Harper-Turner Oil Co. v. Bridge

• Decision Date: 28 May 1957
• Docket Number: HARPER-TURNER,No. 37315,37315
• Citation: 1957 OK 124,311 P.2d 947
• Parties: OIL COMPANY, a corporation, Plaintiff in Error, v. Grace BRIDGE and H. A. Bridge, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 947

311 P.2d 947

1957 OK 124

HARPER-TURNER OIL COMPANY, a corporation, Plaintiff in Error, v. Grace BRIDGE and H. A. Bridge, Defendants in Error.

No. 37315.

Supreme Court of Oklahoma.

May 28, 1957.

Syllabus by the Court.

1. The period of limitations does not commence to run against a cause of action for permanent damage to realty until the damage is apparent and it becomes obvious that such damage is of a permanent character.

2. Record examined and held: that evidence, while largely circumstantial, established sufficient causal connection between negligence of defendant and injury suffered by plaintiffs to require submission of cause to jury and to support jury verdict thereon.

3. After both parties have introduced their evidence in chief and rested, the only evidence that either party may thereafter introduce as a matter of right is rebutting evidence, but the court may, in its discretion and in the furtherance of justice, permit the introduction of further evidence in chief, and where it does so and the further evidence so admitted is otherwise relevant, material and competent, no reversible error is committed.

4. One cannot be held to be a joint tort-feasor unless there is some evidence to connect him with the cause of the injury complained of.

5. To hold defendants jointly liable as joint tort-feasors there must be but a single injury, and the injury must be in some way due to their joint work, although it is not necessary that they be acting together or in concert, if their concurring wrongful acts occasion the injury.

Appeal from the District Court of Lincoln County; J. Knox Byrum, Judge.

Action for damages to realty in nature of destruction of water well in which judgment was rendered for plaintiffs as against one defendant and in favor of other defendant. Defendant against whom judgment was rendered appeals therefrom, and plaintiffs appeal from judgment in favor of other defendant. Affirmed.

Robinson, Shipp, Robertson & Barnes, by T. Murray Robinson, Wm. L. Robertson, Oklahoma City, for plaintiff in error.

Brown & Verity, by Geo. L. Verity, Oklahoma City, for T. E. Atkins and L. D. Morett d/b/a Atmar Drilling Co.

P. D. Erwin, Chandler, for Grace Bridge and H. A. Bridge.

WILLIAMS, Justice.

This action was brought by Grace Bridge and H. A. Bridge, hereinafter referred to as plaintiffs, against Harper-Turner Oil Company, a corporation, and Atmar Drilling Company, hereinafter referred to as defendants, to recover damages for alleged injury or destruction of a water well. On July 1, 1954, plaintiffs filed their petition herein alleging that the defendant, Harper-Turner, heretofore on another tract of land, drilled a dry hole which was within 200 feet of plaintiffs' home, without plaintiffs' consent; that plaintiffs had a water well 225 feet deep, cased and equipped with an electric pump; that Harper-Turner drilled to a depth of approximately 4,800 feet but set only a 90 foot string of surface casing; that the well was not properly plugged; that, although in the drilling of said well formations bearing gas, oil and salt water were encountered, such formations were not sealed off so as to prevent the same from escaping, percolating and seeping into the water sand formations of the water well of plaintiffs; that salt water, petroleum products and other deleterious substances percolated and seeped into the said water well of the plaintiffs and greatly injured and damaged the same, but that the permanent injury did not become apparent until about August 1, 1952; that during the months of April, May and June, 1954, the defendant Atmar reworked this dry hole, but did not run any additional surface casing, and completed the well as a producing gas well; that during the reworking job, gas, mud, salt water, and other petroleum and deleterious substances broke into plaintiffs' water well and completed the destruction thereof.

Defendant Harper-Turner answered admitting its corporate existence; admitting that it drilled a well for oil and gas as alleged, commencing the same on or about November 11, 1951, and abandoning the same on or about May 10, 1952; alleging that it set sufficient surface pipe to protect plaintiffs and cemented with 100 sacks of cement; alleging that on abandonment it plugged the well with cement on top of the mud; that in drilling and plugging the well, it complied with all rules and regulations of the Corporation Commission; denying that it improperly drilled or plugged the well; denying that its operations contributed to any damages of plaintiffs, and alleging that the results of its operations were known to plaintiffs more than 2 years prior to the institution of this action, and that plaintiffs' action was therefore barred by the statute of limitations.

Defendant Atmar answered admitting that it reworked the well, but denying any unlawful, wrongful or negligent method of operation; alleging that at the time of the re-working job plaintiffs had already abandoned the water well as unfit for drinking or any household purposes, and that any damage done could not have been done by defendant Atmar; alleging that, without admitting liability, Atmar had rewired the water well pump motor, had paid plaintiffs' son to haul water, and had drilled another water well 225 feet deep for the plaintiffs, which plaintiffs had refused to allow Atmar to case and complete.

The case was tried to a jury which returned a verdict in favor of plaintiffs and against defendant Harper-Turner in the amount of $2,500 and in favor of the defendant, Atmar Drilling Company. Judgment was rendered upon the verdict as returned by the jury, and defendant Harper-Turner appeals therefrom, while plaintiffs appeal from the verdict and judgment in favor of defendant Atmar.

As its first proposition, defendant Harper-Turner contends that plaintiffs' cause of action is barred by the Statute of Limitations set forth in 12 O.S.1951 § 95, subd. 3. Such statute provides that an action for trespassing on real property can only be brought within two years after the cause of action shall have accrued. It is well settled that the cited statute is applicable to actions of this type. However, it is equally well settled that the two year period of limitations does not commence to run against a cause of action for permanent damage to real property until the damage is apparent and it becomes obvious that such damage is of a permanent character. Peppers Refining Co. v. Spivey, Okl., 285 P.2d 228; H. F. Wilcox Oil & Gas Co. v. Juedeman, 187 Okl. 382, 101 P.2d 1050; Magnolia Petroleum Co. v. Norvell, Okl., 240 P.2d 80. Furthermore, the burden is upon the defendant to prove that plaintiffs' action is barred by the Statute of Limitations. Pepper Refining Co. v. Spivey, supra; Shell Oil Co., Inc., v. Haunchild, 203 Okl. 456, 223 P.2d 333. Plaintiffs alleged in their petition that the permanent nature of the damage to their well had not become reasonably apparent to them until around the 1st of August, 1952. Plaintiffs' evidence reasonably tended to establish that they first noticed that the water well was not as good as it had been within some two or three months after Harper-Turner had ceased its drilling operations; that the taste of the water produced from said well became such that they were forced to cease to use it for drinking and cooking purposes; that in the spring of 1952 they used the water from the well to water the plants and grass ground their home and that the water killed the plants and grass; that they pumped the water well extensively during the spring and summer of 1952, in an effort to clear up the pollution therein; that the water well would improve temporarily, but then would become worse; that they continued pumping the well on through the summer and into the fall of 1952 in the hope that they could clear out the pollution therein and restore the source of good water that they had previously had in said well. Their efforts in this regard, however, were without success.

The trial court instructed the jury, in submitting the cause to it, that one of the defenses of Harper-Turner in the case was that plaintiffs' cause of action was barred by the statute of limitations and that in a...