Daly v. The Gypsy Oil Company
| Decision Date | 03 July 1931 |
| Docket Number | 30,043 |
| Citation | 133 Kan. 551,300 P. 1099 |
| Parties | ARTHUR DALY, Appellee, v. THE GYPSY OIL COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1931.
Appeal from Sumner district court; WENDELL P. READY, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. WATERS--Destruction of Subterranean Supply--Evidence. In an action to recover damages for drilling a core-drilled hole to ascertain the geology and character of the ground in a certain location, where the hole was negligently left unplugged and unfilled by which plaintiff's near-by water wells were drained and destroyed, the evidence is examined and held to be sufficient to uphold a verdict and judgment in favor of plaintiff.
2. DAMAGES--Mitigation. The rule requiring a mitigation or reduction of damages by an injured party, where injury results through the negligence of a wrongdoer, is held not to be applicable to the case on trial.
3. WATERS--Destruction of Subterranean Supply--Instructions. Requested instructions not given, considered and held to be without error.
Ed. T Hackney, of Wellington, James B. Diggs, William C. Liedtke, Russell G. Lowe, Redmond S. Cole and C. L. Billings, all of Tulsa, Okla., for the appellant.
Bert E. Church, of Wellington, W. L. Cunningham, D. Arthur Walker, Fred G. Leach and William E. Cunningham, all of Arkansas City, for the appellee.
This action was brought by Arthur Daly against the Gypsy Oil Company, a corporation, to recover damages for negligently destroying the water supply of plaintiff for domestic use and for his live stock. The plaintiff prevailed, and the defendant appeals.
In his petition plaintiff alleged that he owned and operated a farm for general agriculture and live-stock business; that he had thereon two wells, one near his house for domestic use, which was about thirty-one feet deep, and another near his barns and outbuildings about twenty-three feet deep, for the use of his live stock kept on the farm, and that these wells had furnished an unlimited supply of good water for more than forty years prior to the time it was drained and destroyed by the negligence of the defendant. It was alleged that the defendant was engaged in core drilling in the community for the purpose of determining the geology and character of the ground in that section of the country, and with the view of exploring for oil and gas. In August, 1929, defendant drilled the hole on the corner of plaintiff's farm about 450 feet deep, and when the drilling was finished and the core-drilled hole abandoned, defendant knowingly and negligently failed to fill and plug the core-drilled hole, with the result that the vein of water supplying the plaintiff was drained and the wells rendered worthless to him. Plaintiff stated at length the nature of the loss occasioned by the exhaustion and ruin of the wells, and asked for damages in the sum of $ 2,950. In an amendment to the petition, which was permitted, it was alleged that the failure to properly fill and plug the abandoned hole consisted in merely stuffing some rags and cloths in the hole about four feet from the top and then placing dirt upon the top of the rags and leaving the hole below four feet from the surface entirely open and unfilled; that if the abandoned core-drilled hole had been properly plugged and filled from the bottom to the top, the veins of water supplying the plaintiff's wells would not have been permitted to run down into the unfilled and unplugged hole.
A demurrer of defendant to plaintiff's petition was overruled, whereupon defendant filed an answer admitting its corporate existence and denying all other averments of the petition. A trial was had with a jury, which resulted in a verdict for plaintiff. Special findings were returned with the verdict to the effect that defendant was negligent in not plugging and filling the core-drilled hole properly, and also that the experience of prudent operators, of which the defendants should have had knowledge, as to the effect of core drills on water wells, would cause a reasonably prudent operator to anticipate that leaving the core-drilled hole as it was left would drain and destroy plaintiff's wells.
The principal question raised upon this appeal is: Was the evidence sufficient to support the allegations of negligence and to justify the verdict rendered? Another is that if there was sufficient evidence of negligence to justify the court in submitting the case, should the jury have allowed the defendant something in mitigation of plaintiff's damages? And a question is also raised upon the refusal of the court to give an instruction that it is proper for the jury to call to its aid, in arriving at a verdict, the knowledge and experience it possessed in common with the generality of mankind in the matter as to the effect of core-drilled holes on water wells.
As to the sufficiency of the evidence to sustain the verdict, there was considerable testimony tending to support the averments of plaintiff's petition and the verdict returned. Testimony was produced by the plaintiff to the effect that the hole was drilled by defendant on the corner of his farm, and about 574 feet from his house well, and about 800 feet from his stock well. Previous to the sinking of the core-drilled hole there had been an abundance of good wholesome water in his wells. The hole was drilled and completed in the latter part of August, 1929. The well of a neighbor, Moomaw, was near the wells of the plaintiff and water therein had been found in the same formation as water was found in plaintiff's wells. Within a few days after the drilling was completed the Moomaw well had been drained dry, and in October plaintiff found both of his wells to be dry. The hole drilled by defendant was four inches in diameter and when finished and abandoned by defendant it was not filled up or plugged except that about four feet from the top of the hole gunny sacks and some old worn clothing had been pushed into the hole, and above this clothing dirt was placed three feet or more up to the surface of the ground. Below this cloth plug there was no filling of the hole and no plugging of the veins of water. After the water was exhausted in plaintiff's wells and they had become dry the plaintiff with others examined the core-drilled hole, and after removing about three feet of dirt from the surface of the ground they found two gunny sacks and an old shirt and overalls which they removed. They found the hole was open below and the water was standing in the hole up about thirty-eight feet from the surface. The water in the hole appeared to be in motion, that is, slowly circling around the hole. Evidence was produced tending to show that drill holes that were not plugged or filled had drained and destroyed some wells in that section of the state. Instances were shown of wells being drained dry after the sinking of holes that were not plugged or filled and that after the same holes were filled or plugged, the water in the wells was restored. One witness stated that when a hole was drilled near his well it was not plugged and the water in his well was exhausted or drained out the following day. Three weeks later the drillers came back and plugged the hole, using cement, cinders and sand, with the result that the supply of water in his well was restored. Other witnesses testified that they had had similar experiences and that core-drilled holes dug near their wells had the effect of draining or destroying them, and that afterwards, when the holes were plugged, the water came back in the wells.
On the other hand, defendant produced a witness who testified that he had been with the company for years, had drilled more than 3,000 such holes and had never heard a complaint that the...
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