Gardenhire v. Sinclair-Prairie Oil Co.
| Decision Date | 04 May 1935 |
| Docket Number | 32254. |
| Citation | 44 P.2d 280,141 Kan. 865 |
| Parties | GARDENHIRE et al. v. SINCLAIR-PRAIRIE OIL CO. et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Riparian landowners' cause of action for damage to stream by discharge of salt water and other deleterious matter from oil wells did not accrue until landowners were injured by discharge, and statute of limitations did not begin to run until that time, notwithstanding they had prior knowledge of defendants' oil well operations.
Prescriptive right could not be acquired to pollute stream and create public nuisance by discharging salt water and other deleterious matters from oil wells into stream.
In action for damage to land caused by pollution of stream by discharge of salt water and other deleterious matters from oil wells, use of words "material and perceptible" in reference to damage to plaintiffs' land as applied to statute of limitations held not error.
Defendants could not complain because court refused to give requested instruction, where such instruction was contradictory of another instruction given at defendants' request.
Defendants could not complain of instruction given at their request.
In riparian landowners' action for damages to land caused by discharge of salt water and other deleterious matters from oil wells, evidence held not to require instruction on claim that well on plaintiffs' land contributed to pollution.
In riparian landowners' action for damages caused by discharge of salt water and other deleterious matters from oil wells, submitting special interrogatories as to condition of water in creek and plaintiffs' well before they were polluted, time of pollution, and whether pollution continued after institution of action, held not error.
1. The defendants drilled wells for gas and oil over a mile from the plaintiffs' residence and dairy farm, through which ran a stream of clear pure water. They made some provision far taking care of the salt water and slush. The plaintiffs knew of the wells, saw derricks, and knew that there was some discharge of salt water and other deleterious matter from the wells which might or might not pass through the intervening territory and reach the plaintiffs. After damage resulted they brought an action for permanent injury to their land and other property. Testimony examined, and it is found that from deepening of wells the discharge became noticeably larger and that in March, 1931, it became manifest that their property would be injured by the discharge. Held, that the action did not accrue to plaintiffs until they were injured by the discharge and that the statute of limitations did not begin to run until that time.
2. As the pollution of the stream was wrongful and created a public nuisance, no prescriptive right could be acquired.
3. The words "material and perceptible" in the damage to plaintiffs' land mentioned in an instruction are not erroneous.
4. An instruction requested by defendants when given forecloses them to complain of it.
5. Instructions upon questions not in issue are not required.
6. Interrogatories submitted and answered are held not to be erroneous, and the failure to submit additional special questions are held to be without error.
7. the refusal of a motion for a new trial of one of the defendants is found not to be a ground for a new trial.
Appeal from District Court, Cowley County; O. P. Fuller, Judge.
Action by Clyde Gardenhire and another against the Sinclair-Prairie Oil Company and others. Judgment for plaintiffs, and defendants appeal.
Charles W. Roberts and James A. McDermott, both of Winfield, and Albert Faulconer, of Arkansas City, for appellants.
W. L Cunningham, D. Arthur Walker, Fred G. Leach, and Wom. E Cunningham, all of Arkansas City, for appellees.
This action was brought by Clyde Gardenhire and Belinda Gardenhire, against several oil companies named as defendants, to recover damages for salt water and other deleterious matter which was discharged from oil wells in the vicinity of their land. Plaintiffs' land consists of a tract of land adjacent to the city of Winfield, a part of which is included in the city limits. They purchased the farm in 1917, and have since used it as a dairy farm. It is watered by Timber creek, a clear stream of water which ran through the farm, cutting off 5 acres on the east side of the stream and leaving 38 acres on the north and west of it. Some of the wells were drilled a mile or a mile and a half away, and from these wells, it is alleged, salt water was allowed to escape and pollute the water of the stream and destroy considerable property. In February, 1933, the plaintiffs brought an action for damages against the several defendants to recover damages. They alleged that the salt water and oil refuse had been allowed to escape and had poisoned wells which they had used for house and other purposes; that their animals, hogs, cattle, and horses, sickened, and some of them died from using the water for the previous two years; that it had permeated the soil, which rendered it unproductive for two years, and they asked for permanent damages of $12,500 by reason of damage to the farm, and, having been done willfully and unlawfully, they asked for $5,000 as exemplary damages.
Special questions were submitted by the court and answered as follows:
The principal objection to the judgment is that plaintiffs had been damaged more than two years before the bringing of the action, and were barred by the statute of limitations.
Wells were drilled in 1926 to gas found at a depth of about 2,900 feet, and little water was discharged from these, but in 1931 the wells were deepened to a stratum in which oil was found, and with the oil there was a plentiful supply of water, many ponds were made, but it overflowed them. Soon the surface of the water showed a marked characteristic of oil and other refuse of a poisonous nature. Up to that time the family had fished and caught lots of catfish, red horse, bass, and black perch, but in the fall of 1931 few could be found there, except an occasional carp, which can live in water that has been polluted to some extent.
Plaintiffs testified that they were not injured or damaged by the water until 1932. One of plaintiffs and a member of his family testified as to his having undertaken to water peas in his garden, and having discovered that they turned brown and died. It continued to affect and damage when defendants increased the number of wells; six of them at least were brought in in 1931. Defendants contend that, when they erected the derricks and were producing oil, it was all in sight of the plaintiffs, and they could not help but know of it. Witnesses said that the gas wells were much shallower than the oil wells, and, after they had been deepened, there was a marked change in the production of water and refuse. There was then an unlawful distribution of salt water and deleterious matter, but it did not give a cause of action to plaintiffs until they had been injured. The defendant had the right to drill for oil, and, if they did not bother or damage plaintiffs until 1931, the water and oil did not reach the premises of plaintiffs to warrant him in bringing an action and, if they had brought one on conjecture or speculation prior to that time, they might have been challenged for anticipation of injury and be subject to the rule laid down in Kansas by Justice Brewer, in which he said: ...
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...of an aquifer is a permanent injury, Dk. No. 337 at 155. The next year, contrariety appeared in the case of Gardenhire v. Sinclair-Prairie Oil Co., 141 Kan. 865, 44 P.2d 280 (1935). The facts were somewhat similar to those in Lackey; 1926 oil wells that had previously caused some pollution ......
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