Fisher v. General Petroleum Corp.

• Decision Date: 11 March 1954
• Citation: 267 P.2d 841,123 Cal.App.2d 770
• Court: California Court of Appeals Court of Appeals
• Parties: FISHER v. GENERAL PETROLEUM CORP. et al. Civ. 19653.

Page 841

267 P.2d 841

123 Cal.App.2d 770

FISHER v. GENERAL PETROLEUM CORP. et al.

Civ. 19653.

District Court of Appeal, Second District, Division 2, California.

March 11, 1954.

Rehearing Denied March 30, 1954.

Hearing Denied May 6, 1954.

Reynolds, Painter & Cherniss, Howard Painter, Los Angeles, Richard C. Heaton, Ventura, D. W. Woods and J. M. Jessen, Los Angeles, by Louis Miller, Los Angeles, for appellants.

M. Arthur Waite and James C. Hollingsworth, Ventura, for respondent.

McCOMB, Justice.

From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for the wrongful death of plaintiff's husband, defendants appeal.

Viewing the evidence as we must in the light most favorable to plaintiff (respondent) the essential facts are these:

On December 26, 1950, defendant General Petroleum Corporation entered into a writing with Southern California Gas Company reading in part as follows:

'Grantor, for and in consideration of the full and prompt performance of the things to be performed by Grantee as hereinafter set out and contained, hereby grants to Grantee, subject to termination as hereinafter provided and under the terms, conditions and provisions hereinafter contained, a right of way and easement to lay, construct, maintain, operate, repair, renew, from time to time change the size of, and remove a pipe line for the transportation of oil, petroleum, gas, gasoline, water or other substances in, under, along and across that certain real property situate in the County of Ventura, State of California, and described as follows, to-wit: (description of property).

'Said pipe line shall be installed in the location shown in red color on map number P-14055, dated November 17, 1950, attached hereto and made a part hereof.

'Grantee shall not interfere with or obstruct the use of said premises by Grantor, or injure or interfere with any person or property on or about said premises.

'Grantee, in the exercise of the rights granted to it hereunder, shall not do or permit to be done any welding or operations involving sparks or flame within a distance of 300 feet from any oil or gas well, or oil, gas or gasoline container, or place of discharge to atmosphere of oil, gas or gasoline, whether located on the premises or on adjacent lands, without prior consent of Grantor, and then only subject to and in accordance with the provisions hereof and such other conditions as may be expressed in said consent.

'Grantee shall bury its pipe line so that it will pass beneath previously laid pipe lines which it may cross, and so that it will be at all points at least eighteen (18) inches below the surface of the ground, and shall promptly and properly back-fill excavations made by or for Grantee on the premises.

'Whenever, in the opinion of Grantor, said pipe line interferes with Grantor's use of or operations upon the premises, Grantee shall, at its own expense and risk, within sixty (60) days after written request therefor by Grantor, lower or relocate and reconstruct said pipe line upon and across said premises to the depth or along the route specified by Grantor in such request, and shall restore said premises as nearly as possible to the same state and condition they were in prior to the lowering or prior to the reconstructing of said pipe line, as the case may be.

'Grantee and its employees and agents, at any and all times when necessary, shall have free access to the said pipe line, over such reasonable route as Grantor may designate or approve, for the purpose of exercising the rights hereby granted.

'The grant of right of way is personal to Grantee and shall not be assigned by Grantee, in whole or in part, without the written consent of Grantor first being had; provided, however, no consent shall be required in event Grantee assigns this agreement to a wholly owned subsidiary having assets in excess of One Million Dollars ($1,000,000). No written consent by Grantor hereunder shall be deemed a waiver by Grantor of any of the provisions hereof, except to the extent of such consent.

'It is further understood and agreed that this agreement and the rights and privileges herein given Grantee shall terminate in the event that Grantee shall fail, for a period of one (1) year, to maintain and operate said pipe line.

'This agreement and all interest of Grantee hereunder, at the option of Grantor, shall forthwith terminate upon breach by Grantee of any of the terms or conditions hereof and the failure of Grantee to remedy the same within thirty (30) days after written notice from Grantor so to do.

'In the event of the termination of this grant of right of way Grantee shall thereupon, at its own expense and risk, remove all pipe and any other property placed by or for Grantee upon said land, and restore said premises as nearly as possible to the same state and condition they were in prior to the construction of said pipe line, but, if it should fail so to do within sixty (60) days after such termination, Grantor may do so, at the risk of Grantee, and all cost and expense of such removal and the restoration of said premises as aforesaid, together with interest thereon at the rate of ten per cent per annum, shall be paid by Grantee upon demand.

'Upon the termination of the rights hereby granted, Grantee shall execute and deliver to Grantor, within thirty (30) days after service of a written demand therefor, a good and sufficient quitclaim deed to the rights hereby granted. Should Grantee fail or refuse to deliver to Grantor a quitclaim deed, as aforesaid, a written notice by Grantor reciting the failure or refusal of Grantee to execute and deliver said quitclaim deed, as herein provided, and terminating said grant shall, after ten (10) days from the date of recordation of said notice, be conclusive evidence against Grantee and all persons claiming under Grantee of the termination of said grant.'

The privileges granted to Southern California Gas Company under the foregoing document were without consideration to defendant General Petroleum Corporation.

On the 12th of March, 1951, there existed on the General Petroleum property referred to in the above document, 65 subsurface pipe lines and said defendant owned and operated a well known as Barnard 29. This well was located in a general northerly direction from the right of way granted by General Petroleum to Southern California Gas Company for the laying and construction of a 20-inch gas line. The line running from Barnard Well No. 29 was three and one-half inches outside diameter and carried oil and casing head gas under pressure. This line ran in a southerly direction and was laid at a depth of 18 inches below the surface of the ground and crossed the granted right of way at a depth of 18 inches below the surface to a point approximately 32 inches south of the center line of the 20-inch line or ditch on the right of way, the right of way ditch being approximately 30 inches in width at which point the line came up approximately 12 inches and proceeded easterly, about 6 inches below the surface of the ground and traveled in an easterly direction which was parallel to the right of way. At the point where it made its right angle turn there was a 'T' on top of which was installed a bull plug. The top of the bull plug was approximately two to four inches below the surface of the ground. This bull plug was approximately 17 inches south of the south wall of the excavated trench in which the 20-inch gas line was to be installed, and was owned and placed in position by General Petroleum in 1946, and had been there continuously since its installation. The line to which the bull plug was attached was carrying 50 pounds of pressure of oil and gas on the 12th day of March, the date of the accident hereinafter mentioned.

Following the execution of the conveyance of the right of way by General Petroleum to Southern California Gas Company on December 26, 1950, the Southern California Gas Company employed Ventura Pipeline Construction Company as an independent contractor to excavate and lay a 20-inch pipe line as a gas line. Earl M. Fisher was employed by Ventura Pipeline Construction Company as a bulldozer and portable derrick operator. The trench in which the 20-inch line was to be laid was excavated by Ventura Pipeline. Mr. Fisher had been working on the job from its start up to the time of the accident resulting in his death.

In excavating the trench it was necessary to uncover the various lines which crossed it in order to expose them and the 20-inch gas line was installed so as not to interfere with any of the lines on General Petroleum property. The 20-inch gas line had been installed under the particular three and one-half inch line crossing the trench or excavation at a depth of 18 inches below the surface of the ground. Following the laying and installation of the line the dirt which had been piled up parallel to the trench had to be pushed back in the excavation by the process known as back-filling. This loose dirt had been piled on top of the place where the bull plug was located.

Mr. Fisher, while operating his bulldozer in what is known as back-filling operations, pushing the loose dirt back into the excavation, came in contract with the bull plug with the blade of his bulldozer, breaking it, and releasing oil and gas under pressure. The oil and gas thus released was caused to spray over the bulldozer and in a matter of seconds the bulldozer was enveloped in a mass of flames. Mr. Fisher's clothing was ignited and he suffered severe burns as a result of which he died two days later.

Defendants contend:

First: That the instrument of December 26, 1950, under which Southern California Gas Company entered upon the land of General Petroleum Corporation, created a mere license in the former to lay pipes on the General Petroleum Corporation's land subject to the conditions set forth in the documents.

This proposition is tenable. The...