Berry v. Shell Petroleum Co.

• Citation: 140 Kan. 94,33 P.2d 953
• Decision Date: 07 July 1934
• Docket Number: 31727.
• Parties: BERRY v. SHELL PETROLEUM CO. et al. [*]
• Court: United States State Supreme Court of Kansas

33 P.2d 953

140 Kan. 94

BERRY v. SHELL PETROLEUM CO. et al. ^[*]

No. 31727.

Supreme Court of Kansas

July 7, 1934

Rehearing Denied Sept. 24, 1934.

Syllabus by the Court.

Oil company producing salt water from oil well and allowing it to escape from its property is liable for any damage that may be caused by it (Rev. St. 1923, 55--121).

Where oil company, with city's permission, connected salt water pipe line to city's sewer system and city permitted water to flow into canal, from where it seeped into landowner's water supply, oil company held liable for damages (Rev. St 1923, 55--121).

Proof that damage to realty will exist for indefinite time is ample to sustain judgment for permanent damages.

Evidence disclosing that substrata had become saturated with salt from defendants' oil wells rendering water in plaintiff's well unfit for drinking purposes, held sufficient to authorized recovery of permanent damages.

1. Where a company drilling for and producing oil brings salt water to the surface, it is the duty of the company to retain the salt water on its own property, and if it is allowed to escape from the property of the oil company and the salt water becomes a nuisance, the company is liable for any damages that may be caused by it.

2. In a case such as is described in paragraph 1 of the syllabus, the fact that the oil company connected a pipe line conveying its salt water with a line of the sewer system of a city and the city permitted the salt water to flow into a canal, from where it seeped into the source of the water supply of plaintiff, thereby damaging it, does not excuse the oil company from liability for damages for allowing the salt water to leave its premises.

3. Proof that damage to real estate will exist for an indefinite time is ample to sustain a judgment for permanent damages.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Elzada Berry against the Shell Petroleum Company and others. Judgment for plaintiff, and defendants appeal.

Chester I. Long, Claude I. Depew, W. E. Stanley, and William C. Hook all of Wichita (William H. Zwick and A. L. Hull, of Ponca City, Okl., and Redmond S. Cole, of Tulsa, Okl., of counsel) for appellants.

Joe T. Rogers and James A. Conly, both of Wichita, for appellee.

SMITH Justice.

This was an action for damages to real estate caused by the seepage of salt water, thereby ruining the water supply on the real estate. Judgment was for plaintiff. Defendants appeal.

Many of the facts were agreed to. Briefly they are as follows: In August, 1928, an oil and gas well was drilled near the town of Valley Center, approximately eight miles north of the city of Wichita. This well and later developments made in the field were located near and on the banks of the Little Arkansas river. As soon as the discovery well was found to be a producer, an intensive drilling campaign started in the Valley Center oil field. A short time after the wells had been drilled they began producing salt water, as well as oil from the same wells. This condition caused various companies to place at each well what is known as settling tanks. The oil and salt water coming from the well was pumped into the tank. The tank had two outlets, one located above the other. The fluid coming from the well was kept at such a level that the oil passed out at the upper opening and the salt water at the lower opening. At each location or at each well the companies constructed a concrete pit, into which the salt water from the settling tank was emptied. Oil was discovered at Valley Center, a few miles north of the city of Wichita, in August, 1928. The Little Arkansas river runs through the center of this field and flows south through the city of Wichita to a junction with the Big Arkansas river near the center of the city. Near this junction the water supply of the city is obtained. Before reaching this junction the river flows through approximately two hundred acres of city park property. About three-quarters of a mile east of the Little Arkansas river at Twenty-First street is located the heavy industrial district, with packing houses, refineries, railroad shops, stockyards, etc. Running in a southeasterly direction from this industrial district is an open sewer of the city, known as the Wichita Drainage Canal, originally constructed about 1908 and widened in 1925. This drainage canal empties into the Big Arkansas river south of the city limits of Wichita. Just above Eighteenth street this open drainage canal divides; the center branch running north, a branch running to the northeast to the city limits referred to as the east branch, and a branch extending to the northwest referred to as the west branch. This west branch passes by the packing houses, crossing Lawrence street at about Twenty-Fourth street and continuing northwest to the city limits at about Twenty-Seventh street. This drainage canal is sometimes referred to as Chisholm creek. In about 1920 an inclosed concrete sewer was constructed through the city of Wichita, commencing at approximately Twenty-Fourth street and Lawrence avenue and having its outlet in the Big Arkansas river south of the city limits. This was known as the Wichita Sanitary Sewer, its only outlet being in the Big river south of the city.

Soon after the discovery well was drilled a representative of the city commission advised the oil companies in the field that salt water might be produced and that if it was the city water supply would be endangered and the park system damaged. The oil companies were advised that action would be taken by the city unless satisfactory arrangements were made to take care of the salt water.

The result of this correspondence and these conferences was that the city demanded that the oil companies bring their salt water to the city of Wichita and turn it into the sewer system of the city of Wichita for conveyance through the city to the Big river south of the city. As evidence of this agreement the city passed an ordinance giving the Gypsy Oil Company a revocable permit to construct a pipe line to a designated point in the city and granting to the company the right to connect this pipe line with the sewer system, and to empty salt water into the sewer. This right was granted by the city upon condition that the pipe should be attached to the sewer in a workmanlike manner and that "said grantee shall at all times have a proper connected line into Chisholm Creek with suitable valves for an emergency discharge into said creek, and shall operate said emergency discharge in accordance with the instructions of the City." The city reserved the right to revoke the permit and to pass and enforce any reasonable regulations necessary to control of the pipe. The Continental Oil Company succeeded the Gypsy Oil Company.

Following the passage of the ordinance and acceptance by the oil companies, a pipe line was constructed from the Valley Center oil field and connected with the Wichita sanitary sewer at Twenty-Third and Lawrence streets. This sewer is an inclosed, concrete sewer running completely through the city. Pursuant to the ordinance an emergency outlet was also constructed at approximately Twenty-Fourth street and Lawrence and connected with the Wichita Drainage Canal. This emergency outlet was so arranged that the salt water could be turned into the west branch of the drainage canal at the option of the city. The operation of each of these outlets was at all times under the control of the city of Wichita. The city of Wichita kept the keys to the gates and regulated the flow of salt water either into the city sewer or through the emergency outlet at its own convenience and in the manner which the city deemed advisable.

At the beginning of December, 1930, the emergency outlet of the salt water line from Valley Center was extended from its original location at approximately Twenty-First street and the Wichita sanitary sewer to a location at Twenty-First and the east branch of the Wichita sewer system known as the Wichita Drainage Canal, at which point the emergency outlet remained until in the month of April, 1931, when at the instance and request and upon the demand of the city of Wichita at that time the emergency outlet was carried farther south and discharged at a point in the east branch of the sewer system, known as the Wichita Drainage Canal, at approximately Nineteenth street, where it remained until some time in April, 1933. The emergency outlets were constructed in each instance at the request of the city and at locations designated by the city.

The arrangement entered into with the city of Wichita in the first instance was that the city of Wichita would carry this salt water through its sanitary sewer system except when the city deemed it advisable to turn the salt water into the open drainage canal for flushing purposes. It was the understanding that they were carrying this water through the sanitary sewer system except in a case of emergency, or except when they found it necessary to divert it into the drainage canal for the purpose of further flushing the drainage canal.

The water was emptied into the canal from July 15, 1929, until August 15, 1929; from September 15, 1929, to February 15, 1931; from March 15, 1931, to March 20, 1931; and from April 26, 1931, until April 7, 1933.

The oil companies pumped through their salt water line about 24,000,000 barrels of salt water. In 1930 they pumped 5,500,000; in 1931, 7,000,000 barrels; in 1932, 5,000,000. Nearly all that was pumped in 1931 and 1932 was put into the drainage canal.

The property owned by the plaintiff and which she claims was damaged is located immediately south of Twenty-First street and about 250 feet south and west of the...