Morriss v. Barton

• Decision Date: 23 September 1947
• Docket Number: 32564.
• Citation: 190 P.2d 451,200 Okla. 4,1947 OK 260
• Parties: MORRISS et al. v. BARTON.
• Court: Oklahoma Supreme Court

190 P.2d 451

200 Okla. 4, 1947 OK 260

MORRISS et al. v. BARTON.

No. 32564.

Supreme Court of Oklahoma

September 23, 1947

Rehearing Denied Jan. 27, 1948.

Second Petition for Rehearing Denied March 9, 1948.

Appeal from District Court, Creek County; C. O. Beaver, Judge.

Action by Elizabeth Barton, originally commenced against S.W Anthony and revived against Gordon Morriss and others, as the executors of S.W. Anthony, deceased, to recover for willful destruction of production from an oil and gas lease and for negligent operation of the lease. Judgment for plaintiff, and defendants appeal.

Affirmed as modified.

Syllabus by the Court.

1. Rulings on motions and demurrers, made before trial, do not involve errors of law occurring at the trial and may not be considered on appeal unless presented to the trial court by motion for new trial.

2. Lessee of an oil and gas lease, who owns adjoining land, may not operate wells on his own land, contrary to duty devolved upon him as lessee, so as to materially reduce or effectively destroy production from wells on the leased land.

3. Witnesses who have had long actual experience in the operation of oil wells are competent to testify concerning the actual or probable production of wells in an oil field of which they have knowledge.

4. The ultimate issuable facts only, as distinguished from evidentiary facts and conclusions of law, must be pleaded. Probative facts requisite to prove ultimate facts need not and should not, be pleaded.

5. Presentation of a contractual claim to executor or administrator is requisite to maintenance of action on such claim against the estate of a deceased person, but such demand is unnecessary for recovery of damages for tort committed by deceased in his lifetime.

6. Whether an action sounds in tort or arises ex contractu must be determined by the nature of plaintiff's grievance rather than the form of the pleading.

7. Although a contractual relation may exist between parties, nevertheless a tort may arise in the course of performance under contract so that a breach of the contract may not be, but an intentional wrong may be the gravamen of an action. The contract in such case is the mere incident creating the relation furnishing the occasion for the tort and giving rise to an action ex delicto remediable in an action on the case.

8. In an action for damages by an oil and gas lessor against lessee, for the willful damage and destruction of wells on the leased premises, where defendant dies before trial, although the action is revived, the estate is not liable for punitive or exemplary damages.

John R. Miller, L. O. Lytle, and Roy T. Wildman, all of Sapulpa, for plaintiffs in error.

Finch & Finch, of Sapulpa, for defendant in error.

RILEY Justice.

This action was commenced January 9, 1943, by Elizabeth Barton against S.W. Anthony to recover damages for willful destruction of production from an oil and gas lease and for negligent operation of the lease. The land was owned by plaintiff and leased to Anthony for the production of oil and gas.

On January 17, 1944, after answer was filed, defendant S.W. Anthony died. The action was revived as against the executors of his estate.

The land consists of the north 13.84 acres of Lot 1, Sec. 4, Twp. 16 N., R. 12 E. in Creek County. On April 27, 1936, plaintiff executed and delivered to S.W. Anthony an oil and gas lease to the land. Production from a well in a shallow sand was reserved to lessor without right to drill to the lower formation. That well is not in controversy.

The leased land lies along the south side of the north line of Twp. 16. The land is 80 rods in width and approximately 27 rods in depth. The township line between Townships 16 and 17 N. is a correction line, so that 204.6 feet of the SE 1/4 SE 1/4, Sec. 33, Twp. 17 N. lies directly north of the east 204.6 feet of plaintiff's land. The other portion of plaintiff's land lies south of the SW 1/4 SE 1/4, Sec. 33, Twp. 17 N. known as the Bennie Gilcrease land. All of the NE 1/4, Sec. 4, Twp. 16 N., except the 13.84 acres owned by plaintiff, is known as the Upton Tract.

S. W. Anthony owned the W 1/2 and NE 1/4 of N.W. 1/4, Sec. 3, Twp. 16 N., known as the Whetstone Tract, the north part of which lies directly east of plaintiff's land.

Sinclair-Prairie Oil Company, in 1936, held oil and gas leases to the Bennie Gilcrease land and the Upton Tract. At that time, S.W. Anthony and C. D. Clingensmith, or Clingensmith Oil Company, held oil and gas leases to the Tom Gilcrease Tract (SE 1/4 Sec. 33, Twp. 17) mentioned in the record as the Clingensmith Lease. S.W. Anthony thereafter conveyed his interest in the Clingensmith Lease to his brother, Frank A. Anthony.

Sinclair-Prairie drilled its Well No. 1 in April, 1936. It is located near the southwest corner of the Bennie Gilcrease land and 300 feet north and a short distance east from the northwest corner of plaintiff's land. Sinclair No. 1 entered the Wilcox Sand, found in formation at a lower depth. While Sinclair No. 1 was being drilled, plaintiff executed the oil and gas lease on her land to S.W. Anthony. The well so deepened by Sinclair-Prairie produced from the Wilcox Sand. Immediately thereafter S.W. Anthony drilled Barton No. 1 on plaintiff's land. It is located 250 feet east of the West boundary and 200 feet south of the north boundary. Barton No. 1 also produced from the Wilcox Sand.

Thereafter S.W. Anthony drilled Barton No. 2 near the center of plaintiff's land, and Barton No. 3 240 feet west of plaintiff's east boundary. Sinclair-Prairie then drilled approximate offsets to each of the three Barton wells. Whereupon Anthony drilled Anthony No. 2 on the Whetstone lease as an offset directly east of Barton Well No. 3. This well is located 250 feet east of plaintiff's east boundary. He also drilled Anthony No. 1, a diagonal offset to the southeast, and later drilled three or four wells farther east on the Whetstone Tract, owned in fee by Anthony. C. D. Clingensmith, or Clingensmith Oil Company, drilled Well No. 1 on the Tom Gilcrease Tract 500 feet north and slightly east of Barton No. 3, and later Wells 2, 3, 4, and 5 farther north and east on said tract were drilled. Sinclair-Prairie drilled three wells farther north on the Bennie Gilcrease land.

All the above wells produced from the Wilcox Sand until sometime in 1938. In that year all the Sinclair-Prairie wells on the Upton Tract were plugged and Sinclair-Prairie surrendered its lease. Shortly thereafter the wells farther to the north and west, on the Bennie Gilcrease Tract, were plugged, and on November 1, 1940, Barton No. 1 was plugged.

About April 16, 1940, at the direction of S.W. Anthony, his employees ran 90 or 93 sacks of quick-setting cement in Barton No. 3 Well. This well had been drilled 20 feet into the Wilcox Sand. Cement so run sealed Barton No. 3 11 feet above the oil producting stratum; it never thereafter produced. Barton No. 2 was pulled and plugged in the summer of 1943.

Plaintiff alleged that defendant Anthony owned the fee or oil and gas leases covering all the land surrounding plaintiff's land; that Wells Nos. 1, 2, and 3 on her land came in with higher initial production than any other wells drilled in that field; that the thickness of the sand was as great or greater in plaintiff's land than in any of the surrounding wells; that the porosity and saturation of the sand were equal to or better than in the surrounding wells; that within this small pool all of plaintiff's wells were on the high, thick, and most prolific portion of the structure and would have produced as much or more oil than any of the surrounding wells had they been properly operated. Defendant Anthony, it is alleged, because of his ownership of land and leases surrounding plaintiff's land, was negligent and careless in equipping and operating wells on plaintiff's land and did not obtain therefrom maximum production, but did produce adjacent wells in an efficient manner so as to drain the oil from plaintiff's land. On April 1, 1940, it is alleged, defendant shut down Barton No. 3 and never thereafter produced any oil therefrom; that Barton No. 3 then had a potential capacity as high as the offset well to the east on defendant's land; that defendant's said offset well had, after April, 1940, produced approximately 71,000 barrels of oil of the value of $1.10 per barrel; and except for the closure of Barton No. 3 plaintiff would have received in royalty from it the sum of $9,787.50, but plaintiff was so defrauded in the amount stated.

Similar allegations were made with reference to Well No. 2; the amount of plaintiff's loss attributed to that well was alleged to be $8,455. Like allegations were made with reference to Well No. 1; the amount of royalty lost to plaintiff from that well was alleged to be $4,950.

Plaintiff further alleged that Anthony's acts were accompanied by a willful design to drain the oil from plaintiff's premises; that his conduct was gross and wanton. Plaintiff prayed for punitive damages in the sum of $10,000.

A motion to make an additional party plaintiff and to strike allegations from the petition was in part overruled; a part of the motion to make more definite and certain was sustained.

The petition was amended; motion to strike and demurrer to the amended petition were overruled.

Defendant answered and amended, and unsucessfully renewed motions and sought to dismiss all of the action.

On January 31, 1944, suggestion of the death of defendant, S.W Anthony, was filed. The action was revived and admended as against the executors. The coexecutors, as defendants, with leave, pleaded the statute of limitations as to the plugging of Barton No. 3, set up in detail ownership of the land and leases...