Montet v. Nicklos Drilling Co.
| Decision Date | 11 December 1961 |
| Docket Number | No. 399,399 |
| Citation | 135 So.2d 805 |
| Parties | William J. MONTET et al., Plaintiffs-Appellants, v. NICKLOS DRILLING COMPANY et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Marion W. Groner, New Iberia, for plaintiffs-appellants.
Voorhies, Labbe , Voorhies, Fontenot & Leonard, by Donald Labbe , Lafayette, for defendants-appellees.
Before TATE, FRUGE and SAVOY, JJ.
This is a suit to recover the damages to the plaintiffs' 1960 rice crop allegedly caused by the release of harmful waste materials from an oil well drilling site. The plaintiffs are Montet, a tenant cultivating a 76-acre rice field on shares, and his landlords, the owners of the field. The defendants are the drilling company ('Nicklos'), its liability insurer, and the corporation which had employed Nicklos to drill the well.
At the trial it was proved that the 1960 yield of rice in the plaintiffs' field was only 9.1 barrels per acre, whereas the yield in other fields in the vicinity was at least from 15--20 barrels per acre. The District Court dismissed the plaintiffs' suit, however, apparently holding (untranscribed oral reasons only were assigned) that the plaintiffs had not proved by a preponderance of the evidence that this undoubted crop loss was caused by Nicklos' release of harmful substances from its drilling site.
The plaintiffs appeal from this dismissal of the suit. The principal issue before us is the factual qustion of whether the evidence proves that Nicklos' employees released into Montet's irrigation canal any substances which caused the damaging of his 1960 rice crop.
The plaintiffs' able counsel makes out an extremely strong circumstantial case for the affirmative. This 76-acre field alone of the farms in the vicinity, including four other tracts farmed by Montet, suffered such a crop loss; although the ultimate source of the water used to flood all of these fields was the same, the Boston Canal. Further the employees of Nicklos did in fact pump the contents of their 'reserve' or waste pit into the irrigation canal from which Montet drew his water, during the time that he was first flooding his rice field preparatory to planting. The water Nicklos then emptied into the canal was reddish colored; afterwards, Montet's field was covered with a reddish residue. The rice planted in this field shortly after this flooding did not grow well and much of it sickened and died, resulting in the substantial loss of Montet's rice crop. Much of the reddish-colored drilling mud used by Nicklos did in fact contain substances harmful to young rice.
Defendants contend, however, that this undoubted loss of the Montet rice crop was not due to any harmful substance in the water pumped from the drilling site reserve pit, relying upon chemical analyses of the contents before and after the pumping and upon the testimony of certain employees that no salt-impregnated drilling mud or other harmful chemical substance had been placed into or pumped from the reserve pit. Defendants also rely upon certain testimony which, it is urged, proves that the damage to the plaintiffs' crop was caused by salt water intrusion up through the Boston Canal from the marshes on the Gulf of Mexico to the south, as well as by the lack of rainfall and by Montet's failure to flood his crop for two months after the planting.
For the initial flooding of his field Montet pumped his water from an irrigation canal about a mile in length, the source of the water for which was the Boston Canal to the southwest of the plaintiffs' field. Montet drew his water from a point on the Boston Canal designated as 'A' on a plat found in the record.
The contents of the defendants' reserve pit were pumped into Montet's irrigation canal approximately midway between Montet's pump (at the northern end of the irrigation canal) and point 'A' on the Boston Canal, which was about a mile southwest of the pump. Anything harmful released into the irrigation canal by the defendants from their drilling site would thus have been drawn up by Montet's pump along with the waters from Boston Canal, and then spread over Montet's field.
Montet commenced flooding his land on May 17, 1960. Before doing so on that day, he chemically tested the water at the pump-site, and again on the following morning at the same place. On both of these occasions the water's salt content (24 grains per gallon) was within safe limits. On May 19th or 20th he noticed a reddish coloring of the water which was being pumped from the Nicklos drilling site, but he was then assured by the tool pusher (supervisor) in charge that the water being pumped by Nicklos into Montet's irrigation canal and thence onto his field was harmless to rice. Montet continued flooding his field until May 24th. He planted his rice by air on June 1st, draining the field the following day.
On June 8--9 he noticed his rice was growing poorly, so he again flushed his land with water from the Boston Canal; but this time by another irrigation ditch, drawing the water from the Canal (at a point designated as 'R' on the plat in the record) approximately a mile north of the source on the Canal (i.e., point A) for the water for his earlier flooding. He tested the Canal water (however, at a boat landing yet another mile north of point R, the source of this second flooding of June 8--9), and he again found it safe.
This second flooding did not improve the condition of the young rice seedlings. They continued to turn yellow and to die. At this point Montet noticed that his field was colored with a reddish residue suggestive of drilling mud. He reported it to the County Agent's office, which called in an inspector from the Louisiana Stream Control Commission, an agency with the statutory responsibility for policing the pollution of waters by industrial and other wastes.
Montet's field was inspected by this official on June 14th and again on June 17th, the inspector being accompanied by the local agriculture teacher on the former occasion and by the inspector's supervisor on the latter. These disinterested officials tested some residue water still on Montet's field and found that it tested at 72--73 grains per gallon and had an 8.6 pH value 1, indicating an excessive saltiness and alkalinity of the water to a degree harmful to germinating rice.
On June 24th the Stream Control inspectors took samples from Montet's field and sent them to the laboratory at Louisiana State University for analysis. Chemical analysis of these samples showed that the top one inch was saturated with salt to an extent harmful to germinating and growing rice; although the pH value of the soil was normal. These governmental employees further observed visually the reddish discoloration of Montet's field, suggestive of drilling mud, as did Montet and various other farmers in the vicinity who testified. A white salt encrustation was also visually observable, at least in some areas of the field.
The preponderance of the expert evidence introduced by both sides indicates that a salt content in excess of 35 to 40 grains per gallon in the irrigating water would be harmful to young rice, as would an alkalinity evidenced by more than a 7.5 to 8.0 pH value. Thus the substances contained in the residue water on Montet's field tested by the Stream Control inspectors on June 14th and 17th undoubtedly were sufficient to cause the damage sustained by Montet's 1960 rice crop.
The question, of course, is whether the plaintiffs have proved that these harmful substances were released into Montet's irrigation canal by the Nicklos drilling crew. Breaux v. Magnolia Petroleum Co., La.App. 3 Cir., 131 So.2d 615. However, circumstantial proof by reasonably excluding other possible causes of the crop loss is sufficient. Tuten v. Shell Oil Co., La.App. 1 Cir., 26 So.2d 757.
The defendants' primary defense is that they have proved that no harmful substances were contained in the water pumped by Nicklos from its reserve pit into Montet's irrigation canal. For, as one of the tool pushers admitted, the Nicklos employees had pumped into the Montet canal ; but he further stated, 'according to the mud test that we had run there wasn't anything (in the water in the reserve pit pumped into the canal) that would hurt his rice.' Tr. 212.
The basis for this defense is that a mud engineer had tested the water in the reserve pit on May 14th, before it was released into the irrigation canal, and found that it had a safe salt content of less than 20 grains per gallon and a normal (6.7 to 7.0) pH test. After Montet's complaint, another mud engineer tested the water in the reserve pit on May 24th and again found it well under 20 grains per gallon (although, strangely enough since the complaint was of drilling mud pollution, he made no pH test at that time, Tr. 270); at this time the engineer also checked the water in Montet's irrigation canal opposite the drilling site, which was about one-half mile northeast of the Boston Canal, and found that This water had a sale content of 51.4 grains per gallon (Tr. 265), or well Above the limits safe for young rice.
The two tool pushers and the two mud engineers employed during this time at the Nicklos drilling site all testified...
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