Davis v. Cities Service Oil Company, 66-68.

• Decision Date: 19 January 1970
• Docket Number: No. 66-68.,66-68.
• Citation: 420 F.2d 1278
• Parties: Rudy DAVIS, Harry McDaniels, Elmer Groom, Quentin Waples, Clem Wise, Milton Bowman, Robert Meyers, Trustees of the Methodist Church, a corporation of Rock, Kansas; et al., Plaintiffs-Appellants, v. CITIES SERVICE OIL COMPANY, Skelly Oil Company, American Petrofina, Incorporated, American Petrofina Company of Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

420 F.2d 1278 (1970)

Rudy DAVIS, Harry McDaniels, Elmer Groom, Quentin Waples, Clem Wise, Milton Bowman, Robert Meyers, Trustees of the Methodist Church, a corporation of Rock, Kansas; et al., Plaintiffs-Appellants, v. CITIES SERVICE OIL COMPANY, Skelly Oil Company, American Petrofina, Incorporated, American Petrofina Company of Texas, Defendants-Appellees.

No. 66-68.

United States Court of Appeals Tenth Circuit.

January 19, 1970.

Fred R. Vieux, Augusta, Kan., for appellants.

J. B. McKay, El Dorado, Kan., R. O. Mason, Bartlesville, Okl. (Cecil C. Cammack, Robert D. Oswalt, A. O. Holl, Roy Z. Johnson, Bartlesville, Okl., McKay & McKay, El Dorado, Kan., Holliman, Mason & Maddux, Bartlesville, Okl., of counsel, on the brief), for Cities Service Oil Co.

Cecil H. Frey, Tulsa, Okl. (Hawley C. Kerr, Tulsa, Okl., J. B. McKay and James B. McKay, Jr., El Dorado, Kan., on the brief), for Skelly Oil Co.

W. A. Kahrs, Wichita, Kan. (Robert H. Nelson, Wichita, Kan., on the brief), for American Petrofina, Inc., and American Petrofina Co. of Texas.

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Plaintiffs-appellants, the owners or tenants of property on or near the Walnut River south of El Dorado, Kansas, claim that their lands were polluted by oil and other substances which, during floods in May and July, 1961, entered the river or its tributaries from the premises of the oil companies, defendants-appellees. Jurisdiction is based on diversity. Trial to the court required 43 days. The court made comprehensive findings and concluded that the plaintiffs had failed to establish the liability of the defendants. Judgment was entered in favor of the defendants, and this appeal followed.

We are concerned with an area in southeastern Kansas which is drained by the Walnut River and its tributaries. The river flows in a southerly direction. On the northern outskirts of the city of El Dorado, the Walnut is joined by a stream known as the West Branch of the Walnut River. Just south of the city, Constant Creek joins the Walnut from the west. The properties of the plaintiffs are located five or more miles southerly from El Dorado.

Petrofina operates a refinery north of El Dorado and on the westerly side of the West Branch. Skelly has a refinery just south of El Dorado and west of the Walnut. Tracks of the Santa Fe railroad run through both refineries between the main facilities and the stream. Just before flowing into the Walnut, Constant Creek crosses the northeast corner of the Skelly property. Cities Service has a number of producing oil wells in an area known as Oil Hill and located northwest of El Dorado. Cities Service also produces oil from the Risley and Moyle leases some distance south of El Dorado.

According to official records, the Walnut River at El Dorado was slightly under flood stage during the May rains and slightly over flood stage during the July rains. On both occasions, water left the banks of the Walnut and inundated portions of the adjacent farms. The flood waters contained oil which caused crop damage. As found by the trial court, "the presence of oil in the Walnut River and on at least some, if not all, of the plaintiffs' properties downstream is not disputed."

The basic issue, as set forth in the pre-trial order signed by all the parties and approved by the court, is whether "pollution escaped from the premises of the defendants, or any of them, during the floods occurring in May and July, 1961."

No effort was made to amend or change this order. It measures the dimensions of the lawsuit. Century Refining Company v. Hall, 10 Cir., 316 F. 2d 15, 20.

The plaintiffs present as their prime argument an attack on the findings of the trial court. In effect they ask that we review the lengthy, complex, and poorly organized record and hold that as a matter of law they are entitled to damages and injunctive relief. They misconceive the function of an appellate court. It does not try the facts or substitute for the trial court in the determination of factual issues. Howard v. United States District Court for the District of Colorado, 10 Cir., 318 F. 2d 521, 523, and Maher v. Cities Service Pipe Line Company, 10 Cir., 286 F.2d 313, 315. The clearly erroneous rule governs the sufficiency of the evidence to support the findings. Southwestern Investment Co. v. Cactus Motor Co., 10 Cir., 355 F.2d 674, 676. In reviewing the evidence we recognize that the trial court, not the appellate court, determines the credibility of witnesses, McKeel v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 10 Cir., 419 F.2d 1291, and that the appellate court will not disturb reasonable inferences drawn by the trial court. National Farmers Union Service Corporation v. United States, 10 Cir., 400 F.2d 483, 485. We reject the request of plaintiffs' counsel to weigh the evidence. Our problem is whether the findings are clearly erroneous.

We first consider the evidence pertinent to Skelly. Witnesses for the plaintiffs testified to the presence of oil along the east-west township road which borders Skelly on the south. None of them made any attempt to ascertain if the refinery was the source of the oil or if any oil had drained to the river from the area. Skelly employees testified that no oil escaped from that area of the refinery. We agree with the trial court that the plaintiffs, at the most, established the presence of oil in the vicinity of the road but neither the source nor the destination of the oil.

On the eastern side of the refinery, near the confluence of the Walnut and Constant Creek, is an impounding basin which holds excess water when the runoff from the refinery exceeds the capacity of an oil-water separator. The basin is east of the railroad tracks and below the Santa Fe seep, which will be mentioned later. Overflow from the basin is directly to the Walnut without processing except that effected by retention. An oil detention baffle in front of the outfall weir is designed to prevent oil escaping with water. Plaintiffs' photographic evidence showed oil stains on the inside of the weir. The evidence for Skelly was that no oil escaped from the basin during the floods and that oil stains on the land between the basin and the river resulted from high water coming from the upper reaches of the Walnut and Constant Creek. The trial court's finding that no oil escaped from the basin during the pertinent periods is not clearly erroneous.

The Santa Fe seep is north of the impounding basin on land which in 1961 was in the possession of the railroad. Presence of oil in the seep for many years is not contested. Because of the proximity of the Skelly refinery to the seep, the plaintiffs claim that petroleum and chemical products passed through the subsurface and were collected in the seep. No direct proof was made of this subsurface drainage and the claim rests on inference. A witness for Skelly testified that he did not know the source of the oil appearing in the seep. The washing of the seep by the flood waters is immaterial to the liability of Skelly in the absence of proof that the pollutants in the seep came from the Skelly property. We share the amazement of the trial court that in view of the age of the seep and its importance in the litigation, the source of the pollutants therein was not identified. The inference of the plaintiffs shows no more than a possibility that the oil came from the Skelly refinery. A possibility is not enough to sustain liability. The trial court rejected the plaintiffs' inference and we cannot say that such rejection was unreasonable.

Skelly's Effluent No. 2 discharges water obtained from the stream, stored in ponds, and used for fire fighting purposes. No evidence shows any oil in the ponds or in the effluent. We are convinced the finding that the effluent was not a source of pollution is not clearly erroneous.

The last claim with regard to Skelly is based on subsurface pools of oil, shallow wells, and sumps on the refinery property. Skelly's refinery manager testified that no oil escaped from the refinery during the floods. Our attention is directed to no evidence of either surface or subsurface drainage from refinery wells or sumps which contributed to the pollution during the floods either by direct drainage or by drainage to off-property areas such as the Santa Fe seep. Again the evidence of the plaintiffs fails. At the most it shows only...