Mid-Continent Petroleum Corp. v. Rhodes

• Decision Date: 02 October 1951
• Docket Number: MID-CONTINENT,No. 34164,34164
• Parties: PETROLEUM CORP. et al. v. RHODES.
• Court: Oklahoma Supreme Court

Page 95

240 P.2d 95

205 Okla. 651

MID-CONTINENT PETROLEUM CORP. et al. v. RHODES.

No. 34164.

Supreme Court of Oklahoma.

Oct. 2, 1951.

Rehearing Denied Oct. 23, 1951.

Application for Leave to File Second Petition for Rehearing

Denied Jan. 22, 1952.

SYLLABUS BY THE COURT.

1. When the mineral rights in lands have been reserved prior to the lease of the lands for agricultural purposes, the holder of an oil mining lease owns a dominant estate in the land for purpose of exploring for oil, and possesses exclusive right to use so much of the leased premises as reasonably necessary to the operation of drilling for oil and said oil lessee owes no legal duty to lessee of surface to fence off tanks, machinery, etc., to prevent livestock from having access thereto; but oil lessee owes the duty to not intentionally, wilfully, or wantonly injure livestock, and after discovery of their peril to use reasonable care to avoid injuring them.

2. The provisions of 52 O.S.1941 § 296, that 'salt water shall not be allowed to flow over the surface of the land' means the lessee producer shall not permit salt water to 'escape' from its confinement and flow over the surface of the land in the plain and ordinary meaning of the term, and where a lessee in the operation of drilling for oil runs salt water into a prepared slush pit and does not permit the salt water to escape therefrom and beyond the confines of the premises reasonably necessary in the drilling operations, there is no violation of that statute.

3. Salt water and other deleterious substances incident to the operation of an oil and gas lease are not poisonous compounds within the meaning of section 2440, O.S.1931, 21 O.S.1941 § 1197, so as to require the landowners to properly guard such refuse by fencing or otherwise as against trespassing animals.

4. A demurrer admits the truth of all the evidence introduced and of all the facts which it tends to establish, as well as every fair and reasonable inference, and should be overruled, unless the evidence and all the inferences which a jury could reasonably draw from it are insufficient to support a verdict for plaintiff. But, where, from the facts shown by the evidence, and by reason of the applicable rules of law, reasonable men are not entitled to draw different conclusions, and the evidence fails entirely to show primary negligence, the court should sustain the demurrer and instruct a verdict in favor of defendant.

R. H. Wills, J. H. Crocker, J. P. Greve, J. H. Woodard, Oscar E. Swan, Jr., and Ben Hatcher, all of Tulsa, for plaintiffs in error.

Frank T. McCoy, John T. Craig, and Iohn R. Pearson, all of Pawhuska, for defendant in error.

WELCH, Justice.

J. E. Rhodes brought this action against Mid-Continent Petroleum Corporation, a corporation, Summit Drilling Corporation, a corporation, and E. F. Patrick, seeking damages for injuries to his cattle.

The plaintiff alleged injuries to his cattle resulting from their drinking of salt water and deleterious and poisonous substances wrongfully left open and exposed to plaintiff's cattle by the defendants; that defendants' acts resulting in said injuries were in violation of statutes; 21 O.S.1941 § 1197, and 52 O.S.1941 § 296. The defendants filed answer in general denial of all charged made by the plaintiff.

The plaintiff was the owner of an agricultural lease covering a large tract of land, (Osage Indian land), and plaintiff's cattle were being grazed upon the land when the defendants entered the premises and conducted drilling operations under and in accord with the terms of an oil mining lease executed by the Osage Tribe of Indians and approved by the Secretary of the Interior. Some of the plaintiff's cattle entered upon the grounds of the drilling site and partook of the substances contained in a slush pit maintained by the defendants in connection with their operations, and said cattle on entry onto the grounds of the drilling site were exposed to machinery oil droppings and spilled diesel fuel and cottonseed hulls and other substances shown in evidence to exist about the grounds of the drilling site. Near the close of the drilling operation some of the plaintiff's cattle died and some of his cattle took on an appearance of drawn skin and ruffled hair and continued in such appearance, and thereafter failed to make gains in weight and fatness as other cattle maintained on equal pasturage and care.

Witnesses, who testified to experience in handling cattle in oil fields, gave testimony that plaintiff's cattle, as had died, and plaintiff's cattle as had appearance of drawn skin and ruffled hair and sub-normal weight, had symptoms common to cattle as had partaken of salt water and pollutions from oil drilling operations. Such witnesses and others gave testimony concerning the market value of such animals and normal animals and there was testimony concerning the market value of the cattle as had died.

The jury found for the plaintiff and fixed a certain amount that he should have and recover from defendants. Judgment was entered in accord with the verdict.

Defendants contend the trial court erred in overruling defendants' demurrer to plaintiff's evidence and defendants' motion for directed verdict.

Long prior to the date plaintiff acquired his lease of the land for pasturage purposes, and before defendants had acquired their oil mining lease, the oil rights in the land were reserved to the Osage Tribe of Indians by Act of Congress. Act Cong. June 28, 1906, §§ 2, 3, 34 Stat. 539, as amended by Acts March 3, 1921, 41 Stat. 1249, March 2, 1929, 45 Stat. 1478. The plaintiff held his lease subject always to the exclusive right of the Osage Tribe or its assigns to explore for and to produce oil. Defendants, as holders of an oil mining lease from the Osages, owned an estate in the land for purpose of exploring for oil and possessed exclusive right to use so much of the leased premises as was reasonably necessary in the operation of drilling for oil. (The lease in its terms provided that location-site for drilling a well should not exceed 1 1/2 acres of surface land, and in fact defendants' operations were confined to an area of less than 1 1/2 acres.)

The plaintiff's cattle entering upon the location-site of the drilling well, and upon the premises in use by the defendants as was reasonably necessary in their operation in drilling for oil, were in law trespassers. Pure Oil Company v. Gear, 183 Okl. 489, 83 P.2d 389, 390.

Herein there was no evidence that defendants maintained slush pits or machinery or kept or left foreign substances in an area beyond what was reasonably necessary to their drilling operation, or that defendants used premises and maintained their operations otherwise than in usual and customary manner consistent with the purposes contemplated by the oil mining lease.

In the Pure Oil Company case, supra, in the syllabus, said the Court:

'1. Under the ordinary oil and gas...