Fairfax Oil Co. v. Bolinger
| Decision Date | 03 October 1939 |
| Docket Number | Case Number: 28815 |
| Parties | FAIRFAX OIL CO. v. BOLINGER |
| Court | Oklahoma Supreme Court |
¶0 1. NUISANCE--Right to damages where lawful business so conducted as to constitute private nuisance.
Where the facts show that a lawful business is being conducted in such manner as to constitute a private nuisance causing substantial injury to property, the aggrieved party may recover compensation for the injury sustained.
2. SAME--Owner of property in area zoned for particular industry not presumed to have consented to such industrial operations on adjacent premises estopping him from claiming damages for injuries resulting therefrom.
One who owns real property in an area zoned for a particular industry is not presumed, merely by reason of his ownership, to have given his consent to such legalized industrial operations on adjacent premises so as to estop him from claiming reimbursement for substantial injuries resulting from such operations.
Appeal from Distric Court, Oklahoma County; Clarence Mills, Judge.
Action by Jennie Bolinger against Fairfax Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Dudley, Hyde, Duvall & Dudley, of Oklahoma City, for plaintiff in error.
Billups, Billups & Billups, of Oklahoma City, for defendant in error.
¶1 Defendant below appeals from a judgment rendered on a verdict for damages to plaintiff's real property occasioned by vibrations emanating from defendant's drilling oil and gas well located on adjacent premises.
¶2 The action was prosecuted on the theory that the well had become a private nuisance, causing injury to plaintiff's property for which defendant was answerable in damages (sections 11489, 11501, O. S. 19312 50 Okla. Stat. Ann. §§ 1, 13; Epps v. Ellison, 82 Okla. 224, 200 P. 160); or, if not a nuisance, the well caused damages which are compensable by defendant under section 23, art. 2, of the Constitution, which provides that no private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner.
¶3 Defendant says that the drilling of an oil and gas well is not a nuisance per se (Indian Territory Illuminating Oil Co. v. Larkins, 168 Okla. 69, 31 P.2d 608); that since the well in the instant case, with plaintiff's property, was located in an area zoned for drilling purposes in Oklahoma City, and was properly authorized pursuant to city ordinance, no recovery could be had without allegation and proof of some actionable negligence, or some unusual, unreasonable, or improper use of defendant's property while operations were in progress. Defendant charges that the plaintiff wholly failed to sustain this burden, and that the court erred in overruling its motion for directed verdict.
¶4 In effect, the defendant's argument is to insist upon the common-law doctrine that the owner of any business not a nuisance per se is not liable to other property owners in the particular zone for injuries to their property resulting entirely from the usual and ordinary operation of such business.
¶5 A drilling oil and gas well is not a nuisance per se. Indian Territory, etc., Oil Co. v. Larkins, supra. Defendant's well was drilled under express authority of a valid city ordinance enacted pursuant to statutory sanction. Nothing which is done or maintained under express authority of statute can be a nuisance. Section 11492, O. S. 1931, 50 Okla. St. Ann. § 4; E. I. Dupont, etc., Co. v. Dodson, 49 Okla. 58, 150 P. 1085. Ordinances properly enacted have the same force and effect in this respect as do statutes. Weaver v. Bishop, 174 Okla. 492, 52 P.2d 853.
¶6 In this and many other states the common-law rule does not obtain. Constitutional provisions have intervened to protect a property owner against losses in the nature of real and substantial injury to his property, resulting from the use of adjacent or nearby property by its owner. See E. I. Dupont, etc., Co. v. Dodson, supra; Kenyon v. Edmundson, Adm'r, 80 Okla. 3, 193 P. 739. Though the use be legal, if property of another is substantially damaged as a result thereof, the latter may recover as for a nuisance in fact. St. Louis-S. F. Ry. Co. v. Matthews, 174 Okla. 167, 49 P.2d 752. While a particular use may not be a nuisance per se, it may grow into a nuisance per accidens (McPherson v. First Presbyterian Church, etc., 120 Okla. 40, 248 P. 561); and a legalized use of property becomes a nuisance per accidens if that use substantially damages the property of another. Such is the purpose...
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