Bell v. Cardinal Drilling Co.

• Decision Date: 24 September 1957
• Docket Number: No. 7654,7654
• Citation: 85 N.W.2d 246
• Parties: Lawrence BELL and Myrtle Bell, Plaintiffs and Respondents, v. CARDINAL DRILLING CO., a foreign corporation, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 246

85 N.W.2d 246

Lawrence BELL and Myrtle Bell, Plaintiffs and Respondents, v. CARDINAL DRILLING CO., a foreign corporation, Defendant and Appellant.

No. 7654.

Supreme Court of North Dakota.

Sept. 24, 1957.

Syllabus by the Court.

1. Where a motion for judgment notwithstanding the verdict has been denied, the evidence must be considered in the light most favorable to the party in whose favor the verdict was rendered.

2. Where in an action by plaintiffs, lessors, against the defendant, lessee, for damages based on alleged breach of the terms of an oil and gas lease the jury returns a verdict for plaintiffs, notwithstanding failure of plaintiffs to plead or prove nature of breach, a judgment for plaintiff entered on such verdict will be reversed.

Strutz, Jansonius & Fleck, Bismarck, for appellant.

Friederich & Ziegler, Rugby, for respondents.

SATHRE, Judge.

The plaintiffs bring this action against the defendant for damages resulting from alleged breach of contract by the defendants.

The plaintiffs are the owners of certain real property situated in the county of Pierce, State of North Dakota. The parcel of land involved herein is the West half (W 1/2) of Northwest Quarter (NW 1/4) of Section Twenty-seven (27) and the East half (E 1/2) of the Northeast Quarter (NE 1/4) of Section Twenty-eight (28) Township One hundred Fifty-eight (158) Range Seventy-two (72) Pierce County, North Dakota.

The complaint alleges that on the 23rd day of April 1949, the plaintiffs executed and delivered to E. A. Stiller, Shreveport, Louisiana, on oil and gas lease on the land described in the complaint and that said lease provided among other things that the lessee shall pay to the lessor any and all damages to growing crops caused or resulting from drilling operations upon said premises, which said oil and gas lease was assignable by the lessee. The complaint further alleges that from on or about May 24, 1954, and to June 1, 1954 the defendant, Cardinal Drilling Company, a foreign corporation, with the full consent and permission of the lessee or his assignees, drilled a test well on the premises described in the oil and gas lease, said well being more fully described as Lawrence Bell No. 1, being on the SW 1/4 NW 1/4 of Sec. 27, Twp. 158, North Rge. 72 Pierce County, North Dakota.

That as a result of said drilling operations the well site and approximately 3 acres adjacent thereto were damaged by being traversed by heavy machinery and equipment and by the depositing and littering of debris and refuse in and around said test well site, and by intermingling of the top soil with underlying clay strata, rendering same unfit for agricultural purposes for many years to the damage of the plaintiffs in the sum of $600; that said test well site and the land adjacent thereto contained growing crops which said crops were partly destroyed by the said drilling operations to the damage of the plaintiffs in excess of $100.

Judgment is then demanded for $700.

The defendant answered admitting its corporate capacity and that it agreed to drill a test well on the premises owned by the plaintiffs as alleged in the complaint. It denies however that any damages resulted to the plaintiffs and alleges that if any damage resulted from the moving of machinery and equipment, such damage was caused by an independent contractor employed for that purpose and that this defendant is not liable therefor.

The case was tried in the district court in the County of Pierce in the City of Rugby, North Dakota to the court and a jury.

When the plaintiffs had rested, and again at the close of all of the evidence, the defendant made a motion for a directed verdict upon the grounds that if any liability existed on the part of the defendant it was by virtue of contract and that there was no evidence adduced by the plaintiffs showing any breach or violation of contract, or that defendant had used more land than was reasonably necessary for the drilling operation; that negligence on the part of the defendant had not been pleaded and that there was no proof of negligence; that the preponderance of the evidence was insufficient to establish a cause of action against the defendant. The plaintiffs resisted the motion and it was denied by the court and the issues were submitted to the jury with instructions to assess separately the damages, if any, to growing crops and to the land. The jury returned a verdict in favor of the plaintiffs in the sum of $60 for growing crops and $300 for land. Judgment was thereafter entered upon the verdict.

Thereafter and in due time defendant made a motion for judgment notwithstanding the verdict, but no alternative motion was made for a new trial. The motion appealed from was made in accordance with Section 28-1510, NDRC 1943 as amended by Chapter 204, S.L.N.D. 1951 which provides:

'In denying a motion for a directed verdict the court shall be deemed to have submitted the action to the jury subject to a later determination of the questions of law raised by the motion. Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment notwithstanding the verdict entered in accordance with his motion for a directed verdict. * * *'

The defendant having appealed from the order denying its motion for judgment notwithstanding the verdict and from the judgment entered thereon, it will be necessary to examine the evidence as to its sufficiency to support the verdict. The defendant assigns the following specifications of error:

1. The evidence in the case was insufficient to justify the verdict rendered against the defendant, by virtue of the proof that the acts complained of, if done, were done by an independent contractor, not by the defendant.

2. That the verdict is contrary to the weight of the evidence in the case adduced, in that it was neither pleaded nor proved that the defendant's use of the land was in excess of that which was reasonably necessary for the drilling of an oil and gas well test.

3. That the verdict is contrary to the instructions given by the court to the jury in that the court instructed the jury that native grasses were not growing crops, and there is no proof that defendant used any land for drilling purposes on which there is located growing crops as defined by the court.

4. That the failure of such plaintiff to plead and/or to prove negligence on the part of the defendant precludes any right of recovery in this action.

5. That the court erred in failing to direct a verdict for the defendant based on the evidence therein adduced on proper motion by the defendant herein.

6. That the verdict and judgment entered herein is not supported by the evidence.

The following facts are undisputed:

The plaintiff's are the owners of the West half of the Northwest quarter of Section Twenty-seven and the East half of the Northeast quarter of Section Twenty-eight, township one hundred fifty-eight, range seventy-two, Pierce County, North Dakota. In April 1949 the plaintiffs executed and delivered to one E. A. Stiller an oil and gas lease on the said described land together with other lands, and under its terms the lease was assignable by the lessee. Thereafter the defendant Cardinal Drilling Company, under assignment to it by the lessee, or by arrangement with the lessee, agreed to drill a test well on the Southwest quarter of the Northwest quarter of said section Twenty-seven.

The defendant thereupon, procured from the State geologist, a permit to drill the test well on...