Denver Producing & Refining Co. v. Bunch

• Decision Date: 14 May 1935
• Docket Number: 24845.
• Citation: 45 P.2d 117,172 Okla. 209,1935 OK 525
• Parties: DENVER PRODUCING & REFINING CO. v. BUNCH et al.
• Court: Oklahoma Supreme Court

45 P.2d 117

172 Okla. 209, 1935 OK 525

DENVER PRODUCING & REFINING CO. v. BUNCH et al.

No. 24845.

Supreme Court of Oklahoma

May 14, 1935

Syllabus by the Court.

1. In an action for injury to an orchard, the measure of damages is the difference between the value of the premises immediately prior to, and immediately after, the injury, and if it is error to refuse a requested instruction covering this question, when the same has been omitted from the instructions given.

2. In an action for injury to orchard brought by owners of land on which same is located, in which no evidence is offered on value of premises before and after injury, and where that question is raised by demurrer to evidence and motion for directed verdict, and proper exceptions taken, it is error to overrule a motion for new trial.

3. In an action for damages for injury to orchard growing upon land, testimony of expert witnesses as to damage to trees is competent evidence to be considered together with evidence of value of premises immediately before and immediately after injury, and may support a judgment for damages, not in excess of the difference of the value of the premises before and after the injury.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by C. F. Bunch and another against the Denver Producing & Refining Company. Judgment for plaintiffs, and defendant appeals.

Judgment reversed and cause remanded, with directions.

Floyd C. Dooley and Stanley B. Catlett, both of Oklahoma City, for plaintiff in error.

Gordon Johnston and George E. Fisher, both of Oklahoma City, for defendants in error.

PER CURIAM.

This is an action to recover damages for injury to plaintiffs' orchard consisting of plum, cherry, peach, and apple trees located on tract of land owned by the plaintiffs. Plaintiffs introduced testimony showing defendant owned and operated oil well approximately 260 feet west of plaintiffs' orchard. That on or about the 15th day of March, 1931, defendant through its agents and employees, negligently opened certain valves on said well permitting crude oil to escape and flow therefrom for 45 minutes, and same was carried by wind and sprayed plaintiffs' orchard killing fruit trees therein.

The only evidence offered with reference to damages suffered was that of nurserymen testifying with regard to value of fruit trees killed and damaged.

Plaintiffs obtained judgment, and defendant appeals assigning errors:

(1) That the court erred in refusing defendants special instruction No. 1; and that court's instructions given to jury were erroneous.

(2) The court erred in admitting incompetent evidence over objection of defendant.

(3) That the verdict is not sustained by any evidence which would justify the jury in rendering verdict against defendant.

1. The first and third assignments will be considered together. Defendant requested the court to give instruction that the measure of damages to plaintiffs' property, if any, would be the difference between the actual value of said property immediately before the injury and the actual value of said property immediately after the injury. The trial court refused to give this instruction and due exception taken. The court failed to instruct the jury along this line. The instruction given by the court by which damages could be found was as follows: "Under the law of the State of Oklahoma it is unlawful for any owner of an oil well to suffer oil to escape therefrom or to be blown upon the premises of another. Now then, if you believe and find from a preponderance of the evidence in this case that the defendant Company did on or about the 15th day of March, 1931, suffer or permit oil to escape from its oil well which reached the premises of the plaintiffs in this and did any damages to their trees, the plaintiffs, then would be entitled to recover whatever damage they sustained thereby, not to exceed the sum of $1400.00. These are questions of fact for you to determine from the...