Hall v. Cumberland Pipe Line Co.

• Decision Date: 10 February 1922
• Citation: 193 Ky. 728,237 S.W. 405
• Parties: HALL v. CUMBERLAND PIPE LINE CO.
• Court: Kentucky Court of Appeals

237 S.W. 405

193 Ky. 728

HALL v. CUMBERLAND PIPE LINE CO.

Court of Appeals of Kentucky.

February 10, 1922

Appeal from Circuit Court, Estill County.

Action by Thomas Hall against the Cumberland Pipe Line Company, and others. Judgment for the named defendant, and plaintiff appeals. Judgment reversed in so far as it related to oil received after the commencement of the action, and otherwise affirmed.

Hays &amp Hays, of Winchester, for appellant.

J. H Gardner, of Winchester, for appellee.

HURT C.J.

The appellant, Thomas Hall, was the plaintiff below, and in his petition, to which he made Sam Tipton, W. F. McIntosh, Wood Oil Company, and Cumberland Pipe Line Company defendants averred that his grandfather, Sam D. Tipton, died, intestate, the owner of a tract of land, which descended by inheritance to his seven children, one of whom was the mother of the plaintiff, and who thereafter died intestate, leaving the plaintiff as her only heir at law, and he thereby became and was the owner of an undivided one-seventh part of the land, and that during the years 1915, 1916, 1917, and 1918 the defendants unlawfully and wrongfully, and without his knowledge or consent, went upon the land and bored wells therein, and took from same oil to the value of $7,000, and converted it to their own use, and of which he was the owner of an undivided one-seventh part of the value of $1,000, and prayed a judgment against the defendants for the latter sum. Defendant Gaines filed an answer, traversing the averments of the petition. The Wood Oil Company, W. F. McIntosh, and Sam Tipton do not appear to have answered, and no further proceedings in regard to them were prosecuted.

The Cumberland Pipe Line Company answered in six paragraphs. By the first it alleged that it was a corporation with power to sue and be sued, and was a common carrier of crude petroleum, and was equipped with the necessary pipe lines, pump stations, storage tanks, tools, machinery, and other things to conduct and carry on its business as a common carrier.

In the second paragraph it averred a want of sufficient information to form a belief as to whether the plaintiff was an owner of any interest in the land, or that of any interest in the oil taken therefrom.

In the third paragraph it substantially denied that it had entered upon the land, or taken any oil therefrom during the years alleged in the petition, or converted any of it to its use.

By the fourth, fifth, and sixth paragraphs it averred that during the years 1915, 1916, 1917, and 1918 the defendants, Sam Tipton and Wood Oil Company were in the adverse, open, notorious, and exclusive possession of the land, and while in such possession they took oil to an amount not known to defendant, and delivered the oil to it as a common carrier with orders to redeliver it, and that in accordance with such directions it delivered the oil to the persons to whom it was consigned in good faith, and without any notice or knowledge that plaintiff had or made any claim to ownership of any interest in it.

It is further alleged that since it had been served with a summons in this action it had continued to receive oil from the land which was delivered to it by its codefendants, Tipton and Wood Oil Company, and that at the time of its answer it then had in its possession 128 barrels of oil from the land, upon which it had a lien for certain storage and transportation charges and taxes due the federal government. It prayed that it be permitted to receive oil from parties in possession of the oil, and to transport it to the consignees, without liability on its part to any one, except the bailor or consignee, and, if that could not be done, to put the land and wells in the hands of a receiver, with directions to operate the same and transport the oil and for all proper relief. The answer was not made a counterclaim against the claims of the plaintiff, nor a cross-petition against any one.

The plaintiff neither demurred nor replied to the answer, and without objection permitted the action to be submitted upon the motion to adjudge the affirmative allegations of the answer to be true. Upon submission upon the pleadings it was adjudged that the defendant, Cumberland Pipe Line Company, as a common carrier, had not only a right, but that it was its duty, to accept for transportation such oil as was offered to it for that purpose, from any party in possession, and hence was within its rights in accepting all the oil from the land mentioned in the petition, and dismissed the plaintiff's petition. From this judgment the plaintiff has appealed.

(a) The appellee insists that the appellant could not maintain the action alone, since he only claims to be a joint owner of the land and oil, and that he should have joined the other owners as plaintiffs, and if unwilling to become plaintiffs, he should have made them defendants. It does not appear that any of the plaintiffs were joint owners with the plaintiff of the land or oil, or in fact who the other joint owners were. This question is not necessary to be decided upon this appeal, since if there was any defect of parties, and such defect appeared from the petition, if defendant objected to it, he should have demurred specially upon that account, and if the defect did not appear from the petition, he should have presented it by answer, but having failed to either raise the issue by a special demurrer or by answer, under the expressed provisions of the Civil Code, the defect was waived. Civ. Code Prac. § 92, subsec. 4, and Civ. Code Prac. § 118; McCallister v. Savings Bank, 80 Ky. 684; Rudd v. Deposit Bank, 105 Ky. 443, 49 S.W. 207, 971, 20 Ky. Law Rep. 1276; Stephens v. Stephens, 189 Ky. 561, 225 S.W. 364.

The question as to the right of a joint owner of the land to take the oil therefrom is not presented here, since there is no allegation that either one of the codefendants of appellee is a joint owner of the land, or has any interest in it, nor is there any denial in the pleading of such a condition. The appellant, however, insists that he averred that he was an owner of an undivided interest of one-seventh in the land and this allegation was not denied, and that he further alleged that the defendants, including appellee, had unlawfully and wrongfully entered upon the land, bored wells therein, and took away the oil therefrom, and converted it to their own use, and such action made them joint trespassers, and...