Midland Oil Co. v. Thigpen
Decision Date | 23 March 1925 |
Docket Number | No. 6469.,6469. |
Citation | 4 F.2d 85 |
Parties | MIDLAND OIL CO. v. THIGPEN et al. |
Court | U.S. Court of Appeals — Eighth Circuit |
S. N. Hawkes, of Bartlesville, Okl. (H. O. Caster and Hayes McCoy, both of Bartlesville, Okl., and George A. Henshaw and A. C. Hough, both of Oklahoma City, Okl., on the brief), for plaintiff in error.
Frank T. McCoy, of Pawhuska, Okl. (A. M. Widdows, of Pawhuska, Okl., and J. R. Spielman, of Oklahoma City, Okl., on the brief), for defendants in error.
Before STONE and LEWIS, Circuit Judges, and PHILLIPS, District Judge.
A. J. Thigpen and A. J. Thigpen, Jr., members of a copartnership, hereinafter called plaintiffs, brought this action against Midland Oil Company, hereinafter called Midland Company, and Fred O. Davis, to recover damages for alleged injuries to cattle owned by the copartnership.
The Midland Company was the owner of a departmental oil and gas lease dated January 24, 1916, running from the Osage Tribe of Indians to the Midland Company, and covering the N. E. º of section 17, township 24 N., range 9 E.
Paragraphs 16, 19, and 20 of the lease read as follows:
Sections 21 and 61 of the Regulations of the Secretary of Interior, approved August 26, 1915, read as follows:
Section 45 of the Regulations of the Secretary of Interior approved August 26, 1915, as amended May 13, 1919, reads as follows:
The plaintiffs were the owners of three agricultural leases, running from members of the Osage Tribe to the plaintiffs, covering lands located in sections 17, 18, and 19, township 24 N., range 9 E., and lying adjacent to the tract of land covered by the oil and gas lease.
The oil and gas lease required the Midland Company to drill a well on the leased premises to the Mississippi lime unless oil or gas should be found in commercial quantities at a lesser depth.
On November 28, 1919, the Midland Company entered into a contract with its codefendant, Davis. This contract described the above-mentioned oil and gas lease, and recited that the Midland Company was the owner of mining leases covering adjoining lands, and was desirous of having the same tested for oil production, and provided:
It further provided: That Midland Company should pay the rentals on the oil and gas lease falling due prior to the completion of the well and that Davis should reimburse it therefor on the execution and delivery of the assignment; that upon the failure of Davis either to commence the well within the time fixed by the contract or to prosecute the drilling thereof with due diligence, his rights under the contract should terminate; and that Davis should not acquire any interest in the lease until the assignment above referred to had been executed and delivered with the approval of the Secretary of the Interior.
This contract was approved by S. G. Hopkins, Assistant Secretary of the Interior.
Davis entered into a contract with one Martin, a drilling contractor, to drill the oil well. This contract provided that Davis should construct the derrick, rig, and slush ponds, and that Martin should furnish the tools and other equipment and drill the well at a certain price per foot. Davis constructed the derrick, rig, and one slush pond.
On February 10, 1920, Martin began the drilling of an oil well on the lease. About February 29, 1920, he encountered salt water; he bailed out about 75 barrels of the salt water and deposited same in the slush pond. This amount more than filled the slush pond and about 50 barrels of the salt water escaped and ran down into a creek which runs through the lands of plaintiffs. The cattle of plaintiffs drank this water, with the resultant injuries for which damages are sought in this action.
The Midland Company had nothing whatever to do either with the construction of the slush pits, the drilling of the oil well or the permitting of the salt water to escape. The alleged wrongful acts complained of were caused wholly by Davis and his drilling contractor, Martin.
The cause of action set up in plaintiffs' amended petition sounded in tort. Plaintiffs alleged therein, in effect: That the Midland Oil Company and Davis were guilty of negligence, in that they failed to comply with the rules and regulations of the Department of the Interior, the laws of the state of Oklahoma, and the regulations of the Corporation Commission of the state of Oklahoma with respect to providing slush ponds for the purpose of catching salt water and other poisonous substance coming from the oil well, and in that they negligently permitted salt water and other poisonous matter coming from the oil well to escape and flow down onto the lands leased by plaintiffs; and that as a result of the negligent acts of the Midland Company and Davis, plaintiffs were damaged in the particulars set out in their amended petition.
The trial resulted in a verdict for the plaintiffs in the sum of $4,292. Judgment was entered on the verdict and the Midland Company sued out a writ of error therefrom to this court.
At the trial the court instructed the jury in part as follows:
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