McCarty v. Hogan

• Court: Texas Court of Appeals
• Writing for the Court: Speer
• Citation: McCarty v. Hogan, 121 S.W.2d 499 (Tex. App. 1938)
• Decision Date: 21 October 1938
• Docket Number: No. 13819.,13819.
• Parties: McCARTY et al. v. HOGAN.

121 S.W.2d 499

McCARTY et al. v. HOGAN.

No. 13819.

Court of Civil Appeals of Texas. Fort Worth.

October 21, 1938.

Rehearing Denied November 18, 1938.

Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.

Action by J. T. Hogan against J. A. McCarty and another for damages resulting from salt water from defendants' wells overflowing plaintiff's land. From a judgment for plaintiff, defendants appeal.

Judgment affirmed.

Harris & Martin, of Wichita Falls, for appellants.

Taylor, Muse & Taylor and Bruce Greenwood, all of Wichita Falls, for appellee.

SPEER, Justice.

J. T. Hogan sued J. A. McCarty and C. F. Peterson in a district court of Wichita County, for damages to crops, livestock and grass on pasture lands for their alleged negligent acts in permitting salt water from oil wells to escape from pits or ponds and spread over plaintiff's lands, at specified times. Judgment was entered for plaintiff, and defendants have appealed.

No jury being demanded, the law and facts were submitted to the court for determination.

Appellants base their appeal upon propositions under their assignments of error, to the effect that the petition was subject to both general demurrer and special exceptions urged and overruled by the court; and further that if they be mistaken in this contention, there was no evidence before the court to support a finding of negligence to support the judgment entered.

Appellee's petition was sufficient, if proven, to establish as a fact that he was a tenant on certain lands during the year 1936, and entitled to its use free of the acts of appellants in the respects complained of; that appellants owned and operated an oil and gas lease in what is commonly called the K M A oil field, and that a public road divided the two tracts. That the natural slope of the ground from appellants' lands was toward that of appellee. The wells, the source of the matters complained of, are about one-half mile from appellee's land. That appellee planted and had growing on his lands about 40 acres of cotton and had about 10 acres of native grass, the latter being used for pasturage purposes for milk cows and work stock on the place. That at the time appellee claims appellants caused his damages, the cotton was matured and would soon be ready to gather without further cultivation.

Appellee alleged that appellants, prior to the time of the damages complained of, had drilled several oil wells on their property and were pumping oil therefrom; that in removing the oil, large quantities of salt water were pumped from the wells; that they had prepared certain pits and reservoirs in the vicinity of the wells, and had pumped the salt water into the pits; that the pits were insufficient in size and depth to contain the salt water; that appellants knew, or by the exercise of a small amount of diligence, could have known, they were insufficient for that purpose, and that if the pits and reservoirs did not retain the salt water, appellants well knew it would flow down the draw or ditch in that vicinity and go upon the lands of appellee; that the pits and reservoirs were inadequate to retain the quantities of salt water placed therein by the appellants, and of this fact they had full knowledge. Allegations were made that during rains on about September 16, 1936, and September 23d, of the same year, the salt water so pumped into said pits by appellants overflowed and ran upon appellee's lands, resulting in the damages sued for. In view of the contentions of appellants, we quote from the petition as follows: "That the acts of defendants (appellants here) in failing and neglecting to provide sufficient pits and reservoirs to impound the salt water from said wells, as set out above, and prevent the same from running on and across the lands farmed by plaintiff, is negligence on their part, and was negligence when said salt water was permitted to run across said lands on or about September 16th, 1936, and on or about September 23rd, 1936, and the proximate cause of all damages suffered by plaintiff and set out herein." The case was tried upon plaintiff's (appellee's) "second amended original petition."

The appellants (defendants below) filed a general demurrer to the amended pleading. They likewise filed three special exceptions to designated parts of "plaintiff's first amended original petition." The objections point out the parts of plaintiff's pleadings to which the exceptions are applicable, and we find they are in the pleadings of plaintiff shown in the record, and while, as stated, that pleading is a second amended petition, we shall treat the reference to it as a first amendment as a clerical error, which could have occurred in several ways. Following the demurrer and exceptions, defendants plead the general issue.

Appellee has filed no briefs in this appeal, and we must discuss the case from the record and the contentions urged by appellants in their briefs.

What we shall say relative to the proposition about the special exception relied upon by appellants will dispose of the assignment complaining of the action of the court in overruling the general demurrer.

The proposition which complains of the overruling of the only special exception applicable to this appeal is as follows:

"Where, as in this case, the petition upon which the judgment is based fails to specifically charge the appellants with any specific act of negligence, but merely alleges that salt water coming from the wells operated by the appellants overflowed the pits and reservoirs maintained by them and ran down a ditch or draw to the west of the land farmed by appellee and overflowed the same and does not put the appellants on notice as to any specific act of negligence on their part, it is reversible error for the trial court to overrule a special exception to said petition pointing out such defects therein."

By the proposition, as quoted, appellants present a well established rule of law and procedure in this State. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221. But we do not believe the proposition applicable here, because of the recitations in the petition. To paraphrase the pleadings of appellee, we may say he plead that appellants were pumping large quantities of salt water from their wells at the time of and prior to the date on which appellee claims to have suffered his damages; that it was the duty of appellants to construct adequate pits and reservoirs to contain that water to prevent it passing down the natural slope of the ground in that vicinity and down a draw or ditch on to appellee's farm lands; that they had full knowledge if the water escaped it would damage appellee's crops; that they knew said pits were inadequate for that purpose, and that they negligently failed to prepare and maintain adequate and sufficient reservoirs for that purpose, and that when the water did escape onto appellee's lands on the two dates in September, 1936, it was the result of and proximately caused by the negligence of appellants in failing to maintain adequate pits and reservoirs to retain said salt water and prevent it from escaping onto the farm, resulting in the damages complained of. To sustain a claim for actual damages, we...