Cities Service Gas Co. v. Eggers
| Decision Date | 23 January 1940 |
| Docket Number | 28051. |
| Citation | 98 P.2d 1114,186 Okla. 466,1940 OK 25 |
| Parties | CITIES SERVICE GAS CO. et al. v. EGGERS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 13, 1940.
Syllabus by the Court.
1. This court will review a verdict founded on conflicting evidence only for the purpose of determining whether it is supported by competent evidence, and not for the purpose of determining the weight of the evidence.
2. Evidence reasonably tending to prove the essential facts in a case, either directly or indirectly, or by permissible inferences is sufficient to sustain a verdict and judgment based thereon.
3. The owner of a tract of land has the right to drill water wells at such places thereon and to such a water producing stratum thereunder as desired and has the right to take water therefrom in its natural state and from its natural source.
4. When attempting to establish damages caused to a tract of land by the tortious acts of the defendant, it is error to assume, in a hypothetical question, material facts alleged but not theretofore established by competent evidence, but if on cross examination the hypothetical question is properly stated, the error is cured.
5. The general rule is that a person injured by the negligence of another is bound to use ordinary care in the treatment of such injury, and cannot recover enhanced damages arising from his neglect to exercise such care. City of Ada v Smith, 73 Okl. 280, 175 P. 924, 927.
6. In an action for damages for permanent injury to real estate caused by continual salt water pollution, the statute of limitations begins to run at the time it becomes obvious that a permanent injury has been suffered. However, in a case where the injury grows progressively greater due to a continuation of the tortious acts, the statute of limitations bars recovery only for the damages flowing exclusively from that portion of the permanent injury which was obvious more than two years prior to the commencement of the action. Commercial Drilling Co. v. Kennedy, 172 Okl. 475, 45 P.2d 534.
7. Allegations of petition held to sufficiently allege commingling of salt water deposited in creek by various defendants, so that it was not error for court to instruct the jury that where the separate independent acts or negligence of several persons combine to produce directly a single injury, each is responsible for the entire result even though his acts or neglect alone might not have caused the injury and even though there is no concert in the acts of the defendants.
8. Evidence examined and held sufficient to sustain verdict and judgment thereon.
Appeal from District Court, Kay County; Claude Duval, Judge.
Action by Alice Eggers against Cities Service Gas Company and others to recover damages arising from the pollution of subterranean waters under the plaintiff's farm. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment affirmed.
G. A. Chappell, of Newkirk, and Hayes McCoy, F. H. Bacon, S. N. Hawkes, and A. M. Ebright, all of Bartlesville, for plaintiffs in error.
Howard F. Wilson, of Blackwell, for defendant in error.
This is an action by Alice Eggers to recover damages arising from the pollution of the subterranean waters under her farm, allegedly caused by the defendants. The parties will be referred to as they appeared below.
Judgment in the amount of $1,375 was rendered for plaintiff.
Plaintiff's evidence shows that Bitter Creek runs through a portion of her farm; that about eight miles north of plaintiff's farm the defendants own various oil and gas leases on which certain oil and gas wells have been operated for fifteen or twenty years; and that during that time great quantities of water containing salt, oil and other deleterious substances have been released from said oil and gas leaseholds into Bitter Creek.
All parties concede Bitter Creek, including that portion on plaintiff's farm, has been permanently polluted for fifteen or twenty years.
Plaintiff's evidence further shows that her house, barn and other improvements are east of Bitter Creek; that in 1933 near the house and about 110 feet from the east bank of said creek there was a drilled water well about twenty-four feet deep, which she had used over twenty years; that during 1933, because of the drouth and caving of the original well it did not produce sufficient water to supply the needs of her farm; that in 1933, plaintiff had another well drilled a few feet from the old well to a depth of 33 feet; that the new well furnished an ample supply of usable water until in 1935, when the same became so salty the water could not be used for domestic purposes; that it had been necessary for her to haul water for household uses for a year and a half; that the wells were the only source of water on the farm since Bitter Creek became polluted.
A sample of water taken October 18, 1935, from Bitter Creek near plaintiff's well, tested 1177.6 grs. of salt per gallon, while a sample taken the same date from plaintiff's well tested 128.3 grs. per gallon. Samples taken from the same places September 7, 1937, showed salt contents respectively of 2365 grains per gallon and 137 1/2 grains per gallon.
The uncontradicted evidence of the defendant shows that plaintiff's first well had been drilled to a soapstone formation which underlays most of the country in the vicinity of plaintiff's farm; that the new well being deeper than the old well had penetrated the soapstone formation and entered a coarse gravel stratum below; and that the water above the soapstone formation was uniformly good water, while that found below was usually hard or gyp water.
It was further shown that the water in Bitter Creek was 16.9 feet below the curb of the new well and that when not being pumped, the water in the well would rise about fifteen feet; that its level was then approximately the same as the level of the water in Bitter Creek.
Defendants first contend there is no competent evidence that any salt water from the wells of any defendant entered plaintiff's well from natural causes.
Upon the fact that the water level in the creek and the well were approximately the same, an engineer, testifying as an expert in behalf of plaintiff, gave as his opinion that there was contact between the water in Bitter Creek and the water in the well, and that the coarse gravel stratum into which the new well had been drilled was permanently destroyed and polluted by the water in Bitter Creek; that in his opinion the pollution would become worse. He was further of the opinion that the pumping of the well had caused the polluted water from near the creek to travel through the coarse gravel stratum to the well.
The trial court permitted this witness to qualify and testify as an expert. It is within the discretion of a trial court so to do. Defendants do not seek to show an erroneous exercise of this discretion, by showing the witness was not in fact qualified as an expert. Instead they quote extensively from the testimony of their own witnesses much of which conflicts with that of said expert witness. Thus there is raised a question of the weight to be given conflicting evidence.
While this court will review a verdict founded on conflicting evidence, it is only for the purpose of determining whether it is supported by competent evidence and not to determine the weight of the evidence. Farmers State Bank of Newkirk v. Hess, 138 Okl. 190, 280 P. 305, 66 A.L.R. 894. Evidence reasonably tending to prove the essential facts, either directly or indirectly, or by permissible inference, is sufficient to sustain a judgment. Braniff v. McPherren, 177 Okl. 292, 58 P.2d 871. And essential facts may be proved by circumstantial evidence in which event it is not necessary that proof rise to a degree of certainty which will exclude every other reasonable conclusion than the one reached by the jury. Marland Refining Co. v. Snider, 120 Okl. 116, 251 P. 989. See also Ramsey Oil Co. v. Dunbar, 172 Okl. 571, 46 P.2d 535; State Bank of Seneca, Missouri v. Miller, 171 Okl. 253, 42 P.2d 834.
Applying the above tests we hold there is sufficient competent evidence to sustain the finding of the jury that salt water from Bitter Creek entered and polluted the water in plaintiff's well. Though the above analysis of the evidence and conclusion thereon applies equally to all defendants, it is unnecessary, in so far as defendants Cities Service Gas Co., and Cities Service Oil Co., are concerned to rely upon such analysis alone because in a reply brief filed on...
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