Donley v. Amerada Petroleum Corp.

• Citation: 106 P.2d 652,152 Kan. 518
• Decision Date: 09 November 1940
• Docket Number: 34781.
• Parties: DONLEY et al. v. AMERADA PETROLEUM CORPORATION et al.
• Court: United States State Supreme Court of Kansas

106 P.2d 652

152 Kan. 518

DONLEY et al. v. AMERADA PETROLEUM CORPORATION et al.

No. 34781.

Supreme Court of Kansas

November 9, 1940

Rehearing Denied Dec. 16, 1940.

Syllabus by the Court.

Where evidence sufficiently established a causal connection between failure of operators of oil leases to confine salt water, as required by law, and pollution of a creek on realty, owners of realty were not required to prove that operators, during the entire pollution period, employed the same methods or means of polluting the creek as were found to exist on a certain date of the pollution, in order to recover for damage for pollution.

In action against oil companies for damage to stock farm as result of alleged pollution of creek by salt water from oil wells, it was for jury whether there was a causal connection between salt waters in creek and operation of leases by oil companies.

Failure of a party to throw light on an issue peculiarly within his own knowledge or reach raises a presumption, open to explanation, that the concealed information is unfavorable to him.

In action against oil companies for damage to stock farm as result of alleged pollution of creek by salt water from oil wells, failure of oil companies to introduce evidence as to how long they had been emptying salt water into the creek gave rise to a presumption that the concealed information was unfavorable to them, where they operated the leases, and the information was peculiarly within their knowledge or reach. Gen.St.1935, 55-121, 55-122.

In action against oil companies for damage to stock farm as result of alleged pollution of creek by salt water from oil wells, the alleged fact that oil companies polluted the creek could be shown by circumstantial evidence.

Circumstantial evidence in a civil case need not rise to that degree of dignity which will exclude every reasonable conclusion other than that reached by the jury.

In action against oil companies for damage to stock farm as result of alleged pollution of creek by salt water from oil wells, owners of farm were not obliged to prove that others than oil companies, or another, did not contribute to the pollution, where evidence established facts from which it reasonably could be inferred that oil companies polluted the creek.

The fact that an act is unlawful and subjects a person to criminal prosecution is not in itself sufficient to determine liability in exemplary damages, but generally the intentional doing of a wrongful act with full knowledge of its character and without cause or excuse, is "malicious", and warrants an award of exemplary damages.

In action against oil companies for damage to stock farm as result of alleged pollution of creek by salt water from oil wells, evidence authorized verdict for exemplary or punitive damages. Gen.St.1935, 55-121, 55-122.

In action against oil companies for damage to stock farm as result of alleged pollution of creek by salt water from oil wells, though alleged violation of statute making it a duty to confine salt water produced from oil wells, and statute making the knowing or willful violation of the statute a misdemeanor and punishable by fine or imprisonment or both were in issue under claim for punitive damages, counsel of owners of farm should have refrained from referring to oil companies as "criminals," but there was no prejudice requiring the remand of the case for retrial, where evidence was sufficient to sustain verdict for owners of farm, and verdict was not excessive. Gen.St.1935, 55-121 55-122, 60-3317.

1. Where evidence sufficiently establishes a causal connection between the failure of operators of oil leases to confine salt water, as required by law, and the pollution of a stream on plaintiffs' land, plaintiffs are not required to prove defendants, during the entire pollution period, employed the same methods or means of polluting the stream as were found to exist on a certain date of the pollution period.

2. Failure of a party to throw light upon an issue peculiarly within his own knowledge or reach, raises a presumption open to explanation, of course, that the concealed information is unfavorable to him.

3. Circumstantial evidence, in a civil case, need not rise to that degree of dignity which will exclude every reasonable conclusion other than that reached by the jury.

4. When evidence establishes facts from which it reasonably may be inferred defendants polluted a stream on plaintiffs' land, plaintiffs are not obliged to prove that others, or another, did not contribute to the pollution.

5. The fact an act is unlawful and subjects a person to criminal prosecution is not in itself sufficient to determine liability in exemplary damages, but generally the intentional doing of a wrongful act with full knowledge of its character and without cause or excuse, is malicious and warrants an award of exemplary damages.

6. Remarks of counsel for plaintiffs examined and held not to constitute grounds for ordering retrial, in view of circumstances narrated in opinion.

Appeal from District Court, Cowley County; Stewart S. Bloss, Judge.

Action by Eugene Donley and Rachel K. Donley against the Amerada Petroleum Corporation and the Shell Oil Company, Inc., to recover temporary damages to a stock farm alleged to have been caused by the pollution of a creek which intersected pasture land. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment affirmed.

Albert Faulconer, Kirke W. Dale, and Donald Hickman, all of Arkansas City, Victor C. Mieher, Booth Kellough, and Paxton Howard, all of Tulsa, Okl., and Ralph J. May, of Oklahoma City, Okl., for appellants.

O. Renn and George Templar, both of Arkansas City, for appellees.

WEDELL Justice.

This was an action to recover temporary damages to a stock farm alleged to have been caused by the pollution of a creek which intersected the pasture land. Judgment was for plaintiffs, and defendants Amerada Petroleum Corporation, and the Shell Petroleum Corporation, have appealed.

Damages were sought and recovered for decreased annual rental value of the farm for a period of two years, October 18, 1935, to October 18, 1937. In addition to recovery of actual damages in the sum of $759, a verdict was returned and judgment rendered in the sum of $500 as punitive damages.

For brevity and convenience we shall refer to the Shell Petroleum Corporation as the Shell, and to the Amerada Petroleum Corporation, as the Amerada.

The evidence in behalf of appellees disclosed in substance the following facts: Appellees, Eugene Donley and Rachel K. Donley, owned and operated a farm of 253 acres in Sumner county. The farm was particularly suited to and used for stock-raising purposes. There was about 160 acres of pasture land, about 25 acres of timber along the east side, about 45 acres of tillable land, 15 acres of orchard and the remainder was occupied by buildings. The farm was well improved. The farm land was located along the west side of the farm. On it was a two-story modern stucco house, a garage, barn and other improvements. A well was located near the house in the northwest corner of the farm. In the timber and on the northeast part of the farm were two fresh water ponds. Lost Creek which was polluted entered the farm from the north, and at a point about one-half mile east of the west line. Lost Creek was fed by springs. Appellants' oil leases to the north of the farm were first developed in 1928 and 1929. Prior to 1935 the stock used the water from the creek and thrived upon it. In 1935, appellees had thirty head of cows on the pasture. During dry seasons prior to 1935, the creek became substantially dry. In 1935 appellants deepened their oil wells. After their wells were deepened, Lost Creek was never dry and always contained a substantial amount of water. Since the deepening of appellants' oil wells, the water in the creek has been salty and has contained a puckery acid taste. Some salt deposit became visible along the edge of the stream. The cattle watered in the creek, became thin, their hair became rough and they began scouring. Feed troughs previously located on the west side of the place had to be moved to the fresh water ponds in the timber. Appellees were obliged to herd the cattle to keep them from drinking the salt water. The milk cows were kept in the pasture until 1935 when appellees were obliged to remove them owing to the salt water. In 1937 appellees placed twenty head of calves on the pasture land but were obliged to remove them by reason of the salt water. The water continued to be very salty. In January of 1937, an inspection was made of the Shell leases which drained into Lost Creek above the farm of appellees. In May, 1937, an inspection was made of the Amerada lease and again of the Shell leases. Three Shell leases were inspected. From one of these leases, salt water was found running from a tank battery into a branch which drained that lease and from that branch directly into Lost Creek. From three wells on the other two Shell leases, salt water was found to have been piped so as to run directly into Lost Creek, on into draws through which it entered into Lost Creek. In fact, concerning the Shell, there was direct testimony, without objection, that "it was really fixed so the water would run into the creek." On one of the Shell leases a ditch was dug for the salt water to run into the creek. The three Shell leases were operated by the Shell.

In May 1937, as previously stated, an investigation was made of the Amerada lease. That lease is above the Buffington lease of the Shell. A branch of Lost Creek crosses the Amerada lease and empties into Lost Creek on the Buffington lease. On the Amerada lease a salt water pond about 75 feet square was discovered. It was...