Dellinger v. Skelly Oil Co., 2834

• Citation: 236 S.W.2d 675
• Decision Date: 09 February 1951
• Docket Number: No. 2834,2834
• Parties: DELLINGER et al. v. SKELLY OIL CO. et al.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 675

236 S.W.2d 675

DELLINGER et al. v. SKELLY OIL CO. et al.

No. 2834.

Court of Civil Appeals of Texas, Eastland.

Feb. 9, 1951.

Rehearing Denied March 2, 1951.

Beall & Yonge, and James Pearson, Sweetwater, for appellants.

James Little, Big Spring, for appellees.

COLLINGS, Justice.

This suit was filed by appellants, Mrs. B. V. Dellinger and husband, B. V. Dellinger, against Skelly Oil Company and The Independent Exploration Company. Appellants alleged that The Independent Exploration Company, acting as the agent of Skelly Oil Company, while conducting seismic operations on land adjoining a tract owned by appellants, negligently set off charges of dynamite in test holes which proximately caused their water well to dry up to their damage. The specific acts of negligence charged by appellants against appellees were: (1) that they conducted exploratory operations too close to appellants' well; (2) that they used excessive charges of dynamite in conducting their operations, and (3) that they exploded such charges at the same depth as the water well when they knew or should have known that such explosions at such depth would ruin the well. Appellants presented their case and rested and appellees rested without offering evidence. The court, upon motions by appellees, withdrew the cause from the jury and rendered judgment for appellees.

The evidence discloses that appellants owned a half section of land near Maryneal in Nolan County, Texas, with a 75 foot water well near the west end of such tract; that the well had been in use about 13 years prior to October, 1948, and would produce from 4 to 5 gallons of water per minute. It had been supplying water for about 300 head of sheep prior to the time it began to dry up. The shallow water in that community runs in streams and is usually found at a depth of 60 to 80 feet below the surface.

On September 1, 1948, appellee, The Independant Exploration Company, in the employ of Skelly Oil Company, sent a seismograph party to the Maryneal community for the purpose of conducting exploratory operations to determine whether the formations in that community were favorable for the accumlation of oil and gas. On September 9th they were conducting such operations on a tract of land which corners with the land owned by appellants upon which the water well in question is located. Two test holes had been drilled to a depth of approximately 70 feet where they encountered crevices and lost all of their mud. Another hole was then drilled to a depth of 75 feet in which the Exploration Company, on such date inserted two 25 pound charges of dynamite at different times. The evidence shows that in conducting its operations in the Maryneal community, the Exploration Company used explosives in the amount of 25 pounds, or less.

The distance from appellants' well to the place where the shooting occurred was 894 feet. There was nothing to obstruct a person's view between the place of the shooting and the water well. An examination of a picture introduced in evidence shows very little difference in the surface elevation of the water well and the test holes. The wind mill at appellants' well was only a four foot mill and the tower and other equipment on the well indicated that it was shallow well.

A Mr. Jones, who was appellants' neighbor and was pasturing approximately 100 herd of sheep on appellants' land, went to see about his stock on October 1st and found that the well was no longer pumping water. He contracted Mr. Dellinger about the matter and the two of them examined the well. They pulled the sucker rod, put on new lathers and re-assembled the wind mill, but it still did not produce water. They then went back into the well again but were again unsuccessful. The evidence shows that within 3 or 4 days appellants expected to move the stock which had been using this well to another pasture. When the well ceased to supply water, they moved the stock prior to the time intended.

In March, 1949, appellant Dellinger again wanted to use the pasture and again attempted to fix the well. He employed a water well repairman and they put new leathers on the sucker rods but the well still produced no water and when a careful examination was made it was found that the bottom of the well was entirely dry. Appellants then hired a driller to drill another well during the first part of June of 1949. In this new well no water was found at the 75 foot depth and to get water, it was necessary to drill to a depth of 230 feet. The increased depth of the new well required considerable extra expense not only in the cost of drilling but also for special sucker rods, additional casing and a larger tower and mill.

There was testimony to the effect that a water well which dries up from natural causes in the Maryneal community will get weaker and weaker over a period of about a year and fainally quit producing water. The evidence shows that the well here involved was pumping water within a week before it was discovered by Mr. Jones to be no longer producing.

Appellees discharged their two 25 pound shots of dynamite on the 9th of September, 1948, and the testimony indicated that the well would not pump water on October 1, 1948. The shots were detonated in a hole approximately 75 feet deep and appellants' water well was 75 feet deep. There was no testimony as to whether the Exploration Company found any water in the test hole in which the shots were discharged.

Walter Stapp testified that he had experience in blasting with dynamite at distances between 800 and 900 feet from water wells; that he had drilled wells which originally produced less water than desired and would then drill another well about 300 yards from the first and strike the same stream of water, then shoot the second well. He testified that this course of procedure would sometimes result in one or two good wells or that it might ruin both of the wells. He stated that he had known blasting within 300 or 400 yards of a water well to dry it up; that he had made a study of the effect of plasting on water wells and the nature and characteristics of underground water and its habits. He testified that the thickness of the sands and formations in which the water was located made a great deal of difference in the amount of dynamite that could be safely used and that a proper study of the sands concerned could reasonable determine that amount of dynamite could be used without damaging nearby wells. He stated that if the shooting was carried on above or below the water sand it would not ordinarily ruin other water wells but that this depended upon the size of the shots used, and that if the shots were made 100 feet from the water sand it would take an 'awful shot' to damage a nearby well. He testified that a 25 pound shot was a larged shot.

It is well settled in this State that liability for damage caused by the use of explosives hinges upon the existence of negligence in setting off the explosion. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221; Indian Territory Illuminating Oil Co. v. Rainwater, Tex.Civ.App., 140 S.W.2d 491 (Err.Dis.); Crain v. West Texas Utilities Co., 218 S.W.2d 512 (N.R.E.); Standard Paving Co. v. McClinton, Tex.Civ.App., 146 S.W.2d 466; Stanolind Oil & Gas Co. v. Lambert, Tex.Civ.App., 222 S.W.2d 125; 35 C.J.S., Explosives, § 8, page 239.

The sole point presented on this appeal is appellants' contention that the trial court erred in withdrawing the case from the jury and entering judgment for appellees. Appellants urge that the pleadings and evidence presented controverted issues of fact which should have...