Murfee v. Phillips Petroleum Co.

• Decision Date: 21 February 1973
• Docket Number: No. 6214,6214
• Citation: 492 S.W.2d 667
• Parties: J. Louis MURFEE et al., Appellants, v. PHILLIPS PETROLEUM COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 667

492 S.W.2d 667

J. Louis MURFEE et al., Appellants, v. PHILLIPS PETROLEUM COMPANY et al., Appellees.

No. 6214.

Court of Civil Appeals of Texas,

El Paso.

Feb. 21, 1973.

Rehearing Denied March 21, 1973.

Evans, Pharr, Trout & Jones, Charles B. Jones, John A. Flygare, Lubbock, for appellants.

Griffis, Williams, Goodwin & Harrison, W. A. Griffis, Jr., San Angelo, Rassman, Gunter & Boldrick, Emil C. Rassman, Midland, E. M. Cage, Rufus N. McKnight, Jr., Dallas, Lloyd G. Minter, Kenneth Heady, c/o Phillips Petroleum Co., Bartlesville, Okl., Vinson, Elkins, Searls & Connally, Ben H. Rice, III, Houston, Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Harrell Feldt, Lynch, Chappell, Allday & Culp, Vann Culp, Joe V. Peacock, Legal Department, Phillips Petroleum Co., Midland, for appellees.

OPINION

WARD, Justice.

This is a water pollution case filed by the appellants as owners of the surface estate of a seven section ranch against the four appellees who were the oil and gas lessees and producers thereon. The action was for depreciated market value of the land, due to negligence and proximate cause for the salt water pollution of the underground water supply caused by the lessees' disposal of produced brine in unlined earthen surface disposal pits located on the seven sections. Trial was to a jury, and based upon the jury's findings to the 81 submitted special issues, judgment was entered by the trial Court that the plaintiffs-appellants take nothing. We affirm the judgment of the trial Court.

The seven sections are largely in Upton County though a portion of the property is in Reagan County. The original oil and gas lease, under which the lessees and operators acquired their interests, was executed in March, 1945, by B. Sherrod and his wife, as lessors. Partial assignments of the lease were thereafter acquired by appellees, Ashland Oil & Refining Company, Paul F. Barnhart, and Sunray DX Oil Company, Sun Oil Company being the latter's successor by merger. Oil was discovered under the lease in 1951 and the lessee operators drilled and completed some 35 oil wells on the property, mainly during the years 1951 and 1952. Commencing in 1951, some 17 unlined surface pits were constructed on the seven sections by these three appellees and were used to dispose of the oil field brines produced from the wells. Throughout the 1950's there was no market for produced brine, and the prevailing custom and practice in the area was to dispose of the salt water in surface pits. It is undisputed that during the period of oil operations on these lands that the defendants deposited between five to eight million pounds of pure salt into the various pits on the ranch.

Before the execution of the oil and gas lease and thereafter for many years, the surface of the land had been used only for grazing, which was the usual surface use of the land in that portion of Upton and Reagan Counties. About the year 1956, a surface tenant drilled a water well in the northeast quarter section of that section lying in the most northeasterly corner of the 4,480 acre ranch. This water well was drilled some 224 feet from a salt water disposal pit constructed and used originally by Paul F. Barnhart. The 160 acres in this quarter section was broken for cultivation and was farmed thereafter for two years, when the farm and the water well were abandoned. This so-called '1956 Sherrod irrigation well' was uncased and unplugged and remained as an abandoned well for approximately seven years, until November 15, 1963, when the plaintiffs below attempted to rehabilitate it and determined that its water was salty and was ruined for irrigation purposes. After November 16, 1963, and before the trial, the appellants had completed and their tenants had used four additional irrigation wells on this same northeast quarter section, each of which well is presently producing unpolluted water. In addition, two other water wells were completed on the ranch and these together with four existing windmill wells thereon are producing fresh water.

During July of 1962, the North Pembrook Sprayberry Unit was completed, and thereafter all operations on the seven section ranch were conducted by appellee, Phillips Petroleum Company, under the control and supervision of the working interest owners. For a period of more than a year thereafter and until a Railroad Commission 'no pit' order became effective, Phillips continued to dispose of salt water in some of the pits which had been constructed and used by Sunray, Ashland, and Barnhart. By deeds, dated December 10, 1962, and January 2, 1963, B. Sherrod and his wife conveyed to their daughter, Mrs. Murfee, and the three Murfee children the seven sections excepting and reserving to the grantors all oil, gas and other minerals, the conveyances being also made subject to all oil and gas leases. It was on November 15, 1963, that the plaintiff below, Mr. Murfee, tested the water in the 1956 Sherrod irrigation well and discovered that the well was salty. After discovering the pollution in this irrigation well, the appellants drilled three additional test wells by which they contended that they discovered additional salty and polluted subterranean water. These will be referred to as the Murfee test holes. The three test wells were drilled near the center of the sections lying to the west, the southwest and to the south of the section where the 1956 Sherrod water well was located. The appellees contend that these three test wells were purposely drilled near existing salt water disposal pits, that they were left uncased and unprotected and that it was through these uncased test holes that salt water also reached and polluted the fresh water.

The physical characteristics of the subsurface of the ranch are uniform and agreed upon. The top soil extends down to a depth of 6 feet. Beneath the top soil is then found a layer of caliche some 20 feet thick with approximately 30 percent porosity. Beneath the layer of caliche is a zone of limestone. This limestone barrier is approximately 100 feet thick over the entire ranch. It is beneath the limestone barrier that the Trinity fresh water sand is located. This sand is some 200 feet thick and is the only source of fresh water found under the ranch.

The crucial dispute concerned the nature of the 100 foot limestone barrier covering the Trinity fresh water sand. Appellants' hydrologists were of the opinion that the salt water deposited in all of the salt water pits was gradually penetrating and working its way down through the limestone barrier into the fresh water sand, and that there was an area of contaminated fresh water associated with each of the salt water pits which would progressively increase through the years. The hydrologists and geologists for the appellees maintained that the layer of limestone acted as an impenetrable and impervious barrier over the entire ranch and fully protected the Trinity fresh water sands. They were of the opinion that the salt water placed in the disposal pits became permanently lodged in the layer of porous caliche beneath the general area of each pit; that the salt water would move laterally in the caliche above the limestone barrier, and some brine encountered the open uncased and unplugged 1956 Sherrod irrigation well and the three open and uncased Murfee test holes, and gravity then took the salt water down these open holes to the Trinity sands. The appellees' hydrologists were also of the opinion that had the 1956 Sherrod irrigation well and the three Murfee test holes been properly cased and cemented there would have been no contamination of the fresh water supply. As pointed out, the opinion testimony of the respective experts differed. However, they all agreed that except for the three Murfee test holes and the 1956 Sherrod water well there was no proven pollution on any part of the seven section ranch .

The appellants alleged the following acts of negligence against the appellees:

'A. The Defendants negligently permitted salt water to escape from their pits.

B. The Defendants negligently permitted salt water to penetrate into the sub-surface fresh water strata of Plaintiffs' land.

C. The Defendants negligently permitted salt water to collect in surface pits from which they knew, or in the exercise of ordinary care, should have known, such salt water would escape and percolate into and pollute Plaintiffs' fresh water supply.

D. The Defendants negligently failed to adopt any effective method of disposing of their salt water to prevent pollution of fresh water stratas.

E. The Defendants negligently permitted salt water to drain onto Plaintiffs' land and pollute fresh water stratas.

F. The Defendants in so disposing of salt water in open, unlined, surface salt water disposal pits that would not hold and retain water and thereby allowing it to percolate and to seep into and pollute the sub-surface strata and water sands, violated Rule 20 of the Railroad Commission of Texas which was duly adopted promulgated and published by said Commission and became effective on October 17, 1933, which rule reads as follows:

'Fresh water, whether above or below the surface, shall be protected from pollution, whether in drilling, plugging or disposing of salt water already produced.'

That the violation of such rule constitutes negligence both at common law and negligence per se, and negligence as a matter of law.'

In addition to these acts of ordinary negligence, Phillips Petroleum was alleged to have committed gross negligence by disposing of the salt water after November, 1963, and after being advised by the appellants that pollution was occurring.

Among the defenses raised by the appellees, they pled generally the contributory negligence of the appellants and of their predecessors in maintaining the 1956 Sherrod irrigation well and the three test holes as open, uncased and uncemented holes, thereby permitting the salt water to escape from the...