McComb v. Stanolind Oil & Gas Co.

• Decision Date: 17 November 1947
• Docket Number: 36866.
• Citation: 164 Kan. 1,186 P.2d 574
• Parties: McCOMB v. STANOLIND OIL & GAS CO. et al.
• Court: Kansas Supreme Court

186 P.2d 574

164 Kan. 1

McCOMB v. STANOLIND OIL & GAS CO. et al.

No. 36866.

Supreme Court of Kansas

November 17, 1947

Appeal from District Court, Stafford County; Wendell Ready, Judge pro tem.

Action by Randall McComb against the Stanolind Oil & Gas Company and others, to recover damages for pollution of water supply on plaintiff's realty allegedly as result of defendants' oil field operations. From a judgment for defendants notwithstanding a verdict for the plaintiff, the plaintiff appeals.

Judgment reversed, and cause remanded to trial court with instructions to reinstate judgment.

Syllabus by the Court.

1. The record examined in an action commenced June 20, 1945, for damages for pollution of a water supply, where the evidence disclosed that an analysis of the water made in March 1942 contained 128 parts per million of salt; that water containing less than 250 parts per million of salt was satisfactory for use; that the water was used by plaintiff and his family for drinking and for domestic uses and it was good; that such situation continued until about January 1944 when the water became unfit for such use; that an analysis of the water made in March 1944 showed the salt content to be 800 parts per million and other tests later made showed as much or greater pollution and that the pollution was caused by defendants' operations, and held, the trial court erred in holding the action was barred by the statute of limitations (G.S.1935, 60-306, third).

2. An appellee who has not given notice of cross-appeal as provided by G.S.1945 Supp. 60-3314, may not question the sufficiency of the evidence to sustain a verdict and a judgment thereon against him.

Roy C. Davis, of Hutchinson (Frank S. Hodge, Eugene A. White and Robert Y. Jones, all of Hutchinson, on the brief), for appellant.

George Stallwitz, of Wichita (Joseph C. Carey, W. F. Lilleston George C. Spradling and H. V. Gott, all of Wichita, on the brief), for appellee Stanolind Oil & Gas Co.

Glenn Porter, of Wichita (William Tinker, Getto McDonald, Arthur W Skaer and Hugh P. Quinn, all of Wichita, on the brief), for appellee Pure Oil Co.

THIELE Justice.

This was an action to recover damages for pollution of a water supply on plaintiff's real estate alleged to have been caused by oil field operations of the defendants. The jury returned a general verdict in favor of plaintiff and answered special questions. On a motion for judgment non obstante veredicto, judgment was ultimately rendered against the plaintiff, who has appealed, the principal question submitted being whether his cause of action was barred by the statute of limitations. The defendant, Marguerite L. Garden, filed no answer and did not appear at the trial, and is not a party to the appeal. Reference to the defendants as hereafter made does not include her.

Plaintiff commenced his action on June 20, 1945, his petition, in substance, alleging that he was the owner of certain real estate in the town of Zenith in Stafford County; that the defendants were owners and operators of oil and gas leases on surrounding real estate on which there were producing oil wells; that the defendants constructed open pits, ponds and disposal pools upon their respective leases and caused to be placed therein salt water, waste crude oil, basic sediment and other deleterious matters; that the pits, ponds and pools were constructed in a sandy soil or strata which extended down to the subsurface water from which plaintiff received his water supply, and that the salt water, waste crude oil basic sediment and other deleterious matter permitted by defendants to run into the pits, ponds and pools had seeped and penetrated through the ground to plaintiff's water supply; that the pollution of the water supply was caused by the acts of the defendants, and by reason of such wrongful acts in ruining plaintiff's water supply plaintiff had been compelled to haul water for personal use, commencing January 1, 1944, until conditions got so bad it was impossible for plaintiff to longer live on the premises and he abandoned the real estate in September, 1944. Other allegations of specific damage need not be noted. For present purposes it may be said that each answering defendant denied generally and pleaded that any alleged cause of action of the plaintiff was barred by the two-year statute of limitations.

At the trial the defendants demurred to plaintiff's evidence for the reason that it showed his cause of action barred by the two-year statute of limitations. This demurrer was overruled and defendants presented their defense. At the conclusion of the trial on October 25, 1946, the jury returned a verdict in favor of the plaintiff against the defendants and the court rendered judgment in conformity with the verdict. The jury also answered four special questions, viz.:

'Question No. 1: Do you find from the evidence that the water well in question was becoming contaminated from oil field refuse at the time Mr. and Mrs. Mays lived there? Answer: No.

'Question No. 2: Do you find that as of March 3rd and 4th, 1942, there was actually existing in the water in plaintiff's water well salt or chlorides to the extent of 128 parts per million? Answer: Yes.

'Question No. 3: Do you find that there was a pollution of the water in plaintiff's water well? Answer: Yes.

'Question No. 4: If you answer question No. 3 in the affirmative, then state:

'(a) When did such pollution or contamination occur? Answer: Early part of 1944.

'(b) When did the plaintiff know of such contamination? Answer: Early part of 1944.'

In due time each defendant filed three motions: 'I. For a new trial; II. For judgment non obstante veredicto upon the answer to special question No. 2; and III. To strike the answers to special questions 1, 3 and 4 for the reason they were contrary to the evidence and were given under the influence of passion and prejudice. On December 21, 1946, the trial court denied the motions for a new trial, sustained the motions to set aside the answers to special questions and rendered judgment in favor of the defendants on the answer to special question No. 2 and set aside the entry of judgment of October 25, 1946. The journal entry of judgment states that the trial court found that in view of cases dealing with limitation of actions, especially Seglem v. Skelly Oil Co., 145 Kan. 216, 65 P.2d 553, and in view of the analysis of the water from plaintiff's well, made on March 3, 1942, which showed a salt content of 7.8 grains of salt to the gallon, the date of the trespass and the accrual of a cause of action was established, and the plaintiff was barred, his suit having been filed more than two years after the limitation statute started to run.

Plaintiff perfected his appeal from various rulings and judgment of December 21, 1946.

Appellant specifies error in six particulars, but the sum and substance of his complaint as presented in his brief is that the trial court erred in ruling that his cause of action was barred by the statute of limitations (G.S.1935, 60-306, third).

To determine correctness of the trial court's rulings and judgment of December 21, 1946, we must apply the law to the facts shown by the evidence, and in view of the general verdict in favor of the plaintiff, that review is confined to his evidence, except as particular matters may have been determined by the answers to special questions submitted. We also have for consideration whether the special answers are contrary to the evidence. Our review of the evidence is limited generally to matters necessary to a decision of the questions so presented.

The evidence discloses the following geographical situation. The entire town of Zenith comprises 17 acres in the east half of the southeast quarter of the southeast quarter of Section 14, Township 24, Range 11, in Stafford County. Plaintiff's lots lie almost in the center of the town. The oil and gas leases operated by Stanolind include the west half of Section 14 and the north half of Section 23 which lies immediately to the south, as well as other lands further removed. The lease operated by Pure includes all of the southeast quarter of Section 14 except the southeast quarter thereof, and Garden's lease was on the west half of the southeast quarter of the southeast quarter. The water level of the water in plaintiff's well was about 65 feet. The chief geologist of the oil field section of the sanitary division of the state board of health testified that as nearly as he could say, the underflow was in a southeast direction. Another witness who stated he had been in the vicinity for 40 years, was a well driller and had drilled many wells in and around Zenith, stated the general direction of the well water underflow was a little to the northeast, more east than north. Without attempting a detailed statement as to location there is ample evidence that the defendants had salt water ponds and pools and pits on their leases to the northwest, west, southwest and south of the town of Zenith.

Plaintiff purchased his real estate from C. A. Mays in January, 1942, and with his family moved into it in March 1942. It is not necessary that we describe the house and other improvements. There was a well on the premises and when they moved in the water was good. Plaintiff knew that there had been some trouble with salt water in wells in Zenith and in March, 1942, he took a sample to the DuPray Laboratories at Hutchinson, whose report showed that there was 7.5 grains of salt, computed as sodium chloride, per gallon of water. This is stated to be the same as 128 parts per million. (See special question No. 2.) At that time the family used the water, drank it and used it in every way. They had no difficulty with soap and obtained a fine...