Comar Oil Co. v. Richter

• Decision Date: 18 October 1927
• Docket Number: Case Number: 16728
• Citation: 260 P. 60,1927 OK 357,127 Okla. 153
• Parties: COMAR OIL CO. et al. v. RICHTER.
• Court: Oklahoma Supreme Court

1927 OK 357

260 P. 60

127 Okla. 153

COMAR OIL CO. et al. v. RICHTER.

Case Number: 16728

Supreme Court of Oklahoma

Decided: October 18, 1927

Syllabus

¶0 1. Landlord and Tenant -- Contract Construed One Between Landowner and Cropper and not One of Tenancy.

Where B. enters into a contract with R., a landowner, whereby the former shall help prepare the land, plant, cultivate and gather the crops on such land, and is to receive therefor, as compensation, a share of the crops so grown, and where the possession and control of the land and the supervision thereof remain in the owner, who lives upon said land, and who also aids in the cultivation of the crop and furnishes stock and equipment therefor, and where no general right of occupancy of said land or the control thereof is given to B., except in so far as may be necessary for the cultivation of the crop thereon, such arrangement does not create the relation of landlord and tenant, but B. becomes a cropper and his rights as such are to be determined by the law pertaining to employer and employee, or landowner and cropper.

2. Same--Action by Landowner for Damages from Pollution of Waters--Cropper not Necessary Party.

Under the circumstances enumerated in paragraph 1 above, B., the cropper, would not be a necessary party to an action brought by R., the landowner, to recover damages to his growing and unmatured crop accruing by reason of the negligence of defendants in permitting salt water, crude oil, and base sediment to be discharged into a natural water course traversing said land, thus polluting the waters thereof and damaging the crop.

3. Same--Instructions as to Contributory Negligence.

In an action for damages for negligent destruction of plaintiff's crop and stock, where the defendants' answer does not allege that plaintiff's damage was due to his own neglect, and where, at the close of plaintiff's evidence, defendants demur thereto and stand upon their demurrer, it is not reversible error for the court to charge the jury that "it is the duty of a person, seeing himself damaged or about to be damaged, to use all reasonable efforts to prevent or minimize those damages," and to refuse an instruction to the effect that if they should find that some of the damage to plaintiff was due to his want of ordinary care, he could not recover any damage, which he, by the use of reasonable care, could have prevented, where the evidence of plaintiff does not disclose any negligence or want of care on his part.

4. Same--Judgment for Damages Sustained.

Evidence examined, and it is held that the same is sufficient to be submitted to a jury and to support the verdict and judgment thereon, and that no error was committed in overruling defendants' demurrers and motions to direct a verdict.

Commissioners' Opinion, Division No. 1.

Error from District Court, Kay County; Claude Duval, Judge.

Action by F. R. Richter against Comar Oil Company et al., as trustees of Oklahoma Oil Properties, for the recovery of damages to crops, etc. Judgment for plaintiff, and defendants appeal. Affirmed.

Redmond S. Cole, Ramsey, de Meules & Martin, Victor C. Mieher, H. S. Gurley, W. K. Moore, Felix Duvall, and Koerner, Fahey & Young, for plaintiffs in error.

Sargent & Ross, for defendants in error.

BENNETT, C.

¶1 A civil action for the recovery of damages brought in the district court of Kay county by F. R. Richter against Comar Oil Company, a corporation, Amerada Petroleum Company, a corporation, Pennok Oil Company, a corporation, Blackwell Oil & Gas Company, a corporation, Marland Refining Company, a corporation, Gypsy Oil Company, a corporation, and C E. Wentz and J. G. McCaskey, as trustees of Oklahoma Oil Properties. This cause was tried to a jury and a verdict was rendered therein followed by a judgment of the court in favor of the plaintiff and against the defendants, who bring this cause here for review. The parties will be referred to as plaintiff and defendants as they were designated in the trial court.

¶2 The petition of plaintiff alleged that he owned in fee the northeast quarter of section 35, township 25 north, range 1 west. of the Indian Meridian, in Kay county, Okla., and that he owned a school lease on the northwest quarter of section 36, township 25 north, range 1 west of the Indian Meridian, in Kay county, Okla.; that said farms were in high state of cultivation, fenced and cross-fenced, and that the same were properly stocked with horses, cattle, hogs, etc, and that plaintiff was accustomed to reap from said premises profitable crops of wheat, hay, and other farm products. That there flows across said farm Bird's Nest creek, which enters said farm near the northwest corner and flows off said farm near the southeast corner, and that up to April, 1923, the said creek furnished plaintiff's farm for all purposes an abundance of fresh water. That the defendants are now, and have been since the early part of 1923, actively engaged in the production of oil and gas from certain leases owned by them situated above and to the west of plaintiff's farm and along the watershed which feeds Bird's Nest creek. A description of the several leases operated by the defendants is set out, and it is alleged that all of the same are within the drainage basin of said creek, and that all of the water flowing from the surface of said leases drains into said creek, and that the defendants in operating for and producing natural gas and crude oil have brought large quantities of oil, base sediment, and salt water to the surface, which they and each of them have carelessly and negligently allowed to collect on the respective leaseholds to be washed off or drained off into gullies, drains, ravines and branches, and thence into Bird's Nest creek, whereby the said creek became polluted and the water thereof was rendered unfit for man or beast, and that during the spring of 1923, the said stream overflowed its banks on several occasions due to excessive rains and large quantities of crude oil, base sediment and salt water, which the defendants had negligently allowed to become deposited on their lands, were swept down across the farm of plaintiff, destroying 80 acres of wheat, poisoning his horses and hogs and chickens which had access thereto, and causing the plaintiff other loss and expense, all of which are set out in detail and on which account the plaintiff prays judgment.

¶3 Plaintiff alleges that he lost wheat on fee land of the value of $ 800; that his hogs were damaged to the amount of $ 136; that he had to remove his cows from the farm at a cost of $ 45; that he lost two horses by death, $ 225; and damage to his 27 other horses amounting to $ 500; damage to his chickens $ 120; 15 acres of grass, $ 150; extra labor in caring for his stock, $ 200; and also 100 acres of wheat on his school lease, $ 1,000; and the destruction of 100 acres of stubble, $ 200.

¶4 Separate answers were filed by the several defendants. The answer of the Amerada Petroleum Company is perhaps typical of the answers filed. It consists of, first, a general denial, and admits that it holds a lease on the lands described as under lease by said defendant in the plaintiff's petition, and alleges that none of the other defendants have any interest in the said lease, and that said defendant operates, separately and apart, its own lease without interest or participation by the other defendants; alleges that there is a defect of parties and a misjoinder of causes of action in plaintiff's petition and denies that it operated its lease in a negligent or wrongful manner.

¶5 F. R. Richter, plaintiff, testified in substance that he had 125 acres of land in cultivation on his homestead, the balance being in pasture and grass, except a few acres for pump station operated by an oil company; that Bird's Nest creek traverses his farm from northwest to southeast, and that prior to the oil operations of defendants the water in the creek was good for all proper purposes, and that in 1923, in the spring, it became unfit for use, and there were two freshets by reason of which the creek overflowed its banks; the first was in early spring, the other in June, 1923; his wheat was then in the boot, and that the water spread over his wheat and while the water was still on the wheat it turned white and died. The water also covered 91 acres of wheat on his school land. This wheat was well along; that the wheat, in these tracts which was not injured made about 16 bushels to the acre, and that which was overspread with water would have made the same if it had not been overflowed; that the wheat was worth $ 1 per bushel, and cost 21 cents per bushel to harvest, thresh and market. That he had 17 head of undeveloped shoats weighing 40 pounds in August, 1923, at the time suit was brought; that they should have weighed under normal conditions 140 pounds; their market value was 8 cents per pound. That he had 27 horses, and that the oil got on them and their hair peeled off, their limbs swelled, and they lost flesh and two of them died; that they had access to the creek; that they were in good condition before the flood. He says that the animals had what was known as oil field poisoning. The horses quit eating, got thin, and had running sores, and became practically worthless on the market, and that he sustained a loss of $ 75 per head. That he had to hire extra help to care for the stock, wiping the oil off them, and to keep them in the barn off the oil, and that the extra help was worth $ 50 per month for 3 1/2 months.

¶6 Plaintiff was asked the following questions:

"Q. Do you know what caused that wheat to die? A. Yes. Q. What caused it to die? A. Oil and salt water. * * * Q About how deep did the water get over the nine or ten acres? A. Probably four inches to six inches; it varied, shallower and deeper. Q. Now, how large was the wheat at the time this water went over? A. It seemed to be just heading out, probably in the boot. Q. In the boot, the latter part of

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