Mauk v. Texas Pipe Line Co.

• Decision Date: 10 April 1936
• Docket Number: No. 13335.,13335.
• Parties: MAUK v. TEXAS PIPE LINE CO.
• Court: Texas Court of Appeals

93 S.W.2d 820

MAUK v. TEXAS PIPE LINE CO.

No. 13335.

Court of Civil Appeals of Texas. Fort Worth.

April 10, 1936.

Rehearing Denied May 8, 1936.

Appeal from District Court, Dallas County; Terry Dickens, Judge, Presiding on Exchange.

Suit by A. P. Mauk against the Texas Pipe Line Company, wherein defendant filed a demurrer. From a judgment for defendant, plaintiff appeals.

Affirmed.

R. J. Cantrell and H. B. Sanders, both of Dallas, for appellant.

H. S. Garrett and H. R. Wilson, both of Fort Worth, for appellee.

DUNKLIN, Chief Justice.

A. P. Mauk is the owner of a tract of 100 acres of land in Dallas county. Across the west side of that tract the Texas Pipe Line Company owns and maintains two oil pipe lines, running parallel and about 2 to 4 feet apart, and the west pipe line is about 10 to 12 feet from the west boundary of the tract, which is also the east boundary of a public highway. The highway is crossed by two ravines, both of which enter the 100-acre tract on the west boundary line and converge into one ravine near the south boundary of the tract. Both ravines are crossed by the two pipe lines. In the southwest corner of the tract two water cisterns were dug adjacent to the south ravine, one on the south side and the other on the north side. Those cisterns were made by blasting out the rock, and water therefrom was used for watering stock and household purposes by the occupants of the improvements. About 7 acres in the southwest corner of the tract, which included the two ravines, were fenced off and used for pasturage purposes. The remainder was used for agricultural purposes. The cistern on the south side of the ravine became filled with mud and its use was abandoned. But the one on the north side continued in use.

Mauk instituted this suit against the pipe line company to recover damages alleged to have been caused by a contamination of the water in the cistern from oil alleged to have escaped from the two pipe lines.

It was alleged that plaintiff had been the owner of the land since January 24, 1908, and that on the 10th day of October, 1921, he executed to the defendant pipe line company a certain contract of easement; and—

"That said instrument granted and conveyed to this defendant right to lay, operate and maintain a pipe line for the transportation of oil or gas over and through the plaintiff's land above described, and contained the following specific provisions:

"`And by the acceptance hereof, the grantee agrees to bury such pipe lines so that they will not interfere with the cultivation of the land, and also to pay any and all damages to crops, fences and land, which may be suffered from the construction, operation or maintenance of such pipe lines;'

"That said instrument provided for the laying of two pipe lines by the defendant company, if such should be desired, and the two pipe lines were actually laid by the defendant company at dates not long after the execution of said easement, the exact dates being unknown to this plaintiff, but being well known to the defendant; that thereafter, and the dates likewise unknown to this plaintiff, but well known to the defendant, the latter began the transportation of oil in and through said pipe lines, running through the plaintiff's land above described."

It was further alleged that the pipe lines when originally laid were entirely under the surface of the ground, but since the original construction portions thereof have been and are now exposed to the surface; that the ravines are fed from the rainfall and springs, and the subsurface is of limestone construction, having crevices and cracks therein.

It was further alleged:

"That some time prior to said August, 1931, at a time unknown to this plaintiff, but first discovered by him in August, 1931, and the damage therefrom first resulting to this plaintiff subsequent to said August 1931 and prior to the filing of this suit, the said oil leaked, or escaped from the pipe line, or lines, of the defendant corporation on to plaintiff's premises, that the leaking or escaping of the oil from the defendant's pipe lines, on to plaintiff's premises was known to the defendant, its agents and employees, or could have become known by the use of ordinary care, and that permitting such oil to leak or escape from such line, or lines, constituted, and was, negligence upon the part of the defendant, its agents and employees.

"Plaintiff further shows that as a direct and proximate result of the negligence aforesaid of the defendant corporation, its agents and employees, plaintiff has suffered damage in the sum of $10,000, in that as a direct and proximate result of the leaks discovered by the plaintiff in August, 1931, and resulting in damage subsequent thereto, the premises of plaintiff aforesaid do not have any reasonable market value whatsoever at this time, and did not have any market value whatsoever immediately after the infliction of the damages above alleged, whereas immediately prior thereto the premises of the plaintiff had a reasonable market value of $100 per acre; that such damages have been, and will be, permanent in their nature so far as the effect upon the market value of the plaintiff's premises are concerned, in that the well and water supply to said premises have been destroyed and cannot be replaced."

In the alternative, plaintiff alleged that his tenants had removed from the premises on account of the contamination of the water in the cistern from the oil, resulting in his loss of rentals.

There was a further prayer for exemplary damages in the sum of $2,500 for the defendant's failure to remedy the defects in its pipe lines which caused the leakage of oil therefrom, after the discovery of the new leak, or leaks, and the damages therefrom in August, 1931, and prior to the filing of this suit after plaintiff had notified the defendant of such leakage.

Plaintiff's original petition was filed July 28, 1933, and the case was tried upon his fourth amended original petition, filed January 15, 1935.

Defendant filed an answer to the amended petition, embodying a general demurrer, numerous special exceptions, a general denial, and a special plea, alleging that plaintiff's alleged cause of action was barred by the two years' statute of limitation. Article 5526, Rev.Civ.Statutes.

The case was tried before a jury, and at the conclusion of the evidence offered by plaintiff, the court sustained the defendant's motion for an instructed verdict in its favor. A verdict was returned in accordance with that instruction, and the plaintiff has appealed from the judgment rendered upon that verdict.

Four assignments of error are presented, the substance of which is that plaintiff's pleadings were sufficient as a basis for recovery of the damages sought; that the evidence introduced would warrant findings that oil had leaked out of defendant's pipe lines and had caused the damage complained of; and that plaintiff had sustained the damages as the result of such leakage of oil in the amount alleged in his petition; and further that defendant had stopped prior leakage from the pipe lines upon plaintiff's complaint thereof, which action constituted an admission that those leaks had existed.

Appellant's briefs contain no assignment of error presenting the contention that the evidence introduced was sufficient to sustain a finding by the jury that in the construction and maintenance of the pipe lines the defendant was guilty of negligence, which was the proximate cause of the leakage of the oil therefrom and the damage sued for.

The statement of facts, showing all the evidence introduced upon the trial, is in the record here and covers some 152 pages; and in appellant's briefs some 52 pages are devoted to a recital of the evidence therefrom.

Appellant invokes the familiar rule announced in numerous decisions, such as Sigmond Rothchild Co. v. Moore (Tex. Com.App.) 37 S.W.(2d) 121, 122, that "the trial court is not justified in giving a peremptory instruction unless the evidence is so conclusive that reasonable minds cannot differ thereon." And in appellant's briefs there is a summary of the testimony relied on to support the assignment to the action of the court in instructing a verdict for defendant as follows: Testimony of plaintiff that on a former occasion he had complained to the defendant of the leakage of oil from the pipe lines and that Mr. Colligan, defendant's representative, came out and stated to him that he had found the leak and had stopped it, and that there should be no more oil to bother him; also, the testimony of several witnesses that they had discovered oil in the water in the cistern on different occasions, one of whom testified to the death of some cattle that drank the water from the cistern,...