Greis v. Harjo

• Decision Date: 03 October 1939
• Docket Number: Case Number: 29845
• Citation: 1939 OK 353,185 Okla. 474,94 P.2d 539
• Parties: GREIS, Trustee v. HARJO
• Court: Oklahoma Supreme Court

1939 OK 353

94 P.2d 539

185 Okla. 474

GREIS, Trustee v. HARJO

Case Number: 29845

Supreme Court of Oklahoma

Decided: October 3, 1939

Syllabus

¶0 1. DAMAGES--Measure of Damages Where Damage to Land Is Permanent.

The measure of damage for the permanent injury of real property is the difference between the fair market value of the real property immediately prior to the injury and the fair market value thereof immediately after such injury.

2. SAME--Insufficiency of Evidence to Submit to Jury Question of Amount of Damages Sustained.

Before the question of the amount of damages alleged to have been sustained by the injury to real estate may be submitted to the jury there must be some evidence tending to show a difference between the fair market value just before and just after the injury, and where plaintiff relies on a showing of the destruction of trees growmg upon the land, and there is no evidence as to the number of trees destroyed, there is no evidence upon which to base the amount of damages.

Appeal from District Court, Okfuskee County; Arthur Cochran, Judge.

Action by Israel Harjo against H. N. Greis as Trustee for Deep Rock Oil Corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

W. F. Semple, H. F. Aby, H. L. Fitzgerald, Jr., and Phillips & Long, for plaintiff in error.

Harry Stephenson and Clem H. Stephenson, for defendant in error.

RILEY, J.

¶1 This is an appeal from a judgment in favor of defendant in error in an action for damages to real property alleged to have been caused by the pollution of a stream running through the land and casting salt water thereon from an oil or gas well.

¶2 The parties will be referred to as plaintiff and defendant, as in the trial court.

¶3 Plaintiff's amended petition upon which the cause was tried alleged:

"That the salt water and oil held refuse from the said oil and gas wells has permanently damaged and injured ten (10) acres of plaintiff's land and has caused the same to become infertile, unproductive and unfit for any agricultural use. That the said salt water and refuse has killed and destroyed approximately seventy-five (75) bearing pecan trees upon the plaintiff's land and has killed and ruined all other growing timber along the bank of the creek which flows through the plaintiff's land. That the said refuse and salt water has ruined and rendered unfit for use all of the water for domestic and stock use upon said premises, making it necessary for the occupants of said farm to haul water. That the value of plaintiff's farm--as a result of the said pollution, damage to the land, destruction of the pecan trees and timber, and damage to the water upon said farm-been reduced in the sum of $2,950, for which sum the plaintiff is entitled to judgment against the defendants, both jointly and severally."

¶4 It was stipulated at the trial that H. N. Greis was appointed trustee for the Deep Rock Oil Corporation on June 19, 1934.

¶5 This action was commenced July 17, 1937. Trial was had March 4, 1938. Evidence was restricted to injuries alleged to have occurred after June 19, 1934, upon the theory that Greis, as trustee, would not be answerable for wrongful acts, if any, of the Deep Rock Oil Corporation committed prior to said date.

¶6 Trial was had to a jury, resulting in a verdict and judgment for plaintiff in the sum of $325.

¶7 Defendant contends that there was no evidence whatever upon which to base the instruction given by the trial court on the measure of damages.

¶8 Instruction No. 7 told the jury:

"You are instructed that it is the contention of plaintiff in this case that his land has been permanently damaged in that growing trees, orchards and vegetation have been killed by the wrongful act of the defendants in permitting oil and salt water to flow over the lands of the plaintiff; and if you find from a fair preponderance of the evidence in this case that The allegations of the plaintiff's petition are true, then the measure of damages for which the plaintiff could recover judgment would be the difference in the fair market value of the lands immediately before the permanent injuries to the same, and the fair market value of the land immediately thereafter. And in no event could you reI urn a verdict for a sum greater than the market value of the land at the time same was permanently injured."

¶9 Again, in No. 11, the court instructed the jury:

"You are instructed that in the event you find for the plaintiff, you will in your verdict assess the amount of his damages, if any, and the measure of his damages, if any you find from the evidence, will be the difference, if any, in the fair and reasonable market value of plaintiff's said lands immediately prior to the injuries thereto and their fair and reasonable market value immediately after said injuries thereto, in no event, however, to exceed the total sum sued for on account thereof, to wit: $2,950."

¶10 There was no evidence whatever placing a value upon ...