Mid-Continent Petroleum Corp. v. Fisher

• Decision Date: 04 October 1938
• Docket Number: Case Number: 28365
• Citation: 84 P.2d 22,183 Okla. 638,1938 OK 483
• Parties: MID-CONTINENT PETROLEUM CORPORATION v. FISHER
• Court: Oklahoma Supreme Court

1938 OK 483

84 P.2d 22

183 Okla. 638

MID-CONTINENT PETROLEUM CORPORATION v. FISHER

Case Number: 28365

Supreme Court of Oklahoma

Decided: October 4, 1938

Syllabus

¶0 1. DAMAGES - Measure of Damages Where Damage to Land Is Permanent.

Where damage to land is permanent, the measure of damages is the difference between the fair cash market value of the land immediately before the damage and immediately thereafter.

2. SAME - Rule of Damages Determined by Whether Damage Rather Than Cause of Damage Is Permanent or Temporary.

Either the damage to the land or the cause of the damage can be permanent or temporary in the legal sense; the rule of damages applicable in a given case is determined by whether the damage suffered is permanent or temporary, rather than whether the cause of the damage is permanent or temporary.

3. NUISANCE - Permanent Damage to Realty Resulting From Temporary Nuisance.

Permanent damage to realty can result from a temporary and abatable nuisance.

4. APPEAL AND ERROR - Review - Verdict Attacked on Ground of Excessive Damages.

When a verdict is attacked on the ground that it is excessive, this court will not disturb the same unless the jury has committed some gross and palpable error, or acted under bias, influence or prejudice, or has totally ignored the rule of law by which damages were to be determined.

5. APPEAL AND ERROR - Necessary Showing of Prejudice From Admission of Incompetent Evidence.

Before a judgment will be reversed on account of the admission of incompetent evidence, it must affirmatively appear that the admission of such evidence probably resulted prejudicially to the interests of the one making the objection thereto.

6. SAME - Conclusiveness of Verdict Supported by Competent Evidence.

Where there is competent evidence reasonably tending to support the finding of a jury on a controverted issue of fact, a determination of said issue of fact by the jury will not be disturbed on appeal.

Appeal from District Court, Seminole County; H.H. Edwards, Judge.

Action by O.L. Fisher against the Mid-Continent Petroleum Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

J.C. Denton, R.H. Wills, J.H. Crocker, J.P. Greve, I.L. Lockewitz, and R.J. Roberts, for plaintiff in error.

Geo. C. Crump and H.W. Carver, for defendant in error.

OSBORN, C. J.

¶1 O.L. Fisher sued the Mid-Continent Petroleum Corporation for damages to realty resulting from oil field pollution. Upon trial the jury returned a verdict in his favor in the sum of $600, and the trial court rendered judgment thereon. The Mid-Continent Petroleum Corporation appeals from that judgment. We shall hereafter refer to the parties as they appeared in the trial court.

¶2 Plaintiff was the owner of a 40-acre tract of land through which a creek flowed. The defendant drilled several oil wells on the watershed of said creek above plaintiff's land and the salt water and oil from these wells polluted the creek. Plaintiff alleged that the creek had overflowed his land several times since becoming polluted with salt water and oil sediment, and that as a result the fertility of his soil and a number of pecan trees had been destroyed. Plaintiff sought and recovered permanent damages, but in his petition alleged that the nuisance created by the defendant in permitting said salt water and oil to escape into the creek was temporary and could be abated. Upon trial the defendant admitted polluting the creek, but contended that plaintiff's land had not been permanently damaged. We shall discuss the evidence and the court's instructions in conjunction with the defendant's assignments of error.

¶3 The defendant's first assignment of error is that the trial court erroneously instructed the jury as to the measure of damages. The court instructed the jury that the measure of plaintiff's damages, if any, was the difference between the fair cash market value of the land prior to pollution, if the same was polluted, and the fair cash market value of the land thereafter. The defendant contends that the proper measure of damages was the loss of use or rental value sustained by the plaintiff to the date of filing the suit because the nuisance, which caused the damage, was abatable, and "a temporary injurious condition will not support a judgment for permanent damage to realty." However, this court has heretofore held that permanent damage can result from a temporary and abatable "injurious condition." Oklahoma City v. Page, 153 Okla. 285, 6 P.2d 1033; Mid-Co Gasoline Co. v. Back, 95 Okla. 29, 217 P. 1041; Commercial Drilling Co. v. Kennedy, 172 Okla. 475, 45 P.2d 534.

¶4 The rule of damages stated by the defendant is a correct rule when applied to the proper factual situation, and has been followed by this court when the damage suffered was temporary and susceptible of being remedied by the expenditure of money or labor. City of Cushing v. High, 73 Okla. 151, 175 P. 229; City of...