Boxberger v. Texas Co.

• Decision Date: 06 March 1943
• Docket Number: 35673.
• Citation: 156 Kan. 471,134 P.2d 644
• Parties: BOXBERGER v. TEXAS CO. et al.
• Court: Kansas Supreme Court

134 P.2d 644

156 Kan. 471

BOXBERGER v. TEXAS CO. et al.

No. 35673.

Supreme Court of Kansas

March 6, 1943

Syllabus by the Court.

In considering sufficiency of evidence as against demurrer thereto, court must take such evidence as true, consider part thereof favorable to and disregard that unfavorable to party adverse to demurrant, and weigh no contradictory part or differences between direct and cross-examination, and if there is any evidence sustaining case when so considered demurrer must be overruled.

In action for damage to lands from pollution of waters thereon because of defendants' operations under oil leases whether waters were polluted and plaintiff was aware thereof over two years before commencement of action, so as to bar prosecution thereof under statute of limitations, held for jury on conflicting evidence.

In action for pollution of waters on plaintiff's lands because of defendants' operations under oil leases testimony of plaintiff's witnesses as to value of lands held to support verdict for plaintiff, though witnesses did not consider facts that lands were encumbered by operations under defendants' leases before any damage occurred and that lands still had ample supply of usable water, in view of such witness' cross-examination, on which defendants brought out such facts and could have asked witnesses' opinions as to values with such factors included.

Where trial court was convinced, at hearing on motion for new trial after verdict for plaintiff, that plaintiff and his son testified falsely as to material matters, court should have exercised independent judgment and granted another trial instead of rendering judgment on verdict, regardless of whether testimony supporting motion was cumulative, newly discovered, or available sooner in exercise of diligence.

Where jury's answers to special questions were conflicting and irreconcilable with each other and general verdict, even if answers not supported by evidence had been set aside, new trial should have been allowed.

1. The record examined in an action to recover permanent damages to real estate caused by pollution from operations under an oil and gas lease, and held, the trial court did not err in its rulings on defendants' demurrers to the plaintiff's evidence nor on defendants' motions for a directed verdict.

2. At the hearing of a motion for a new trial, evidence was introduced, as to which the trial court found a part was cumulative and a part, through the exercise of due diligence, might have been produced at the trial. After such hearing and finding the trial court further found the plaintiff and one of his principal witnesses had testified falsely at the trial concerning the material facts. Under such circumstances the trial court should have set aside the verdict of the jury and have granted a new trial.

Appeal from District Court, Russell County; C. A. Spencer, Judge.

Action by J. Peter Boxberger against the Texas Company and others for damages to lands from pollution of waters thereon. Judgment for plaintiff, and defendants appeal.

Reversed and remanded with instructions.

Redmond S. Cole, of Tulsa, Okl. (Jerry E. Driscoll, of Russell, George B. Collins, of Wichita, D. E. Hodges, of Bartlesville, Okl., and B. W. Griffith, of Tulsa, Okl., on the brief), for appellants.

C. R. Holland, of Russell (Geo. W. Holland and Herbert N. Holland, both of Russell, on the brief), for appellee.

THIELE Justice.

This was an action for permanent damages to real estate resulting from pollution caused by acts of the defendants in operations under oil and gas leases, and from a judgment in favor of plaintiff the defendants appeal.

The action was commenced on May 29, 1941. Briefly stated, it was alleged in the petition that plaintiff owned certain real estate, and had executed oil and gas leases thereon, and that other leases on adjoining real estate had been executed, and under those leases the several defendants had constructed and operated oil wells and structures in connection therewith, and that beginning September 1939, the defendants had caused, permitted and allowed crude oil, base sediment, salt water and water containing mineral substances to escape from their several wells, salt water ponds and sump holes into the fresh water strata underlying and into creeks and springs on plaintiff's lands, and since September 1939, the water in his wells, springs and creeks was unfit for consumption either for humans or livestock; that such injurious substances had permeated the soil and had damaged his pasture, destroyed his orchards, shade trees and shrubbery, and had damaged his crop lands, all to his damage in the sum of $14,950, for which he sought judgment.

The several defendants filed separate answers. For our purposes, it may be said they contained general and specific denials, and an allegation that if plaintiff had sustained any damages, they were not sustained within a period of two years immediately preceding commencement of the action, and plaintiff's cause of action, if any, was barred by the statute of limitations.

Plaintiff's replies to these answers need not be noticed further than to state they contained general denials.

During the course of the trial, and at the close of plaintiff's evidence each defendant demurred, the demurrers being overruled. Plaintiff was permitted to reopen and introduce further evidence after which the demurrers were resubmitted and overruled, and then each defendant moved the court to instruct the jury to render a verdict in its favor, these motions being denied. Defendants then offered their evidence and plaintiff offered evidence in rebuttal, and thereafter defendants renewed their demurrers which were overruled, their motions for a directed verdict in their favor denied and the cause was submitted to the jury which rendered a judgment in favor of the plaintiff and returned answers to special questions submitted, which will be later mentioned. In due time the defendants joined in and filed a motion to set aside answers to the special questions, and a motion for a new trial. We here note there was no motion for judgment non obstante veredicto.

On the motion for a new trial further evidence was offered by the defendants. In ruling on that motion the court made certain statements which will be more fully noticed later, but in effect it stated that most of the evidence was cumulative or repetition, and inferentially, that it was not newly discovered or could not, with diligence, have been produced at the trial. It overruled the motions to set aside answers to the special questions and for a new trial and rendered judgment for plaintiff. In due time the defendants perfected their appeal to this court. The specification of errors covers the matters hereafter discussed.

Appellants first contend that the undisputed evidence showed the appellee's claim was barred by the statute of limitations and that the trial court should have sustained their demurrers to appellee's evidence or should have allowed their motions for a directed verdict. The latter motions raised the same question as the demurrers. It has been held repeatedly that in considering sufficiency of evidence as against a demurrer, we must take the evidence under attack as true, consider that part favorable and disregard that which is unfavorable, not weigh any part which is contradictory, nor any differences between direct and cross-examination, and if when so considered, there is any which sustains the case, the demurrer must be overruled. (See e. g. Robinson v. Short, 148 Kan. 134, 79 P.2d 903; Parker v. City of Wichita, 150 Kan. 249, 250, 92 P.2d 86; Pierce v. Edgerton, 151 Kan. 107, 111, 98 P.2d 129; Bessette v. Ernsting, 155 Kan. 540, 543, 127 P.2d 438; and cases cited.) The evidence was voluminous and we need not detail it. In support of their contentions, appellants direct our attention to portions tending to show that the lands were polluted and that appellee was aware of it more than two years before the action was commenced. Our examination of the evidence as set forth in the abstract and counter abstract discloses other evidence from which a contrary conclusion might be reached. Under the rule above stated the trial court did not err in its rulings on the demurrer and on the motion for a directed verdict.

Under different heads, appellants argue that the verdict was not supported by any substantial evidence, and that it was based solely on speculation and guesswork. We note that although appellants requested the trial court to instruct the jury in certain particulars, they asked no instruction as to the measure of damages. In that particular, and speaking generally, the court did instruct that the amount to be allowed, if any, was the difference between the fair and reasonable market value of the land immediately prior to the damage or injury to the land or the pollution of the water thereunder, and the fair and reasonable value immediately after such damage and pollution. The record, as abstracted shows no objection to this instruction. The complaint lodged against the testimony of witnesses for plaintiff as to value that it is...