Commercial Drilling Co. v. Kennedy, Case Number: 22806

• Decision Date: 12 March 1935
• Docket Number: Case Number: 22806
• Parties: COMMERCIAL DRILLING CO. v. KENNEDY
• Court: Oklahoma Supreme Court

1935 OK 232

45 P.2d 534

172 Okla. 475

COMMERCIAL DRILLING CO. v. KENNEDY

Case Number: 22806

Supreme Court of Oklahoma

Decided: March 12, 1935

Syllabus

¶0 1. Limitation of Actions - Action for Damages for Permanent Injury to Land Caused by Continuing Salt Water Pollution From Oil Wells.

In an action for damages for permanent injury to real estate caused by continuing 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.

2. Appeal and Error - Witnesses - Discretion of Trial Court as to Extent of Cross-Examination.

The extent of a cross-examination is largely in the discretion of the trial court, and, unless it is made to appear that there has been an abuse of that discretion to the manifest injury of the complaining party, the case will not be reversed upon that ground.

3. Oil and Gas - Measure of Damages for Permanent Injuries to Real Estate From Salt Water Pollution.

In an action for damages for permanent injuries to real estate caused by salt water pollution, the measure of damages is the difference in value of the real estate before and after the injury, which difference in value is attributable to the injury.

4. Appeal and Error - Cause not Reversed for Inaccurate Instruction on Measure of Damages in Absence of Request for Correct Instruction Where Verdict not Excessive.

It is well settled by this court that where there is competent evidence to show damages alleged and the verdict is not excessive, and when the complaining party does not request an instruction correctly stating the measure of damages, the cause will not be reversed because the measure of damages is inaccurately stated in the instruction.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Action by Albert A. Kennedy against the Commercial Drilling Company to recover damages to trees and real estate caused by salt water pollution. From judgment in favor of plaintiff, defendant appeals. Affirmed.

Yancey, Spillers & Fist and Hamilton, Gross & Howard, for plaintiff in error.

Frank T. McCoy, John R. Pearson, and John T. Craig, for defendant in error.

BUSBY, J.

¶1 This action to recover damages to land caused by salt water pollution was filed in the district court of Osage county on December 10, 1930, by the defendant in error, Albert A. Kennedy, as plaintiff, against the plaintiff in error, Commercial Drilling Company, as defendant. The parties will be referred to herein as they appeared in the court below.

¶2 The trial of the cause to a jury in the district court on February 27, 1931, resulted in a verdict and judgment in favor of plaintiff for $2,125.

¶3 Plaintiff is the owner of a quarter section of land situated in Osage county, Okla.; the defendant is engaged in the production of oil and gas on neighboring, but not adjoining, land.

¶4 The basis of the plaintiff's action is that the defendant wrongfully permitted salt water and other oil field refuse to flow over and upon the land belonging to the plaintiff, thereby damaging approximately 15 acres of his farm.

¶5 Plaintiff's petition was divided into two causes of action. In that portion of his petition denominated the first cause of action, he asserted, in substance, that the wrongful pollution had resulted, during the two years immediately preceding the filing of his action, in the destruction of 130 valuable pecan trees growing on the land in question, each worth $20, damaging him in the total sum of $2,600. In that portion of his petition called the "second cause of action," he complained that within the two years immediately preceding the filing of his action the soil of the 15-acre tract had become so permeated with salt and other poisonous substances that it had become sterile and nonproducing and would remain in that condition for a period of 20 years, thus depriving him of the value of the use of the land, alleged to be $2 per acre per year, to his damage in the sum of $660.

¶6 The defendant's answer to each of the causes of action consisted of a general denial and a plea that plaintiff's action was barred by the two-year statute of limitations (subdivision 3 of section 101, O. S. 1931).

¶7 Although the evidence is conflicting, it amply supports the view that plaintiff's premises were injured in the manner described in plaintiffs' petition. The defendant does not challenge the sufficiency of the proof in this respect.

¶8 The various assignments of error presented in this appeal have been grouped in defendant's brief under three points or propositions, which we shall consider separately.

¶9 It is first urged that:

"The trial court erred in holding that the statute of limitation was not a bar to the bringing of this action."

¶10 In support of the contention on this point, defendant asserts, in effect, that (a) the plaintiff in this action is seeking to recover damages for permanent injury to his land; (1) that plaintiff's land was "visibly affected" by the wrongful pollution more than two years before the commencement of this action; and (c) that a cause of action for permanent damages to land occasioned by a wrongful and continuing trespass such as salt water pollution accrues when the land first becomes "visibly affected," and the statute of limitation commences to run as of that date.

¶11 The defendant has correctly classified plaintiff's action as one for permanent injuries to his land. In the case of Union Oil & Mining Co. et al. v. Bowman, 144 Okla. 54, 289 P. 296, we said, quoting from Coleman v. Bennett, 111 Tenn. 705, 69 S.W. 734, that:

" 'Permanency,' in the legal acceptation of the term, does not include the idea of absolute, but only of practical, irremediability'."

¶12 In that case we held that a condition created by salt water pollution, including the destruction of young timber, somewhat similar to the situation existing in the case at bar, constituted a permanent, as distinguished from a temporary, injury. In so holding we said:

"We are inclined to view that where a large quantity of oil or oil sediment, known as base sediment, escapes into a stream of water and is deposited on the banks, around the trees, and in the folds of the sand or earth, in the bottom of the stream, which is a natural consequence where water is running, the injury, in a relative or practical sense, is of a permanent nature."

¶13 Thus in the case now before us the pleadings describe and the proof establishes a condition which will exist for many years, a condition which cannot be remedied in the near future. The growing trees were a part of the soil itself and cannot be replaced until the productive qualifies of the soil are regained, if ever. The condition is, for practical purposes, irremediable. The injuries for which recovery sought are, therefore, in contemplation of the law, permanent.

¶14 A consideration of defendant's assertion that the land was visibly affected by the wrongful pollution more than two years before the commencement of this action, requires a brief review of the evidence which we have not heretofore mentioned in this opinion. It appears from the record that salt water and other oil field refuse released by the defendant began to flow along the section line adjoining plaintiffs' premises as early as 1926; that such flow continued with some interruptions until 1929, and, perhaps, to a limited extent, even longer. There is no controversy that during this time salt water overflowed from the drain along the road and entered in and upon plaintiff's land. Since plaintiff's action was brought in December, 1930, it is apparent that a portion of the continuing trespass was committed prior to December, 1928. It is also apparent that a portion of the injury sustained by the plaintiff occurred prior to December, 1928. The exact amount of damages sustained by the plaintiff prior to that time is a matter on which there is a sharp conflict in the evidence. The plaintiff asserts and his evidence tends to prove that only a few of the pecan trees near the road had died prior to that time, while the defendant contends that a large number of the pecan trees had died prior to that time.

¶15 The defendant takes the position that regardless of the exact extent of the injury then suffered, the plaintiff's land was "visibly affected" prior to December, 1928, and that the statute of limitations barred his action for permanent injuries before he filed the same in December, 1930.

¶16 In the trial of the case, defendant demurred to plaintiff's evidence when plaintiff rested his case in chief, and at the close of all evidence moved the court to instruct a verdict in his favor. Both the demurrer and motion were based on the ground that plaintiff's cause of action was barred by the statute of limitations. Both were overruled. The defendant then requested that the court submit to the jury the following instruction:

"If you find that the plaintiff's land was visibly affected and injured by salt water, and that his pecan trees were dying at any time before the 10th day of December, 1928, his cause of action is barred by the statute of limitations and he cannot recover."

¶17 The requested instruction was refused, and the defendant excepted. The trial court then submitted the question to the jury by the following instruction:

"With reference to the statutes of limitation, as urged by the defendant herein as a defense to the claim made by the plaintiff, you are told that the statutes of limitation would run in this case against the recovery of all damages which occurred, if any, prior to the 10th day of December, 1928. And in this connection, you are told that the plaintiff herein could not recover any sum for

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