Martel v. Hall Oil Co.

• Decision Date: 08 March 1927
• Docket Number: 1229
• Citation: 253 P. 862,36 Wyo. 166
• Parties: MARTEL et al. v. HALL OIL CO. et al. [*]
• Court: Wyoming Supreme Court

253 P. 862

36 Wyo. 166

MARTEL et al. v. HALL OIL CO. et al. ^[*]

No. 1229

Supreme Court of Wyoming

March 8, 1927

Rehearing Denied, April 12, 1927, Reported at: 36 Wyo. 166 at 187.

ERROR to District Court, Converse County; CYRUS O. BROWN, Judge.

Action by Arthur H. Martel and another against the Hall Oil Company and others. Judgment for defendants, and plaintiffs bring error. Rehearing denied. See 255 P. 3.

Affirmed.

John J Spriggs, and V. H. Stone, for plaintiffs in error.

All facts that the evidence proves or tends to prove, and reasonable inferences to be drawn therefrom, are admitted by motion for a directed verdict; Saylor v. Electric Co., 223 P. 725; Watts v. Spokane, 171 P. 901. Disputed questions of fact should be left to the jury; Peabody v. Co., 26 P. 1053; Jackson v Sumpter, 93 P. 145; Bristow v. Leaird, (Okla.) 223 P. 633; Supply Co. v. Drilling Co., 223 P. 399; Lamb v. Ulrich, 221 P. 745; Messman v. Wilt, 217 P. 412; 3 Wigmore, 1st Ed. 1917. Defendants concede that they committed trespass; plaintiffs had an estate, being the exclusive right to prospect for oil and gas; oil is mineral in place; State v. Snyder, (Wyo.) 212 P. 762; Carothers v. Mills, 233 S.W. 155. It may be reserved in a deed to the land; Donnell v. Otts, 230 S.W. 864. Two estates thus severable are distinct; the size, quantity or value of the estate does not affect recovery for trespass; damage to oil sands is actionable, since it is a loss; 8 R. C. L. 479, et seq; Thornton Oil & Gas, 4th Ed., Vol. 1, p. 92; Oil Co. v. Indiana, 177 U.S. 190; Gas Co. v. Haskell, 172 F. 545; Gas Co. v. Rankin, 207 P. 992. Oil and gas are a part of the realty: State v. Snyder, supra. A speculative value is a real value; McFadden v. French, (Wyo.) 213 P. 760. Proven territory is defined as property within or situated near a producing well; Thornton, 4th Ed., 505; Minchew v. Morris, 241 S.W. 215. The title to oil and gas is vested in the lessee: County v. Beckett, 17 L. R. A. N. S. 690. Trespass is any act damaging another's person, health, reputation or property: 26 R. C. L. 930-938. Damages are presumed in case of trespass, 26 R. C. L. 971. A trespasser is liable for consequential damages, 26 R. C. L. 974. Mental sorrow and anguish are elements of damage; 8 R. C. L. 512; also humiliation, indignity or insult are elements of damage; 8 R. C. L. 528. Punitive damages are recoverable under the evidence; Guffy v. Smith, 237 U.S. 119. A trespass forbidden, is malicious; Willis v. Noyes, 12 Pick. (Mass. ) 324; 7129 C. S. The directed verdict was contrary to evidence justifying punitive damages; Jones Co. v. Woody, 169 P. 879; Rhyne v. Turley, 131 P. 695; Wilson v. Vaughn, 23 F. 229; Press Co. v. Munro, 51 L. R. A. 354. The evidence showed actual damages, to-wit, the destruction of the market value of property costing $ 5,000.00, and the question of punitive damages should have been submitted to the jury; the petition for removal to the Federal Court was for delay, since that court was without jurisdiction; C. B. & Q. Ry. Co. v. Willard, 220 U.S. 524. A remanding order is not reviewable; 23 R. C. L. 831; but reinvests the jurisdiction of the State Court; 23 R. C. L. 832. The State Court had entered a default order which was affirmed by the order remanding the cause; removal proceedings do not cure a default; the order, permitting an inspection of plaintiff's well, was error and should be set aside; O'Reiley v. Court, 33 A. L. R. 13. The court erred in striking out allegations of estoppel in plaintiff's reply; Williamson v. Foreman, 23 Ind. 540. All defendants, joining in the trespass, are liable; Sutherland on Pleading, Vol. 4, Sec. 6537; Gosliner v. Brioner, 204 P. 21. The order of the trial court, with respect to the production of books, should be modified to require production of all matters called for in the motion; the court erred in rejecting evidence showing the lands to be within the Pilot Butte Oil Field; defendants are liable for neglect in permitting water to enter the well; the court erred in excluding evidence as to the value of the fixtures requested removed by defendants; 66 L. R. A. 46; Hurd v. Ry. Co., 176 Mo. 115; Martin v. Bartmus, 207 P. 550. The fixtures were placed on the property over plaintiff's protest and were not removable; Roberts v. Mills, 205 P. 873; Son v. Adamson, 204 P. 392; Midland Oil Co. v. Rudneck, 204 P. 1075. An oil and gas lessee is not the arbiter of the extent to which developments shall proceed in the absence of some stipulation; Brewster v. Zinc. Co., 140 F. 801.

Frederick D. Anderson, A. C. Campbell, and Hagens & Murane, for defendants in error.

Expert testimony, which is manifestly unreliable, should be withdrawn from the jury; 11 R. C. L. 579-582; 5 Ency. of Ev 524-639. The court properly excluded U. S. Bulletin No. 195; 11 R. C. L. 588. Oil and gas being fugitive substances are incapable of private ownership until reduced to possession; Oil Co. v. Ind., 44 L.Ed. 729; Jones v. Oil Co., (Pa.) 44 A. 1074; Lindsley v. Gas Co., 55 L.Ed. 369; Walls v. Co., 65 L.Ed. 276; Doddridge Co. v. Smith, 154 F. 970; Backer v. Co., 162 F. 627; Priddy v. Thompson, 204 F. 955; State v. Co., (Ind.) 49 N.E. 809; Campbell v. Smith, 101 N.E. 89; Carter v. County Court, (W. Va.) 32 S.E. 218; Kolachny v. Galbreath, (Okla.) 110 P. 902. A lessee has a mere right to recover, but has no title to oil or gas until reduced to possession; Kelly v. Keys, 62 A. 911; Steelsmith v. Gartlan, (W. Va.) 29 S.E. 978; Watford Co. v. Shipman, (Ill.) 84 N.E. 53; 1 Thornton's Oil and Gas, 4th Ed., Sections 20-57; Gillespie v. Co., (Ill.) 88 N.E. 192; Brookshire Oil Co. v. Co., 103 P. 927. Where there is no substantial evidence to support plaintiff's case, the court should direct a verdict for defendant, and this is especially true where the evidence is speculative, giving rise to mere conjecture; 26 R. C. L. 1075; Boxwell v. Bank, 16 Wyo. 161; C. B. & Q. Ry. Co. v. Cook, 18 Wyo. 43; 26 R. C. L. 1078; Pa. Ry. Co. v. Martin, 111 F. 586; Phoenix Co. v. Durham, (Okla.) 122 P. 708; Cudahy Co. v. Marcan, 106 F. 645; Cole v. Loan Co., 124 F. 113; Scherer v. Schlaberg, (N. D.) 122 N.W. 1000. Where the evidence is such that a verdict for plaintiff would be set aside, a verdict for defendant should be directed; 26 R. C. L. 1079; Schuerman v. Ins. Co. (Ill.) 43 N.E. 1093; Westfall v. Wait, (Ind.) 73 N.E. 1088; Schley v. Ry. Co., (Pa.) 76 A. 207; Fulton v. Freeland, (Mo.) 118 S.W. 12; Woodhouse v. Powells, (Wash.) 86 P. 1063; Ladd v. Redle, et al, 12 Wyo. 362. Where one enters upon lands of another without legal right, and takes away minerals, the measure of damages is the value of the minerals appropriated; where defendant does so under color of title, believing he has a right to do so, the expense of production must be deducted from the amount recoverable; but if defendant knew, or was in possession of facts affording no reasonable ground to believe that he had legal rights in taking the minerals, then he must respond for the full value thereof; Guffey v. Smith, 237 U.S. 119; Pittsburg Gas. Co. v. Gas Co., (W. Va.) 100 S.E. 296; 3 Lindley on Mines, 3rd Ed., p. 2177; Backer v. Co., 162 F. 627. Evidence of what an adjoining tract of land sold for, is inadmissable to prove value of tract damaged; Ry. Co. v. Smith, (Ind.) 33 N.E. 241. An offer to buy or sell is no evidence of value; 13 Ency. of Ev. 451; Chicago Ry. Co. v. Alexander, (Wash.) 91 P. 626; Hine v. Ry. Co., (N. Y.) 30 N.E. 985; Perkins v. People, 27 Mich. 386; Kerr v. Com'rs. 117 U.S. 379. Market value means the fair value of property, as between one desiring to purchase and one who wants to sell; Ry. Co. v. Fisher, 30 P. 111; Dady v. Condit, 58 N.E. 900. It is to be distinguished from a speculative value; Palmer v. Ass'n., 38 A. 108; Chase v. City, (Me.) 29 A. 1104; Rau v. Seidenberg, 104 N.Y.S. 798. Improvements and productiveness enter into the question; Reed v. Co. 59 A. 1067; Bridge Co. v. Stone, 92 S.W. 475. One cannot be held to respond in exemplary damages who enters peaceably upon the lands of another under an honest claim of right, even though his claim be in dispute, where there is no malice, oppression, fraud, force or violence; Cosgriff v. Miller, 10 Wyo. 190; Painter & Co. v. Staley Bros., 15 Wyo. 519; Henderson v. Coleman, 19 Wyo. 183; Powers v. Ry. Co., (N. Y.) 24 N.E. 295; Abbott v. Co., (Cal.) 37 P. 527; Norfolk Co. v. Miller, 174 F. 607; U. S. v. Mining Co., 117 F. 481; Ry. Co. v. Hoskins, (Miss. ) 32 So. 150; Sutherland on Damages, Vol. 2, 4th Ed. p. 1288; Ins. Co. v. Hargus, (Tex.) 99 S.W. 581. Unless some actual damage is suffered, punitive damages cannot be allowed; White v. Co., (Ia.) 146 N.W. 829; and cases cited. Where the damage is merely nominal, exemplary damages should not be allowed; Shaffer v. Austin, (Kan.) 74 P. 1118; Seal v. Halcomb, (Tex.) 107 S.W. 916; Schwartz v. Davis, (Ia.) 57 N.W. 849; Co. v. Knowlton, (Ia.) 108 N.W. 770; Ladd v. Redle, supra. Witness fees should be allowed where a nominal party is called as a witness; Keith v. Stiles, (Wis.) 65 N.W. 860; and, in the discretion of the court, witness fees may be allowed a party whose attorney is called as witness; Chandler v. Beal, (Ind.) 32 N.E. 597. Also where officers of a corporation, which is a party, are called as witnesses, they may be allowed fees and mileage; Mead v. Millersburg Water Co., 79 F. 129. Witness fees are taxable where witnesses can legally be called and examined; 7 R. C. L. 791; 11 Cyc. 116. Denial of plaintiff's motion for default was within the discretion of the court; Bertagnolli Bros. v. Bertagnolli, 23 Wyo. 228. Removal of causes is effected by filing the proper petition and bond; Kern v. Huidekoper, 103 U.S. 485. This case is not within Section 5648 C. S. 1920; when an issue is reached, the cause is deemed at issue,...