British-American Oil Producing Co. v. Vir

Citation126 P.2d 530,191 Okla. 40,1942 OK 89
Decision Date24 February 1942
Docket NumberCase Number: 29803
CourtOklahoma Supreme Court

¶0 1. NEGLIGENCE--Each wrongdoer responsible for result of concurrent acts.

Where the separate and independent acts of several parties combine to produce directly a single injury, though concert of action is lacking, such parties are jointly and severally liable for the result, even though the act of each alone might not have caused the injury.

2. NUISANCE--Right to damages where lawful business so conducted as to constitute private nuisance.

Where the facts show that a lawful business is being conducted in such manner as to constitute a private nuisance causing substantial injury to property, the aggrieved party may recover compensation for the injury sustained.

3. SAME--Unreasonable interference with owner's peaceful occupancy and enjoyment of premises by operation of nearby lawful business constitutes "taking" or "damage to" property within meaning of Bill of Rights.

An unreasonable interference with the owner's peaceful occupancy and enjoyment of his premises by the operation of a nearby business, though such operation may be authorized by law, constitutes the taking of or damage to the premises within the meaning of section 23, art. 2, of the Constitution, and the aggrieved party may recover as for a private nuisance.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

Action by Vera B. McClain et vir against the British-American Oil Producing Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Mayo E. McKeown, of Tulsa, Hayes, Richardson & Shartel, Earl Pruet, Keaton, Wells & Johnston, Roy Lytle, Edward Howell, and Harry D. Turner, all of Oklahoma City, and Don Emery and Rayburn L. Foster, both of Bartlesville, for plaintiffs in error.

Rittenhouse, Webster, Hanson & Rittenhouse, of Oklahoma City, for defendants in error.


¶1 This action was instituted in the district court by Vera B McClain and her husband as owners and occupants of certain real property in Oklahoma City against a number of oil companies to recover damages arising out of drilling operations on adjacent lands. The petition sets out two causes of action, the first for damages caused by alleged annoyance and inconvenience resulting from the drilling and operation of various wells, and, second, physical damages to the real property caused by such operations. Verdict and judgment were for plaintiffs on both causes, and defendants appeal.

¶2 Defendants charge error in the action of the trial court in overruling their demurrers for misjoinder of parties defendant and causes of action.

¶3 This assignment deals wholly with the question of the joint and several liability of independent tortfeasors whose concurrent wrongs contribute to the particular injury.

¶4 It is neither charged nor proved that the defendants were common owners or operators of the wells. Nor is there any intimation of design or purpose or of concert of action on the part of defendants in causing the alleged injuries. Defendants say that in view of these circumstances we should apply the rule that the acts of independent tortfeasors, each of which causes some damage, may not be combined to create a joint liability at law for damages, but each is liable only for the proportion of the damage caused by him. This, they say, is the general rule recognized by the overwhelming weight of authority. Many authorities are cited, including those found in 9 A.L.R. 939; 35 A.L.R. 409; 24 L.R.A. (N. S.) 1185; 40 L.R.A. (N. S.) 102.

¶5 Defendants recognize the established rule in this state that parties contributing to the pollution of a stream may be sued jointly though there was no common design, purpose, or concert of action among them sufficient to brand them as actual joint tortfeasors (Northup v. Eakes, 72 Okla. 66, 178 P. 266; Tidal Oil Co. v. Pease, 153 Okla. 137, 5 P.2d 389; Indian Territory Illuminating Oil Co. v. Bell, 173 Okla. 46, 46 P.2d 481; Oklahoma City v. Miller, 179 Okla. 363, 65 P.2d 990). But they assert that this rule is contrary to the great weight of authority and has been specifically limited to pollution cases as is revealed by the express language of this court. Defendants base their assertion on the language of the court in Walters v. Prairie Oil & Gas Co., 85 Okla. 77, 204 P. 906. Previously the court had held in Northup v. Eakes, supra, as follows:

"Where, although concert is lacking, the separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it."

¶6 And in referring to that holding the court in the Walters Case, above, said:

"But this ruling being a liberal exception in favor of riparian owners to the general rule that to make tortfeasors liable jointly there must be some sort of community in the wrongdoing, that is, that injury must be in some way due to their joint work, it ought not to be extended to the point of working injustice."

¶7 But we cannot see in that statement a purpose or intent to limit the rule in Northup v. Eakes, supra, to pollution cases. The court merely refused to extend it to the point of working injustice. There the landowner sued a group of separate leaseholders for pollution of a stream. Part of the damage was caused by plaintiff's tenant with the consent of the plaintiff or as a result of the ordinary use of the premises. The court held that the plaintiff could not recover from the group of leaseholders without producing evidence sufficient to enable the court to separate the damage caused by the group from that caused by the tenant. It would have been unjust to hold the leaseholders jointly and severally liable for the damage caused by plaintiff's tenant with plaintiff's consent or for the damage resulting from the ordinary use of the premises by such tenant.

¶8 A similar situation does not exist here. It does not appear that any of the defendants, or other parties, contributed to the injuries with plaintiff's consent or as a result of contractual right.

¶9 The rule that all parties whose wrongful acts unite in causing an injury, notwithstanding the absence of a concert of action, may be joined in one suit, has been so long established in this state, and so many times applied, that a departure therefrom is unwarranted. We see no reason why it may not apply in cases of this character as well as in pollution cases.

¶10 Defendants object to certain instructions regarding plaintiffs' right to recover for physical damage to the property.

¶11 The damage in this respect was allegedly caused by vibrations set up by drilling operations and transmitted through the earth to plaintiffs' premises.

¶12 The court instructed the jury to the effect that defendants had a legal right to carry on the drilling operations, but no one had a right to operate a business, though a lawful one, in such a manner as to do substantial, physical damage to another person's property; that if there had been vibrations as alleged, and they had affected plaintiffs' property in a substantial, physical manner, then defendants would be liable.

¶13 The objection goes wholly to that portion of the instruction which would permit recovery merely in event of substantial, physical injury to the property. Defendants say that in such case, where the property is being used in a lawful manner, the owner is not liable for damages resulting to another's property from that use unless he has been guilty of carelessness or unwarranted conduct or was making unreasonable use of the property with respect to the lawful business being conducted.

¶14 Defendants' argument is based upon the rule at common law. The acts complained of are in the nature of a private nuisance. Under the common law a private nuisance arose from the unwarrantable, unreasonable, or unlawful use by a person of his own property to the injury of another. The nature of the use with regard to the particular locality or zone was the basic element for consideration in determining whether a private nuisance existed.

¶15 But our Constitution has modified the common law. Section 23, art. 2, Bill of Rights, provides that no private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner. In a case of this character the use need not be of a careless or negligent nature, or unreasonable or unwarrantable, to entitle the injured party to...

To continue reading

Request your trial
19 cases
  • City of Tulsa v. Tyson Foods, Inc., 01-CV-0900-EA(C).
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • March 14, 2003
    ...Supply. Town of Lonoke v. Chicago, R.I. & P.R. Co., 92 Ark. 546, 123 S.W. 395, 398 (1909); British-American Oil Producing Co. v. McClain, 191 Okla. 40, 126 P.2d 530, 532-33 (1942) ("While a particular use may not be a nuisance per se it may grow into a nuisance per accidens."); Western Hide......
  • Garland Coal & Mining Company v. Few, 6026.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 27, 1959
    ...P.2d 574; Phillips Petroleum Co. v. Vandergriff, 190 Okl. 280, 122 P.2d 1020; British-American Oil Producing Co. v. McClain, 191 Okl. 41, 126 P.2d 530; Seismograph Service Corp. v. Buchanan, Okl., 316 P.2d 185;4 Smith v. Yoho, Okl., 324 P.2d 531; Superior Oil Co. v. King, Okl., 324 P.2d 267......
  • Union Texas Petroleum Corp. v. Jackson, s. 80,972
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • April 25, 1995
    ...acting together or in concert if their concurring wrongful acts occasion the injury. Id.; British-American Oil Producing Co. v. McClain, 191 Okla. 40, 126 P.2d 530 (Okla.1942); Indian Territory Illuminating Oil Co. v. Bell, 173 Okla. 46, 46 P.2d 481 Union maintains apportionment is possible......
  • Harris v. United States, 4570-4572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 5, 1953
    ...W. Page Keeton, Oklahoma Law Review, Vol. 3, No. 2, May, 1950; 2 A.L.R.2d 677; British-American Oil Producing Co. v. McClain, 191 Okl. 40, 126 P.2d 530; and other cases cited in the law review But the acts complained of here were performed by the federal government, and the liability, if an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT