Higgins Oil & Fuel Co. v. Guaranty Oil Co., Limited

• Decision Date: 05 May 1919
• Docket Number: 21837
• Citation: 82 So. 206,145 La. 233
• Parties: HIGGINS OIL & FUEL CO. v. GUARANTY OIL CO., Limited
• Court: Louisiana Supreme Court

82 So. 206

145 La. 233

HIGGINS OIL & FUEL CO. v. GUARANTY OIL CO., Limited

No. 21837

Supreme Court of Louisiana

May 5, 1919

Rehearing Denied June 2, 1919

N. C Blanchard and Blanchard, Goldstein & Walker, all of Shreveport, for appellant.

Wilkinson & Lewis, of Shreveport, for appellee.

MONROE C. J., dissents.

OPINION

PROVOSTY, J.

The plaintiff holds an oil lease of a tract of land adjoining another tract of which the defendant holds a lease of the same kind. The plaintiff sunk a well on its tract, and was drawing oil from it by means of a pump at the rate of some 124 barrels a day, when defendant sunk a well on its tract approximately 400 feet from plaintiff's well. This well of defendant proved a nonproducer, and was abandoned. Through some underground communication it lets air into the radius affected by plaintiff's pump, thereby reducing the suction power of the pump, and as a consequence reducing markedly its production. By closing this dry well, which may be done with no trouble or expense by simply putting back the plug that has been taken out, the capacity of plaintiff's pump is at once restored. Defendant refuses to close it; and plaintiff brings this suit to compel defendant to do so, and also to recover the damages suffered up to now, and continuingly being suffered, as the result of the reduced production of the pump. The petition of plaintiff alleges these facts, and that, while plaintiff's pump is thus being prevented from working to its full capacity, the pumps which are being used by other parties on all the adjoining tracts of land are depleting the reservoir of oil which lies under the lands of that locality. And the petitioner further alleges as follows:

'That by permitting the said abandoned well to remain open does not in any way profit or aid the said Guaranty Oil Company, its lessee, the Nash Oil & Gas Company, in getting production from the producing well, Guaranty No. 2, and that the only effect of having the said well open is to injure petitioner without bringing about any advantage whatever to the said Guaranty Oil Company or the Nash Oil & Gas Company.'

Plaintiff does not allege that the underlying oil cannot be brought to the surface otherwise than by pumping, but that allegation is impliedly contained in the allegation which is made that every operator in that oil field is using a pump.

An exception of no cause of action was sustained below, and plaintiff has appealed.

The articles of our Code bearing upon the matter are the following:

'Art. 491. Perfect ownership gives the right to use, to enjoy and to dispose of one's property in the most unlimited manner, provided it is not used in any way prohibited by laws or ordinances.'

'Art. 505. The ownership of the soil carries with it the ownership of all that is directly above and under it.

'The owner may make upon it all the plantations, and erect all the buildings which he thinks proper, under the exceptions established in the title: Of Servitudes.

'He may construct below the soil all manner of works, digging as deep as he deems convenient, and draw from them all the benefits which may accrue, under the modifications as may result from the laws and regulations concerning mines and the laws and regulations of the police.'

'Art. 666. The law imposes upon the proprietors various obligations towards one another, independent of all agreements; and those are the obligations which are prescribed in the following articles.

'Art. 667. Although a proprietor may do with his estate whatever he please, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.

'Art. 668. Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.'

'Art. 2315. Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repar it.'

This last article can be but of little assistance in the case, for it applies only to person who is at fault, or, in other words, who has committed, or is committing, a wrong; and the question in the case is whether the defendant is 'at fault.'

The provision of article 667, that the owner may not make any work on his property 'which may be the cause of any damage to' his neighbor is found under the title 'Of Servitudes,' and hence apparently is one of the exceptions to which article 505 refers, and hence would seem to be a limitation upon article 505.

It is also apparently in direct conflict with the provision of article 491 that 'ownership gives the right to enjoy and dispose of one's property in the most unlimited manner.' The line of demarkation between what an owner may do with impunity and what he may not do without incurring liability is drawn by article 668 between what is a mere inconvenience and what causes a real damage. But that cannot be the meaning; for very evidently an owner cannot be debarred from the legitimate use of his property simply because it may cause a real damage to his neighbor. It would be contrary to the fundamental legal principle according to which the exercise of a right cannot constitute a fault or wrong, and, besides, every damage is real; and unreal damage cannot be a damage.

We cannot reconcile these contradictions, or gather the true meaning or scope of these articles, from the articles themselves, but, for ascertaining this true meaning, must resort to the works of Pothier and Toullier, whence these articles were derived by the framers of our Code.

Pothier, in his second appendix to his work on Partnership (Paris Ed. 1835) vol. 3, says:

At page 549:

'Neighborhood is a quasi contract which creates reciprocal obligations between the neighbors; that is to say, between the owners or possessors of contiguous estates.'

And at page 556:

'The laws of good neighborhood forbid me to cause anything to pass from my estate to that of my neighbor which may damage him; but they do not prevent me from depriving him of some convenience which he derives from my estate. For instance, if he derives light from my estate, I may, by raising a building on my estate, deprive him of this light.'

And in his general introduction to his treatise on Customs, volume 10 of same edition, he says:

At page 40:

'Ownership may be defined to be the right to dispose of a thing as one pleases, provided the rights of others are not thereby infringed, or some law violated.'

At page 41:

'The rights here alluded to as not to be infringed upon are not only those which others may at some future time be entitled to have in the estate, but also those of the owners or possessors of neighboring estates. Although ownership gives to the owner the power to dispose of his estate as he pleases, he nevertheless cannot do what the obligations of neighborhood do not allow him to do to the prejudice of his neighbors.'

And in his treatise on Ownership, volume 8 of same edition, he says at page 117, No. 13:

'We have defined ownership to be the right to dispose at one's pleasure of a thing; and we have added, without, however, infringing the rights of others. * * * Among these rights are those of owners and possessors of neighboring estates. The owner of an estate, howsoever perfect his ownership may be, cannot injure these rights, and, in consequence, cannot do that within his estate which the obligations arising from neighborhood do not allow him to do therein to the prejudice of his neighbors.'

Toullier, des Biens, Vol. 3, p. 207, No. 327, says:

'Independently of these special cases the law forbids, in general terms, all such use of one's property as may cause a real damage to the public or to individuals; and by damage we are to understand whatever loss or diminution we suffer in our property by the fault or the act of another.

',328. But the damage must be real. A simple inconvenience, or even the prejudice which might be caused to the neighbor by legitimate acts of ownership such as I have the right to exercise on my property, would not be a sufficient motive to cramp my liberty in the exercise of these rights, and to furnish ground of complaint to the neighbor, provided these acts are not dictated by a desire to injure the neighbor, without any usefulness to myself.

'Now, the desire to injure is not to be presumed in the person who does but use a right he has.

'For example, if in digging a well for my own utility I cut off the spring which was feeding the well of my neighbor, he has no right to complain.'

The commentary of Toullier in elucidation of these principles is not near so satisfactory as that of Pothier, and especially as those of the commentators of the Code Napoleon. We will, therefore, for brevity's sake, omit that of Toullier, and give those of some of these commentators. As there is no difference between them, with one exception, Demolombe, we will confine ourselves to Laurent and Baudry-Lacantinerie and Chauveau, who are the most satisfactory. The Code Napoleon not containing a provision corresponding with the said proviso of article 668, Demolombe, basing himself upon the definition of ownership as giving the right to use, enjoy, and dispose of one's property in the most unlimited manner, and upon the principle that one who but exercises a right he has cannot be at fault, concludes that, even though what is done is simply for the purpose of injuring the neighbor, with no benefit to the owner, the neighbor has no right to complain; but the author adds that the contrary doctrine 'which is very ancient,' is generally admitted. Des Servitudes, Nos. 66 and 648.

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