Geochemical Surveys v. Dietz

• Decision Date: 26 October 1960
• Docket Number: No. 10794,10794
• Citation: 340 S.W.2d 114
• Parties: GEOCHEMICAL SURVEYS et al., Appellants, v. Effie H. DIETZ et al., Appellees.
• Court: Texas Court of Appeals

Page 114

340 S.W.2d 114

GEOCHEMICAL SURVEYS et al., Appellants, v. Effie H. DIETZ et al., Appellees.

No. 10794.

Court of Civil Appeals of Texas, Austin.

Oct. 26, 1960.

Rehearing Denied Nov. 16, 1960.

Rutledge & Rutledge, Abilene, for appellants.

Grindstaff & Grindstaff, Ballinger, Hardeman, Smith & Foy, San Angelo, for appellees.

HUGHES, Justice.

Mrs. Effie H. Dietz, for herself and as guardian for her minor daughter, Sidney Ophelia Dietz, and Geral Wayland Dietz, appellees, owners of a one hundred and fifty acre farm in Runnels County, sued Geochemical Surveys, a partnership, to recover permanent damages to their farm allegedly caused by its negligent disposal of salt water into open pits on the Dietz and adjoining lands which seeped and percolated through underground porous formation into the Dietz fresh water well which it polluted and destroyed. This salt water was produced by Geochemical in the development of the area for oil and gas purposes under separate leases held by it from appellees and leases covering the G. M. Wood and M. E. Morrision tracts.

Trial to a jury resulted in verdict and judgment for appellees.

Appellants' first contention is that recovery was barred by the two-years statute of limitations. Art. 5526, Vernon's Ann.Civ.St. We overrule this contention.

This suit was originally filed by Effie Dietz alone on April 17, 1958. In it the only defendant was described simply as Geochemical Survey, a 'company.'

A First Amended Original Petition was filed January 27, 1959, in which appellees were plaintiffs and in which defendants were stated to be 'Geochemical Surveys, a partnership composed of W. R. Ransome, C. V. A. Pittman and E. C. Reagor.'

By trial amendment filed September 16, 1959, Eugene McDermott and E. E. Rosaire were named as members of the partnership. They were not served with process and did not appear and no judgment was rendered against them. Judgment was rendered against the partnership and against the three other partners who were served and who answered.

From appellants' production Superintendent, Mr. H. C. Wilson, it was established that an oil well drilled by them on the Dietz land began producing salt water in March, 1956. This salt water was run into a nearby earthen pit dug by appellants on the Dietz land. A total of $15,000 to 18,000 barrels of salt water was deposited in this pit prior to August, 1957, when use of the pit for this purpose was discontinued. This pit was about 1,000 feet from the Dietz water well.

An earthen pit on the adjoining Morrison tract was first used by appellants for disposal of salt water in 1952. Such use was discontinued in August, 1957. During such time 14,000 barrels of salt water were placed in the pit. This pit was about 3,000 feet from the Dietz water well.

An earthen pit on the adjoining Morrison tract was used by appellants for disposal of salt water from about January, 1954 to August, 1957, during which time about 12,000 barrels of salt water were put in the pit. This pit was about 2,500 feet from the Dietz water well.

Mr. Chris Gard, a civil engineer and an expert on ground water hydraulics, testified that ground water movement was very slow and that 'it might move a half a foot a day, or might move more than that or less than that.'

Appellee, Mrs. Dietz, testified that she first learned that the water in her well was polluted in January, 1958.

The Dietz farm had been unoccupied since June of 1956, although in the fall of that year cotton pickers used the house on the farm and the water from its well.

The only issues submitted to the jury bearing on the defense of limitations were issues inquiring when, in the exercise of ordinary care, appellees could have discovered the presence of salt water in their water well and when such discovery was actually made. The answer to both inquiries was January, 1958.

Neither of these issues was objected to by appellants and they did not request the submission of any special issues.

Relying, principally, upon the cases of Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, and Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336, 337, appellants take the position that appellees' cause of action, if any, accrued when the salt water was deposited in the earthen tanks. We disagree.

The following is taken from the Tennessee case:

"Where there is a direct invasion of one's property of a permanent character, and the original invasion and its continuance are necessarily injurious, the damage is original, and may be at once fully compensated * * *. In such case the statute begins to run from the date of the invasion * * *.' 28 Tex.Jur. 149, Limitation of Actions, Section 66.

'The early case of Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37, is decisive of the prime question here involved. The question is: When did respondent's cause of action accrue? After stating the facts, the Court said: 'This was an act wrongful towards the owner of the property, for which an action might have been maintained as soon as the tort was committed. When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury,--by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff's right,--then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar."

The acts of appellants in depositing salt water in the earthen tanks were lawful acts. They did not constitute an invasion of appellees' property, were not necessarily injurious to it, and they, of themselves, gave appellees no cause of action. The injury sustained by appellees was the pollution of their well. Prior to this injury appellees had no cause of action.

Directly in point are the cases of Beck v. American Rio Grande Land & Irrigation Co., Tex.Civ.App., San Antonio, 39 S.W.2d 640, writ ref. and Gulf Oil Corp. v. Alexander, Tex.Civ.App., Amarillo, 291 S.W.2d 792, 793.

In Beck suit was brought to recover permanent damages to land caused by seepage from canals and barrow pits on adjacent property. Answering the contention that the suit was barred by the two-year statute of limitations because the canals and pits had been used for more than two years before the suit was brought the Court said : '* * * in such cases limitation runs from the time the injury complained of becomes apparent, or should have been discovered by due diligence on the part of the party affected by it.'

In Gulf Oil Corp. v. Alexander, suit was brought by a landowner to recover damages for salt water pollution of the fresh water underlying his property by seepage of salt water from a salt-water disposal pit constructed and used by Gulf in oil and gas operations on its leasehold on adjoining land. The jury there found that salt water from Gulf's disposal pit invaded waterbearing formations underlying a part of plaintiff's land more than two years before suit was brought. In overruling the plea of limitations the Court said :

'The two year statute of limitation is applicable to appellee's cause of action for pollution of the subsurface strata of water furnishing his irrigation well. Such statute of limitation began to run on March 1, 1953, the date on which the uncontroverted evidence reveals that appellee discovered that the water as pumped for irrigation was polluted by salt water. The rule as applied here as to pollution of appellee's subsurface strata of water is that limitation ran from the time the injury complained of became apparent or should have been discovered by due diligence on the part of the appellee. * * * Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 2d 336, and like authorities cited by appellant, are not applicable to an issue as to subsurface water pollution by salt water intrusion.'

See also Wichita County Water Improvement Dist. v. Pearce, 59 S.W.2d 183; McClellan v. Krebs, 183 S.W.2d 758, both by the Fort Worth Court of Civil Appeals, Kolberg v. Hidalgo County Water Imp. Dist., Tex.Civ.App., San Antonio, 110 S.W. 2d 961, and Houston Natural Gas Corp. v. Pearce, Tex.Civ.App., Houston, 311 S.W.2d 899, writ ref. N.R.E.

In view of these authorities and the findings of the jury as to the discovery of injury by appellees and their diligence in this respect, we are of the opinion that the plea of limitation was not well founded.

Appellants group points 8, 9, 10 and 16 for briefing. They are to the effect that there is no evidence of negligence or of proximate cause to support relevant jury findings or the judgment. We disagree.

The locations and amounts of salt water deposited in pits used by appellants have been stated. In terms of tonnage of salt the evidence is that from 450 to 540 tons of salt were put into the Dietz pits, 420 tons of salt in the Wood pit, and 360 tons of salt in the Morrision pit.

These pits were dug in a limestone bed which underlies the Dietz, Morrison and Wood tracts. This limestone was relatively porous.

Mr. Chris Gard, a civil engineer and hydrologist, testified that the continuous bed of limestone underneath this area sloped, generally, from the southeast to the northwest and 'from the salt water pits toward Mrs. Dietz water well,' and that water could move through any continuous formation provided it was sufficiently porous.

Mr. Gard also determined the slope of water table underlying this area and found that it followed the slope of the surface.

Mr. Gard testified:

'Q. In particular, Mr. Gard, does the water table slope in a direction that would take underground water...