute of limitations began to run at such time as appellants knew or reasonably should have known of their injury. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). In the case at bar, limitations began at the time the saltwater invasion was discovered. Appellants' amended pleadings stated:

On or about October 10, 1970, Plaintiff Bayouth observed moisture and saltwater crystals near some old seismograph holes on the surface of the southeast portion of his land.

Similarly, regarding the Pope property, the pleadings stated:

The Plaintiffs first noticed salt contamination in the pasture on the west line of Plaintiffs' land on or about October 25, 1971, in that salt crystals and moisture had appeared on the surface adjoining the Frank Bayouth farm, and that thereafter the saltwater had spread over the farm south and east and in a northeasterly direction and contamination and damaged many acres of the 828 acre tract of land.

Limitations thus began to run as to Bayouth in 1970 and as to the owners of the Pope property in 1971. This is true even though the extent of their legal injury or the extent of damages occasioned by that injury was yet unknown. Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (Tex.1954). There being no dispute as to appellants' knowledge of the saltwater invasion of their property more than two years before April 15, 1976, the date on which suit was filed, the pleadings on their face bar a recovery under a permanent damage theory.

Appellants' contention that their amended pleadings alleged facts allowing them to recover under a temporary damage theory raises the critical issue of whether the trial court properly granted appellees' motions for summary judgment on the basis of limitations.

Similarly faced with a determination of whether injuries were permanent or temporary, the court in Atlas Chemical Industries, Inc. v. Anderson, 524 S.W.2d 681, 684 (Tex.1975) related the historical development of the two types of injury as follows:

The question of the temporary or permanent character of injury to land was initially conceived as an aspect of damages. At common law, a plaintiff suing for a continuing invasion of his land could recover for only those damages accrued by the time of trial. Uline v. New York Cent. & H.R.R. Co.,...