H.F. Wilcox Oil & Gas Co. v. Juedeman

• Decision Date: 02 April 1940
• Docket Number: 28073.
• Citation: 101 P.2d 1050,187 Okla. 382,1940 OK 169
• Parties: H. F. WILCOX OIL & GAS CO. et al. v. JUEDEMAN.
• Court: Oklahoma Supreme Court

101 P.2d 1050

187 Okla. 382, 1940 OK 169

H. F. WILCOX OIL & GAS CO. et al. v. JUEDEMAN.

No. 28073.

Supreme Court of Oklahoma

April 2, 1940

Rehearing Denied June 4, 1940.

Syllabus by the Court.

1. An action to recover damages for injury to land caused by an overflow of water containing salt, oil and other oil field refuse from a stream running through the land is not barred by the statute of limitations merely because the water in such stream has been polluted for more than two years before such overflow, where no injury to the adjacent land itself has occurred because of the pollution of such stream.

2. In case of injury to land caused by the overflow of a stream the waters of which are polluted by salt, oil and other oil field refuse from oil or gas wells a cause of action for damages arises at the time it becomes obvious that the land has been permanently injured.

3. If under conditions stated in paragraph 2, hereof, the cause or source of the injury is permanent, that is unabatable, but one action would lie and the measure of damages would be the difference between the fair market value of the tract of land as a whole just prior to the injury and the fair market value thereof immediately after it becomes obvious that the injury has occurred.

4. Where, in an action for damages to real property alleged to have been caused by overflow of water containing salt, oil and other oil field refuse from an unabatable source or cause, and trial is to a jury and the evidence is in conflict on the question of whether, from the same source or cause the land had been appreciably and obviously injured, and its fair market value appreciably decreased more than two years before the action was commenced, the question of whether the action is barred by the two year statute of limitations is one of fact for the jury under proper instructions and it is error for the court to refuse upon request to submit the question to the jury.

5. A plaintiff in error may specifically abandon certain specifications of error, and in presenting argument as to the remaining assignments may group all such remaining assignments going generally to the same question under one general proposition, and need not discuss each assignment separately.

6. A single assignment of error may embrace more than one instruction if the instructions are designated therein by number. And where the assignment goes further and states that "error is charged separately and severally" on account of "each and every one" of the instructions so designated, the assignment will be given the same effect as if each instruction objected to was named in a distinct assignment.

7. The office of a "supplemental" pleading is to bring in additional matters to strengthen the original pleadings and supply allegations of facts which may be necessary to a complete determination of the rights of the parties touching the subject matter in suit. It does not take the place of the original pleading.

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

Action by W. A. Juedeman against the H. F. Wilcox Oil & Gas Company and others to recover damages alleged to have been caused by overflow from creek which had been polluted by salt water oil and other poisonous substances, from defendants' oil wells. From a judgment in favor of plaintiff, the defendants appeal.

Judgment reversed, and cause remanded with directions to grant defendants a new trial.

Horace B. Clay, L. G. Owen, Forrest M. Darrough, Geo. Bowen, J. R Ramsey, B. W. Griffith, W. M. Fleetwood, Jr., A. G. Cochran, W. P. Z. German, Hawley C. Kerr, E. R. Hastings, and W. D. Abbott, all of Tulsa, G. P. Cantrell, of Bartlesville, and J. E. Thrift, of Sapulpa, for plaintiffs in error.

George H. Jennings, of Sapulpa, for defendant in error.

RILEY Justice.

W. A. Juedeman, plaintiff below, commenced this action April 4, 1934, to recover damages in the sum of $15,410, alleged to have been caused by overflow of 134 acres of his land from a creek running through the land in which the water had been polluted by salt water, oil and other poisonous substances allowed to flow from oil and gas wells operated by defendants, Wilcox Oil and Gas Company and fifteen other oil companies and an individual.

Plaintiff acquired the land January 21, 1932. It lies within the valley of Little Deep Fork Creek, which flows through said land. About 70 acres of the land is subject to frequent overflows from the creek. The petition of plaintiff, after alleging the location of oil and gas wells operated by defendants within the watershed of said creek and above plaintiff's land, and that defendants had for two years next preceding the filing of the petition allowed large quantities of oil, salt water, base sediment and other deleterious substances to escape from their wells and flow into said creek and its tributaries and down and across plaintiff's said land; alleged that numerous times during said two years heavy rains fell within the area causing said creek to overflow its banks and the waters thereof contaminated with oil, salt water and to spread out over said land and thoroughly contaminate and impregnate all of said land thereby injuring said land for farming purposes, killing a large number of valuable pecan trees growing on said land and thereby diminishing the market value of said land to the extent of $15,410.

Defendants filed separate answers, and in addition to other defenses, pleaded the statute of limitations, alleging that if any injury had been done to the land in question as a result of the escape of oil, salt water, etc., into said creek, the cause of action therefor accrued more than two years before the commencement of this action, and was barred by the statute of limitations of subdivision 3, Sec. 101, C.O.S.1931, 12 Okl.St.Ann. § 95, subd. 3.

A supplemental joint answer by 16 of the defendant companies set up as an additional defense that plaintiff and his predecessors in title had contributed to the injury, in that they had kept and maintained on said land, for a long time prior to the commencement of this action, a "slush pit" in which was deposited a large quantity of oil, base sediment, and other oil well refuse; that said "slush pit" and its contents is located on higher ground than the pecan groves or trees, and that during rains and overflows, large quantities of such refuse escaped from said slush pit and flowed over the land; that plaintiff also owned, operated, kept and maintained an oil and gas well located on said premises from which he permitted salt water, oil and other oil field refuse to escape and flow over said land and commingle with any polluted water that was alleged to have been allowed to escape from defendant's well and flow into said creek and over plaintiff's land, and that plaintiff had thereby in whole or in part contributed to the loss, damage and injuries, if any, to his said land. Plaintiff replied by general denial.

Trial was had to a jury resulting in a verdict and judgment in favor of plaintiff in the sum of $1500, and defendants appeal.

The petition in error contains fifteen specifications of alleged error. Specifications 5, 7, 8, 9, and 15 go to matters not in any way involving the question of the statute of limitations, and are expressly waived by defendants in their brief.

All other specifications are claimed to involve questions going to the plea of statute of limitations, and are presented under one general proposition.

The parties entered into written stipulation that defendants and each of them, prior to and during the two years next before the commencement of this action, separately owned and operated oil and gas mining leases located as alleged in the petition; that Little Deep Fork Creek is subject to overflow during heavy rains, and at such times the water from the creek covers a portion of plaintiff's land, and:

"3. That during all times for the period of ten years next prior to the date of the filing of plaintiff's petition herein said Little Deep Fork Creek was in a state of pollution as a result of the escape of salt water from operations conducted on said water shed.

4. That salt water escaped from the leaseholds operated by the defendants during the two year period next preceding the said filing of plaintiff's petition and contributed to the pollution in said Little Deep Fork Creek.

5. That the escape of salt water from the leaseholds of said defendants into said stream has been, is and will be a necessary incident to the operations of said leasehold estates and in no wise attributable to actual negligence of said defendants, or either of them, or any negligence other than such as the law may imply from the fact of escape.

6. That as an incident to the operation of leaseholds on said water shed the production of salt water has so saturated the lands upon which operations have been had that said stream will be polluted for an indefinite period independent of the results of continued operations contributing thereto."

It was further stipulated that both parties might introduce such evidence as they might desire as to amount, quantity and quality of salt water that may have escaped and run into said stream during and before the two year period and as to its effect upon plaintiff's premises both before and during the two years next preceding the filing of the petition.

Defendants moved for a directed verdict upon the ground that the facts stipulated, considered in connection with plaintiff's petition, showed on their face that plaintiff was not entitled to recover.

This motion was overruled, and defendants saved exceptions.

Defendants concede that with a single exception, hereinafter noted, the facts in this case are like those in the cases of H. F Wilcox Oil...