Cont'l Oil Co. v. Logan
| Decision Date | 31 March 1936 |
| Docket Number | Case Number: 24824 |
| Citation | 58 P.2d 554,1936 OK 300,177 Okla. 273 |
| Parties | CONTINENTAL OIL CO. v. LOGAN |
| Court | Oklahoma Supreme Court |
¶0 1. ESTOPPEL - Defendant Held not Estopped to Take Position Inconsistent With That in Former Suit in Which Plaintiff Was not Party, Though Record of Former Suit Admissible as Admission of Defendant.
A suit brought by a defendant, then plaintiff, in an action against a third party in another court in which a certain position was taken by the defendant, and in which suit the present plaintiff was not a party, does not operate as an estoppel against the defendant in taking an inconsistent position in the case at bar, as a defense which is contrary to the position taken in the former suit. The record of the former suit, while it is not an estoppel and does not conclude the party making it, it is competent evidence against him just as a declaration or admission made by him in any other manner or place.
2. TRIAL - Peremptory Instruction Improper Where Evidence Conflicting on Material Question.
In the trial of a jury case where the evidence of the plaintiff and defendant was in conflict upon a material question, it was error for the court to give a peremptory instruction to the jury over the objection of the losing party.
Appeal from Court of Common Pleas, Tulsa County; Wm. N. Randolph, Judge.
Action by T.G. Logan, Trustee, against Continental Oil Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
Wm. H. Zwick and A.L. Hull, for plaintiff in error.
Floyd Rheam, for defendant in error.
¶1 This is an action brought by T.G. Logan, trustee, against Continental Oil Company to recover for water in drilling operations sold from the southwest quarter of the northeast quarter of section 17, township 9 north, range 7 east, in Seminole county, Okla., during the months of March, April, May, June, and July, 1929. The plaintiff in his petition alleges that dur-the months of March, April, May, June, and July, 1929, he was the owner of the above-described real estate and was the owner of all water in all streams and ponds located and situated on said land, and that the defendant during said time used water from said land from the streams and ponds located thereon, which was of the reasonable value of $10 per day.
¶2 The defendant filed its answer, which consisted of a general denial, and alleged that during the year 1928, said real estate was owned by one W.J. Monroe, who had impounded waters on said land and sold the same from the premises. That thereafter, by oral agreement, W.J. Monroe leased said premises to one O.M. Boring for the year 1928, and that said O.M. Boring went into possession of the premises under the terms of the lease and remained in possession during the year 1929, with the consent of the plaintiff. That the said O.M. Boring, by reason of the custom theretofore established, sold the water to the defendant, and that the defendant paid the said O.M. Boring for the value thereof. That under the terms of said lease the said O.M. Boring had the right to the use of the surface rights of the premises, including the right to impound and dispose of the surface waters. That the said O.M. Boring went into possession of the premises under provisions of the lease and continued in possession during the year 1929. That he repaired the dam and impounded the water upon the premises, and that the defendant paid for said water.
¶3 The plaintiff filed his reply which consisted of a general denial and pleads an estoppel against the defendant for the reason that the defendant had filed a suit on the 25th day of October, 1929, in the district court of Kiowa county, Okla., against O.M. Boring, in which suit the defendant took an entirely inconsistent position with its position in this cause. That it prosecuted said cause to a final determination with full knowledge that the plaintiff, T.G. Logan, trustee, was the owner of the land described in the plaintiff's petition and was the owner of water in the ponds and streams located thereon, and attaches as an exhibit a copy of the journal entry showing final disposition of said cause, together with another exhibit showing the agreement upon which the cause was settled in Kiowa county.
¶4 Upon the issues so made the cause was tried. The evidence in the case introduced by the plaintiff disclosed the following facts: W.J. Monroe was the owner of the real estate above described at the beginning of the transactions hereinafter set forth. He testified that he rented the real estate to one Earl Boring, the son of O.M. Boring, for the year 1928; that there was a creek running through the premises from the north to the south; that O.M. Boring occupied the premises immediately south of the land belonging to the said W.J. Monroe, and that the creek also ran through the land of O.M. Boring. He testified that during his occupancy, sometime prior to 1928, he had constructed a dam across the creek and impounded waters on the real estate and sold waters to various parties conducting drilling operations in the vicinity; that the creek had a well-defined channel and was a running stream. He stated he did not at any time rent the real estate to O.M. Boring, and that he did not rent the real estate to O.M. Boring for the year 1929; that he did not know whether or not the place was cultivated in 1929; that sometime in 1927 or 1928, he had some litigation, and that he came and stayed two nights with O.M. Boring, but that he did not enter into any agreement with O.M. Boring to go into possession of said real estate.
¶5 The plaintiff, T.G. Logan, trustee, testified that on or about the 15th day of March, 1928, he entered into a trust agreement with W.J. Monroe which involved the real estate above described, together with other real estate and other property, and introduced said trust agreement. He also testified that a trust deed was given him for said real estate in connection with said trust agreement, and introduced said deed in evidence. The deed shows to have been dated the 4th day of August, 1928, and shows to have been recorded on August 8, 1929. He testifies that the trust agreement was renewed from time to time, and introduced copies of the renewal.
¶6 The plaintiff, T.G. Logan, trustee, also testified that at the time the trust deed was executed he did not know who was in possession of the real estate involved in this action; that he had never seen it; that he had never authorized O.M. Boring to sell water off the property and had had no conversation with him.
¶7 The defendant demurred to the testimony, which demurrer was overruled, and the defendant excepted. O.M. Boring then testified for the defendant that he lived in Seminole county during the years 1926, 1927, 1928, and 1929; that he lived on section 17, township 9 north, and range 7 east on the property just south of the 40 acres owned by W.J. Monroe. He testified that the 40 acres owned by W.J. Monroe were traversed by a creek from the north to the south, which also ran over the land of the witness; that the creek was a running stream of water and with well-defined banks, with shrubbery growing on the banks; that in 1926 W.J. Monroe constructed a dam across the creek and impounded the water from said creek, and that he sold water to the people operating oil wells in the vicinity. He states that during 1928 and 1929, he had charge of the 40 acres involved in this lawsuit. He states that he came into possession of the land as follows: That he had discovered that W.J. Monroe had been sued and service had been made by publication; that he found a man that knew Monroe, and had word sent to Mr. Monroe; that Monroe then came to his home and stayed at his place for a period of approximately two weeks, and that he and Monroe together visited an attorney, with the object in view of getting the judgment set aside, and that the witness advanced Monroe some money for that purpose; that he had an oral agreement with Monroe that he would take possession of the 40 acres during the controversy, and assist him in getting his business adjusted, and for the service he was to receive a deed to the surface rights of the 40 acres; that under said agreement he went into possession of the real estate and farmed it for the years 1928 and 1929; that he repaired the dam which had been washed out and impounded the water from the creek and sold the water to the defendant in this case.
¶8 He testified that Monroe failed to carry out his portion of the agreement. He testifies that Monroe was willing to make the deed, but his affairs were in such condition that he could not make the deed at the time and was to make it later; that Monroe had told him to look after the land and care for it; that while he was on the land he heard a rumor to the effect that Monroe had deeded the 40 acres to T.G. Logan as trustee, but he did not ascertain whether the rumor was true; that he was informed that Mr. Logan, as trustee, was expecting a rental for the land; that during the year 1929 he received no demands for rentals from Mr. Logan; that the witness left the farm on the 8th day of September, 1929, and had not been back to the place; that he raised some crops on the land in 1929.
¶9 Mr. Logan then further testified, and stated in a former hearing he had testified that either O.M. Boring or his son, at the time he accepted the trust deed, was supposed to be the tenant on the 40 acres, and had possession of the same, but that he did not know whether he was physically present on the land; that it was his understanding that Boring was on the land as an agricultural lessee, a farmer tenant. He stated that the date the tenancy should have expired was the 1st day of January, 1929; that the land had not been leased since the 1st day of January, 1929; that he understood it was being farmed during the year 1929; that he had no objection to Mr. Boring remaining on the land and farming it as long as h...
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