Comanche Duke Oil Co. v. Texas Pac. Coal & Oil Co.

• Decision Date: 12 October 1927
• Docket Number: (No. 805 - 4466.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 298 S.W. 554
• Parties: COMANCHE DUKE OIL CO. v. TEXAS PAC. COAL & OIL CO.
• Court: Texas Supreme Court

298 S.W. 554

COMANCHE DUKE OIL CO. v. TEXAS PAC. COAL & OIL CO.

(No. 805 - 4466.)^*

Commission of Appeals of Texas. Section A.

October 12, 1927.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by the Comanche Duke Oil Company against the Texas Pacific Coal & Oil Company. A judgment for plaintiff was reversed, and judgment rendered for defendant, by the Court of Civil Appeals (274 S. W. 193), and plaintiff brings error. Reversed, and judgment of the district court affirmed.

McLean, Scott & Sayres, Theodore Mack, and Henry Mack, all of Fort Worth (H. K. Welch, of Ft. Worth, of counsel), for plaintiff in error.

John Hancock and Clarence Wightman, both of Fort Worth, for defendant in error.

Statement of the Case.

NICKELS, J.

Comanche Duke Oil Company sued Texas Pacific Coal & Oil Company and made the following substantial averments:

(a) It owned the mineral estate in a certain 10-acre tract of land in Stephens county upon which, prior to December 23, 1919, it had developed a well in which "oil was found in large and paying quantities," and from which oil continued to flow at the rate of about 500 barrels per day until about the 23d day of December, 1919, "when the said well was completely destroyed, demolished and rendered worthless by reason of the negligence, carelessness, and unlawful acts and conduct of the defendant, its agents, and employees, as is more particularly described hereinafter."

(b) Defendant owned or controlled the mineral estate in an adjoining tract of land upon which, and within 300 feet of plaintiff's well, it drilled a well to about 3,700 feet in depth. "Upon reaching said depth, the defendant, not being satisfied with the quantity of oil there found, negligently and carelessly and with full knowledge of the consequences that would follow, placed and caused to be placed and discharged" in its well "large and dangerous quantities of nitroglycerin consisting of about 600 quarts of said glycerine, and when the same was exploded by the defendant * * * the same disturbed and tore asunder the earthen structure for many hundreds of feet adjacent to the same, and particularly did break a certain structure which was keeping water from out the well of plaintiff, thereby causing the water to rush continually into said well and entirely destroying plaintiff's source of oil supply."

Recovery of damages in the sum of $300,000 was prayed. With a general demurrer and special exceptions (not material here) defendant answered with a general denial and, specially, that what was done by it "was a reasonable and customary use" of its property, which was "a reasonable, customary, and necessary use of said premises in a development of same for oil and gas purposes," and that what was done by it was done "in accordance with the custom of said business known to and practiced by all operators in said field, including the plaintiff," and "in the usual and customary manner followed by all operators in said territory."

The following diagram will illustrate the relative locations, etc., of the parties and of others in the immediate neighborhood:

                               O.....300 feet.....O.....300 feet.....O
                East-West Common Boundary
                ---------------------------------------------------------
                O.....300 feet.....O.....300 feet.....O.....300 feet....O
                

Locations of wells are indicated by "O"; these north of the "common boundary" are "Harrison Nos. 2, 3, and 4" of Texas Pacific Coal & Oil Company, No. 3 being farthest west and No. 4 being farthest east; No. 2 is 300 feet directly north of Comanche Duke Oil Company's well, which is the second from the east below the "common boundary." The first well to the east, below the boundary, is owned by the "Big Seven" group, and those to the west of Comanche Duke Oil Company's well are owned, respectively, by the "Bowhead" Company and the Prairie Oil & Gas Company. "Harrison No. 2" is the well in which the explosion occurred. All these wells were drilled by Hivick & Mohler, contractors, and logs of them were prepared and (except for that of the "Big Seven") became a part of the record.

For depths below 3,200 feet the logs, respectively, show strata as follows:

Plaintiff's well: 3200-330, black slate; 3330-60, sandy shale; 3360-85, brown shale; 3385-3409, slate; 3409-46, limestone; 3446-74, black slate; 3474-3563, "black lime;" 3563-66, "showing of oil;" 3566-3620, black slate; 3620-40, gray limestone; 3640-52, "black lime;" 3652-54, shale; 3654-77, sandstone; 3677-96 (bottom), "black lime."

Defendant's "Harrison No. 2": 3200-25, "black lime;" 3225-80, black shale; 3280-85, "black lime;" 3285-3340, black shale; 3340-95, shale; 3395-3415, black shale; 3415-50, "black lime;" 3450-89, black shale; 3489-3570, "black lime;" 3570-3620, black shale; 3620-41, limestone; 3641-55, "black lime;" 3655-95 (bottom), "showing of oil."

"Bowhead" well: 3200-3421, black shale; 3421-56, "black lime;" 3456-3504, black shale; 3504-64, "black lime;" 3564-3538, gray limestone; 3638-43, slate; 3643-50, "black lime;" 3650-70, gray limestone; 3670-80, "black lime;" 3680-85, gray limestone; 3685-3710, "black sandy limestone;" 3710-18 (bottom), slate.

Prairie Oil & Gas well: 3200-3400, shale; 3400-10, "black lime;" 3410-55, limestone; 3455-65, black shale; 3465-75, "black lime;" 3475-3585, limestone; 3585-3650 (bottom), nature of strata not shown.

Defendant's "Harrison No. 4": 3200-3320, black shale; 3320-40, "black lime;" 3340-70, black shale; 3370-75, sandstone; 3375-3435, "black lime;" 3435-75, black shale; 3475-3500, "black lime;" 3500-25, black shale; 3525-3620, "black lime;" 3620-3700, black shale; 3700-80 (bottom), "black lime and shale."

Defendant's "Harrison No. 3": 3200-3415, black shale; 3415-35, "black lime;" 3435-75, black shale; 3475-3500, "black lime;" 3500-5, "showing of oil;" 3505-3600, "black lime;" 3600-15, black shale; 3615-50, bottom, sandstone.

From surface downward to about the 600-foot level the logs show a comparative uniformity of strata; and between the 600-foot and 3200-foot levels substantial disparities in numbers and compositions of strata are shown.

The "usage" proof, introduced by defendant, consisted of the testimony of its witnesses Gordon (who at the time of the explosion was its officer and agent), that of Rapp, Nentwig, and Crow, "oil well shooters" employed by various torpedo companies, that of Mohler and Stone (members of the firm of Hivick & Mohler), and some testimony given by Calvert upon cross-examination, Calvert, at the time of the explosion and before and after that, was defendant's district superintendent in charge of operations in Stephens county; he appeared as a witness for plaintiff. The substance of that testimony is next shown:

Rapp:

"The amount of the lime that you have got with a showing of oil is what governs the size of a shot in a well; that is, from where you strike the lime to where you go through it. At that time nearly everybody was using 5-inch shells. Most of the wells were 6¼ and 6 5/8 inch holes. * * * They would put in enough of these 5-inch shells to cover the entire strata of the formation which they desired to shoot; that is known as shooting the formation. From my experience as a shooter in those fields, * * * a shot of 600 quarts was the usual and customary size of a shot to be made in an oil well; they even shot heavier than that. The heaviest shot that I know of as having been made in that district was 980 quarts. The company that I worked for shot one out of Cisco with 980 quarts. I shot a well for the Texas Company north about 5 or 6 miles with 690 quarts, and I shot one right next to it with 500 quarts. The Sullivan lease belonging to the Texas Company was shot with 690 quarts. The R. G. Lee was next to it, and it was shot with 500 quarts."

On cross-examination he said that the well in which 980 quarts were used "was a wild cat," with no well that he knew of "in 5 miles of it."

Nentwig:

"I * * * am familiar with the size of shots that my company used in shooting oil wells in those fields. A shot of 600 quarts of nitroglycerin in an oil well in that territory was an ordinary and customary shot to be made at that time."

Cross-examination: "I do not think that it is a fact `that 900 out of 1,000 wells shot in Stephens county were shot with less than 100 quarts of nitroglycerin.' Our usual shot was not about 80 quarts at that time. We were shooting 40 quarts in some of them, and 60 quarts in some of them, and 80 quarts in some of them, and in some 120. * * * A shot of 600 quarts * * * was not an exceptionally big lead, because they were all hard shots at that time, hard lime shots. I don't remember how many wells that I shot with 80 quarts, * * * but quite a few. I shot several with 100 quarts. I shot a well on the Hamil lease * * * using 660 quarts; that was not a wild cat well, there was a well in 600 feet of it" and it "was not affected by the shot." "Another well * * * was shot with 500 quarts. I helped shoot a well on the Jennings lease with 570 quarts. I also shot the well * * * on the Lee farm using 570 quarts, * * * also a well on the Rosenquest farm — I used 480 quarts on that well." "It is a fact that 90 out of every 100 wells that I shot in the same formation in Stephens and Eastland counties were shot with less than 100 quarts of nitroglycerin."

Redirect examination: "The first shot in the Britten well was 450 quarts, and the second shot was 500 quarts, and the third shot was 960 quarts. The Donnell well was shot with between 500 and 600 quarts. The oil operator is the one who directs us to shoot the well and the amount of shot to place in the well."

Crow:

"During the year of 1920, there were a good many wells in that territory being shot with 600 quarts of nitroglycerin. The amount of formation controlled the size of the shot used; that is, the amount of formation that you wanted to shoot. In other words, if you only had 50 feet of formation, then...