Magnolia Petroleum Co. v. Dodd, 1842-6371.

• Decision Date: 24 April 1935
• Docket Number: No. 1842-6371.,1842-6371.
• Citation: 81 S.W.2d 653
• Parties: MAGNOLIA PETROLEUM CO. v. DODD.
• Court: Texas Supreme Court

81 S.W.2d 653

MAGNOLIA PETROLEUM CO. v. DODD.

No. 1842-6371.

Commission of Appeals of Texas, Section A.

April 24, 1935.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by E. J. Dodd against the Magnolia Petroleum Company. Judgment for plaintiff was modified and affirmed by the Court of Civil Appeals [52 S.W.(2d) 670], and defendant brings error.

Judgments of district court and of Court of Civil Appeals set aside, and judgment rendered for plaintiff in error.

C. F. Richards, of Lockhart, and W. H. Francis, A. S. Hardwicke, Walace Hawkins, and Russell Surles, all of Dallas, for plaintiff in error.

John N. Gambrell and Tom Gambrell, both of Lockhart, and Hart, Patterson & Hart, of Austin, for defendant in error.

GERMAN, Commissioner.

Defendant in error, E. J. Dodd, sued plaintiff in error, Magnolia Petroleum Company, to recover damages for injury to his pick-up oil station located in Seals creek. Seals creek is under our law a natural watercourse. The pick-up station was located on a 27-acre tract of land leased by defendant in error from Harry Hardeman, which tract apparently lay on both sides of the creek. The station was located in the main channel of Seals creek at or near the junction with the east prong of said creek. This station consisted of a flume, or catch pit, an underground storage tank, pumps, etc. As to its construction, we quote the following statement from brief of defendant in error:

"The plaintiff's pick-up station was a device for forcing the waters of the creek through a comparatively narrow channel where the oil could be skimmed off of the top of the water as it flowed by. In order to protect the station from ordinary trash and sticks which would get into the water, the plaintiff built a wire screen about three or four hundred feet upstream from the station. Walls of planks and dirt were built on the banks of each creek to divert the water through the floats. Two floats were built, and were adjustable so that they would skim the water at any level. A large flume was also constructed, with gates to be opened in case of floods.

"On the banks of the creek the plaintiff built a catch-pit which was about one hundred feet square. The sides of the pit were levees about four feet high. Surrounding the catch-pit was another levee about five feet high and about two hundred yards long, which was intended to keep the water from the creek in the normal channel and away from the plaintiff's catch-pit in time of flood.

"The rest of the plaintiff's equipment consisted of an underground steel tank with a capacity of 60 barrels, a 1500 barrel tank about fifty yards away, and an engine and pumps."

The plaintiff in error and other oil companies operated producing oil wells on various leases located some distance up Seals creek from where defendant in error's station was constructed. Waste oil from the producing wells escaped and drained into Seals creek and floated on the waters of the creek to the pick-up station. Defendant in error's business was to capture this abandoned waste oil by means of his catching station, located in the creek as above described, and to market same.

In March and April of the years 1928 and 1929 there were heavy rains, which resulted in considerable flooding of Seals creek. These floods brought down a large quantity of lumber, derrick timbers, logs, and brush from leases operated by plaintiff in error, which practically destroyed defendant in error's pick-up station, and caused the loss of a considerable amount of waste oil which had been accumulated in the underground storage basin.

The basis of defendant in error's cause of action is very aptly stated in the opinion of the Court of Civil Appeals in this language: "It alleged in substance and by reasonable inference that appellant as an upper riparian owner and operator of oil leases on Seals creek and its tributaries, negligently and in disregard of its duty and the rights of appellee, a lower riparian owner and operator of a waste oil pick-up station, left logs, fallen trees, heavy lumber, and derrick material in and along the banks of the creek and its tributaries, so that flood waters washed them down stream against appellee's pick-up station, causing damages. It is manifest from these allegations that appellee was charging appellant with a negligent and unreasonable use of its leased premises, and its right to use the stream for floating logs, etc., by leaving thereon logs, fallen trees, heavy lumber, and derrick material in and so near the banks of the creek...