Magnolia Petroleum Co. v. McCollum

• Decision Date: 19 March 1951
• Docket Number: No. 37869,37869
• Citation: 51 So.2d 217,211 Miss. 166
• Parties: MAGNOLIA PETROLEUM CO. v. McCOLLUM.
• Court: Mississippi Supreme Court

Page 217

51 So.2d 217

211 Miss. 166

MAGNOLIA PETROLEUM CO. v. McCOLLUM.

No. 37869.

Supreme Court of Mississippi, Division A.

March 19, 1951.

Brunini, Everett, Grantham & Quin, Vicksburg, for appellant.

R. C. Russell, Magee, L. D. Pittman, Raleigh, for appellee.

KYLE, Justice.

Appellee, Scott McCollum, obtained a judgment in the circuit court against appellant, Magnolia Petroleum Company, for damages for the destruction of a water well which resulted from the explosion of dynamite charges set off by the appellant in making seismographic tests on appellee's 66-acre farm.

The appellant was engaged in making geophysical explorations for oil and gas in and around the Town of Mize during the month of March 1949, and on March 24 the appellant's agent in charge of the blasting operations with a crew of workmen entered upon appellee's land and fired two shots of dynamite explosives at depths of 45 to 55 feet below the surface of the ground and within a distance of approximately 350 yards from the appellee's water well. The water well was approximately 85 feet deep, and was curbed with yellow heart pine curbing. According to the testimony of appellee's witnesses the well, prior to the explosion of the dynamite, provided an abundant supply of pure clear freestone water, which was used by appellee's family for drinking, cooking and washing purposes, and for watering the livestock. After the underground explosions had been made by the appellant, the water immediately developed a milky appearance and became unfit for use, and the well finally dried up. Appellee and the other members of his family found it necessary to carry water from the well of a nearby neighbor to their home for drinking, washing and cooking, or to catch rain water in buckets and barrels for household uses, and to water the stock at a pond about 350 yards away.

After the lapse of several months appellee made arrangements with Leon Bryant to drill a new well for him. The new well was drilled to a depth of 101 feet, or 16 feet deeper than the old well, and was located only a few yards away from the old well. According to the testimony of appellee's witnesses the new well did not provide the same kind of abundant supply of pure clear water that the old well provided before it was damaged by the dynamite explosion. The water in the new well at times presented a milky appearance, and only a few buckets of water could be drawn from the new well at any one time. These facts were testified to by appellee's wife and son and by one of appellee's neighbors who had been accustomed to get water out of the old well and who drew water from the new well after the new well had been provided.

The appellee offered abundant proof of the ample supply and superior quality of the water drawn from the old well prior to the dynamite explosions. The appellee and his family had occupied the property only a few months before the explosion, but their testimony as to the abundant quantity and fine quality of the water furnished by the old well was confirmed by the testimony of Mack Spell who lived on the land and occupied the main dwelling house during the year immediately preceding appellee's purchase and occupancy of the 66-acre tract. Spell testified that he had drawn as much as fifty buckets of water at a time from the well to water stock, and that the water never became discolored or murky in appearance while he lived on the place. Mrs. Ollie Ashley testified that she was a close neighbor of the McCollums and got all of her water from the McCollum well before the blasting, that the well was a very fine well and provided an abundant supply of water. Mrs. Mattie Bridges testified that the water from the old well prior to the time of the blasting was good, clear, freestone water, and that there was an abundant supply. Mrs. E. V. Roberts testified to the same effect. Both of these witnesses were near neighbors of the McCollums, and their testimony was based upon their own personal knowledge of the well. Each of them also testified as to the poor quality of the water taken from the new well which had been drilled to take the place of the old well.

The new well which Leon Bryant drilled for the appellee cost approximately $175. The appellee testified that the value of his land had been reduced at least $500 because of the destruction of the old well; and the appellee also claimed damages for the loss of time and labor expended by the appellee in carrying water from a neighboring well to appellee's home during the several months which elapsed before the new well was provided.

The jury after considering the testimony of the witnesses returned a verdict for the appellee for the sum of $500, and judgment was rendered by the court for that amount.

The appellant in the brief filed by appellant's attorneys contend that the judgment should be reversed for the reasons that there was no trespass and no negligence on the part of the appellant and that the proof was insufficient to show that the seismographic explosions were the proximate cause of the ruined condition of appellee's well.

The appellant claimed that its entry upon the appellee's land for the purpose of making the seismographic tests was with the appellee's permission, and that appellant in entering upon the lands for the purpose of making such tests was not a trespasser but a bona fide licensee. This contention was stated in appellant's motion to exclude the testimony offered by the plaintiff, appellee herein, and for a directed verdict on the ground that 'the proof affirmatively shows that the plaintiff was advised of the proposed entry upon his land for the purpose of geophysical operations, * * * and that the plaintiff knew that the explosives would be used under the surface of the earth for such purposes, and...