Branch v. Western Petroleum, Inc., 17178
| Decision Date | 08 November 1982 |
| Docket Number | No. 17178,17178 |
| Citation | 657 P.2d 267 |
| Parties | , 13 Envtl. L. Rep. 20,362 Lloyd BRANCH and Jeanne Branch, Plaintiffs and Respondents, v. WESTERN PETROLEUM, INC., Defendant and Appellant. |
| Court | Utah Supreme Court |
Gayle F. McKeachnie, Clark B. Allred, Vernal, for defendant and appellant.
George E. Mangan, Herbert W. Gillespie, Roosevelt, for plaintiffs and respondents.
The Branches, the plaintiff property owners, sued for damages for the pollution of their culinary water wells caused by percolation of defendant Western Petroleum Inc.'s formation waters (waste waters from oil wells containing various chemical contaminants) into the subterranean water system that feeds the wells. A jury answered questions to special interrogatories, finding, inter alia, that the formation waters had contaminated plaintiffs' two wells and awarded damages of $8,050 for pollution of the well water, $700 for trespass, $10,000 for "mental suffering, discomfort and annoyance," and $13,000 punitive damages. The jury, over objection, was instructed on the theory of negligence; however, the trial court entered judgment on the basis of strict liability for the above amounts, except that damages for mental suffering, discomfort, and annoyance were disallowed.
Western appeals, arguing that the trial court erred in awarding damages for pollution of the wells on the basis of strict liability. It contends that negligence is the only valid legal theory upon which the judgment can be sustained and that the trial court erred (1) in not instructing on proximate cause; and (2) in not directing the jury to find the percentage of negligence attributable to each party as required by the Utah Comparative Negligence Act, U.C.A., 1953, § 78-27-38. Western also complains of the trial court's failure to reduce damages by the percentage of pollution "caused by other parties or conditions"; an improper selection of the jury venire; and the award of punitive damages without a showing that defendant's actions were willful and malicious. No attack is made on the judgment of $700 for trespass. On a cross-appeal, the Branches contend that the court erred in striking the jury award for mental suffering, discomfort, and annoyance.
In December 1975, Western purchased forty acres of land in a rural area north of Roosevelt, Utah, which had previously been used as a gravel pit. Western used the property solely for the disposal of formation water, a waste water produced by oil wells while drilling for oil. Formation water contains oil, gas and high concentrations of salt and chemicals, making it unfit for culinary or agricultural uses. The formation water was transported by truck from various oil-producing sites and emptied into the disposal pit with the intent that the toxic water would dissipate through evaporation into the air and percolation into the ground. Alternative sites for disposing of the water were available to Western, but at a greater expense.
In 1976, the Branches purchased a parcel of property immediately adjacent to, and at an elevation of approximately 200 to 300 feet lower than, Western's property. The twenty-one acre parcel had on it a "diligence" well, which had been in existence since 1929, some outbuildings, and a home. After acquiring the property, the Branches made some $60,000 worth of improvements to the home and premises. Prior owners of the property used the water from the well for a grade A dairy and later a grade B dairy. Both dairy operations required that the water be approved for fitness and purity by appropriate state agencies. The Branches, as had all prior owners since 1929, used water from the diligence well for culinary purposes. The water from the diligence well was described as being sweet to the taste and of a high quality until December of 1976.
Two months after purchasing the property, the Branches noticed that the well water began to take on a peculiar taste and had the distinctive smell of petroleum products. Soap added to the water would no longer form suds. They observed that polluted water from Western's disposal pit was running onto the surface of the Branches' property and, on one occasion, reached their basement, causing damage to food stored there. After testing the diligence well water and finding it unfit for human consumption, and after their rabbits and one hundred chickens had died, apparently from the polluted water, the Branches began trucking water to their property from outside sources. In November, 1977, the Branches dug an additional well south of their home. Water from the new well was tested and found safe for culinary purposes. But after a few months, the new well also ceased producing potable water, and on advice of the State Health Department, the Branches ceased using the new well for culinary purposes and hauled water to their property almost until the time of trial.
The Branches requested Western to cease dumping formation water in the disposal pit, but Western refused unless the Branches would post a bond to cover the costs. Western did, however, agree to build a pond on its property to contain the escaping surface water and prevent it from flowing onto the Branches' land. In doing so, Western failed to establish the proper boundary line and built part of the pond on the Branches' land. After the Branches hired a surveyor to establish that Western had built the pond on their land, Western built another containing pond on its own property. The pond, however, was only partially successful in preventing the run-off onto the Branches' land from the disposal pit. Western caused additional damage by permitting its trucks to enter the Branches' property for the purpose of pumping out the containment ponds. When the discharge nozzles on the trucks were left open, polluted water was sprayed directly onto the Branches' land.
As a consequence of the unavailability of culinary water in her home, plaintiff Jeanne Branch returned to her original home in Colorado for a three or four month period so that she could "pull herself together." During this time, Lloyd Branch made weekly trips to and from Colorado to be with his family and otherwise tried to keep in contact with his wife on the telephone while he maintained his contracting business in Roosevelt.
Western's agents admitted that they did not know, and made no attempt to ascertain, what state law was with respect to permitting formation waters to seep or percolate into subsurface waters. Even after Western became aware of the laws relative to dumping, it still took no affirmative action to obtain approval of its ponds.
At trial the major issue was whether and how Western's formation waters caused the pollution of the Branches' wells. Western's expert, Mr. Ferris, a private geologist with approximately two years professional experience in the Rocky Mountain area, and the Branches' expert, Mr. Montgomery, a state geologist who had spent nine years working for the Utah Division of Water Resources, agreed that the subsurface waters consist of shallow groundwater and a deeper aquifer known as the Duchesne Formation. The Duchesne Formation produces the culinary water which is tapped by the Branches' wells. The two experts also agreed that formation water in the disposal pit was percolating into the subsurface waters, but they disagreed on whether the polluted waters had merely entered the shallow groundwaters or had percolated down into the Duchesne Formation.
Ferris maintained that the formation water only entered the shallow groundwater and did not penetrate to the Duchesne Formation. He concluded that the formation water could have entered the Branches' original well only through cracks in the well casing at the level of the shallow groundwaters. He further testified that none of Western's polluted water entered the Branches' new well because there were no cracks in its casing. In addition, Ferris testified that since the shallow groundwaters were naturally contaminated and unfit for human use, Western's additional pollutants were of no consequence to the Branches. The new well, according to Ferris, contained naturally poor, although useable, water from the Duchesne Formation.
Montgomery, testifying for the Branches, admitted that the Duchesne Formation water was of relatively poor quality and contained many natural contaminants. However, he stressed that the natural contaminants were not sufficient to cause the well water to fall below the standards set by the Public Health Service for acceptable human use. He stated that the waters from Western's disposal water percolated below the shallow groundwater and through natural joints and cracks into the deeper Duchesne Formation, where it entered both of the Branches' wells and made them unfit for human use.
The jury obviously considered Montgomery the more convincing of the two experts. It found, in response to special interrogatories, that "defendant's use of the evaporation pit for the dumping of formation water [was] a cause of the pollution of the water in plaintiffs' [wells]," and that Western caused 66 percent of the pollution in Branches' original well and 52 percent of the pollution in the new well. The rest of the pollution was found to be caused by other unspecified "parties or conditions." The jury also found that Western was "negligent ... in dumping formation waters in its evaporation pit," and had also committed a "trespass upon plaintiffs' land ... other than the claimed pollution of [the] wells."
The major substantive dispute is whether the trial court erred in entering judgment against Western on the basis of strict liability for pollution of the Branches' wells. Western argues that other states have based liability for pollution of subterranean waters on either negligence, nuisance, or trespass, and that since the Branches failed to allege nuisance or trespass, "the only accepted theory upon which this case could be based is negligence."...
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