Kennedy v. General Geophysical Co., 12002.

• Decision Date: 22 July 1948
• Docket Number: No. 12002.,12002.
• Parties: KENNEDY v. GENERAL GEOPHYSICAL CO. et al.
• Court: Texas Court of Appeals

213 S.W.2d 707

KENNEDY v. GENERAL GEOPHYSICAL CO. et al.

No. 12002.

Court of Civil Appeals of Texas. Galveston.

July 22, 1948.

Rehearing Denied September 30, 1948.

Appeal from District Court, Houston County; V. M. Johnston, Judge.

Action for damage allegedly resulting from exploration for minerals by C. W. Kennedy, Jr., against General Geophysical Company and another. From a judgment for the defendants, the plaintiff appeals.

Affirmed.

Kennedy & Granberry, of Crockett, for appellant.

Adams & Morgan, of Crockett, and W. P. Z. German, Jr., of Midland, for appellees.

MONTEITH, Chief Justice.

This action was brought by appellant, C. W. Kennedy, Jr., for the recovery of damages alleged to have been sustained by him by reason of the acts of appellees, General Geophysical Company and Skelly Oil Company in securing information as to the presence or absence of oil, gas or other minerals in and under a tract of 339 acres of land belonging to him in Houston County, Texas, and for an alleged trespass in the form of vibrations caused by explosions of dynamite in conducting geophysical operations in close proximity to appellant's land. He sought exemplary damages by reason of the alleged willful and malicious acts of appellees in conducting such operations and in the securing of such information.

In the trial before the Court, without a jury, judgment was rendered in favor of appellees and that appellant take nothing by his suit.

At the request of appellant the trial court prepared and caused to be filed his findings of fact and conclusions of law in which he found, in substance, on what we deem to be sufficient evidence, that:

Appellee, General Geophysical Company, had been employed by Skelly Oil Company to perform certain geophysical operations for the purpose of securing information relative to sub-surface structure of certain lands in Houston County, Texas;

That these geophysical operations were conducted by boring holes in the ground and placing dynamite or other explosives therein, which were caused to explode; that at various distances from these "shot-holes," receiving instruments called seismometers, or jugs, were placed, which received vibrations caused by the explosions at the "shot-points" and transmitted them through a cable to a recording truck, and that by interpretation of these vibrations the depth points below such receiving instruments were determined;

That appellant was the owner of 339 acres of land in the vicinity of these operations, and on or about August 1, 1947, an agent of appellee General Geophysical Company requested appellant's permission to conduct geophysical operations on his land, and that he was informed by appellant that he could neither "shoot" his land or the land along the road adjoining his land without paying for the right to do so;

The court found that neither appellees nor their agents or employees went upon or "shot" any part of appellant's land, and that the General Geophysical Company did not place any "shot-point," receiving set, or recording trucks on any part of said land, but that it did "shoot" land near plaintiff's land, one of such "shots" being within 10 or 15 feet of the boundaries thereof, but that on no occasion of such "shooting" did a straight line running from such "shot-point" to a "receiving set" or "jug" cross any part of plaintiff's land; that the shots and receiving sets were placed along or on a public road or highway adjoining the land at distances of 150 feet apart;

The court found that the vibrations received by these receiving instruments or "jugs" go down from the "shot-point" vertically and then back up to such receiving sets or "jugs," and that by the interpretation of these vibrations so received and recorded, information is gotten relative to the depth points under such receiving sets and that no interpretation or geophysical information as to plaintiff's land was given Skelly Oil Company by either the General Geophysical Company or its agents; and that no receiving sets were placed on said land; that the appellees got no reliable information as to the sub-surface structure under appellant's land by reason of the "shooting" and that any information that appellees may have gotten as to sub-surface structure under plaintiff's land would be based on assumption or supposition that the sub-surface structure under plaintiff's land, was the same as that along the road adjacent to the land on which the receiving sets were placed;

The court found that there was no evidence introduced upon the trial as to the extent and intensity of either the horizontal or vertical vibrations emanating from the explorations at the "shot-points" except that the vertical vibrations going straight down and back to the receiving sets were sometimes sufficient to be received by the "jugs" several hundred feet away from the points of "shooting"; and that it is a physical impossibility to control or govern the direction of the vibrations emanating from the explorations at the "shot-point"; that these vibrations extend horizontally and vertically from the points of explosion, and that the extent thereof is governed by the intensity of the explosion, and also by the character of the earth's structure through which the vibrations go;

He found that there was no evidence that appellant suffered any physical damage to his land by reason of the explorations at the point of shooting near his land; and

That neither the General Geophysical Company nor the Skelly Oil Company or their agents acted with malice or were prompted by malice in making the explorations complained of by appellant.

The trial court found as conclusions of law:

That, there being no evidence of any trespass on plaintiff's land and no evidence of any damage to the physical structure either of the surface or the sub-surface thereunder, appellant was not entitled to recover damages, either nominal or actual;

That the appellees' action in determining by geophysical exploration of land so explored the depth-points under such land, cannot and does not form a basis for appellant's claim for actual damages, since it was not shown that the appellees trespassed on plaintiff's land or in any way injured his land in securing such information;

That the mere fact that appellees conducted geophysical operations on land adjacent to and in the vicinity of appellant's land and thereby obtained information which they considered of value in determining the probable presence or absence of oil, gas, or other minerals under the land explored, cannot form a basis for appellant's claim for the actual damages sought by him, it not being shown that any trespass of appellant's land was committed by appellees, or that any injury was done, to appellant's land by such geophysical operations on adjacent land.

The court found that the appellees were under no legal obligation to disclose to appellant any information obtained by them by reason of the geophysical operations on land that did not belong to appellant, and that appellant cannot recover for the withholding of such information;

That, it being shown that neither of the appellees in their operations complained of by appellant acted maliciously or were prompted in the acts done by them by malice, plaintiff was not entitled in any event to exemplary damages.

Only two witnesses testified on the trial of the case — appellant C. W. Kennedy and John Clements, an employee of General Geophysical Company, who was the party chief of the exploration truck which conducted the geophysical operation. Mr. Clements testified that by such geophysical explorations they obtained "depth-points" approximately directly beneath the "receiving sets" or "jugs." There is no evidence in the record as to whether any information was secured in reference to the sub-surface structure and/or the problematical presence of oil, gas or other minerals.

Under appropriate points of appeal appellant contends that the trial court erred in finding as a matter of fact that appellees gained no information as to plaintiff's land. He contends that the court should have taken judicial notice of the scientific fact, in the absence of evidence to the contrary, that the slope, dip or trend of a given sub-surface formation continued with the same slope, dip or trend of the last point known, and that the court should have taken judicial notice of the scientific facts that appellees by the geophysical operations acquired information as to the sub-surface formation and the probable presence or absence of oil, gas, or other minerals in and under appellant's land and that such information was a valuable property right for the taking of which plaintiff should be entitled to damages.

There is no evidence in the record that, when a dip or slope of a sub-surface formation is determined in one locality, it will necessarily follow that the same dip or slope continues uniformly under adjoining land, and there is only one reference in the record to the value of information alleged to have been secured by appellees, for which appellant seeks damages, the testimony of appellant that he would not sell that information to his exclusion for $5000.

No testimony or evidence of any nature was introduced by appellant to dispute the statements by Mr. Clements that appellees gained no information in reference to appellant's land, nor was any evidence introduced tending to establish appellant's contention that the trial court should have...