Niagara Oil Co. v. Jackson

• Decision Date: 18 May 1910
• Docket Number: No. 6,623.,6,623.
• Citation: 48 Ind.App. 238,91 N.E. 825
• Parties: NIAGARA OIL CO. v. JACKSON et al.
• Court: Indiana Appellate Court

48 Ind.App. 238

91 N.E. 825

NIAGARA OIL CO.

v.JACKSON et al.¹

No. 6,623.

Appellate Court of Indiana, Division No. 1.

May 18, 1910.

Appeal from Circuit Court, Delaware County; James G. Leffler, Judge.

Action by Charles Jackson and another against the Niagara Oil Company. Judgment for plaintiffs, and defendant appeals. Affirmed.Simmons & Dailey, L. B. Simmons, and F. A. Shaw, for appellant. Thompson & Thompson, for appellees.

HADLEY, J.

The appellees were owners as tenants by entireties of a tract of land in Randolph county, Ind. The appellant was the owner of an oil and gas lease on an adjacent tract. The appellee Charles Jackson instituted this action against the appellant to recover damages for injuries claimed to have been caused to said real estate by salt water from appellant's said lease. A change of venue was taken to the Delaware circuit court, in which court, on motion of Charles Jackson and on petition by her, Cora B. Jackson was made a party plaintiff. The amended complaint, upon which the case was tried, avers, in substance, that Orlie Jones owns a tract of land in Randolph county; that appellees' land adjoined the Jones land on the east; that the Jones land was higher and sloped towards the land of appellees, and that the surface water on the Jones land naturally flowed down upon the land of appellees; that Jones leased his land to appellant for the purpose of producing gas and oil; that appellant put down thereon a great number of wells to a great depth and pumped, and continues to pump, therefrom large quantities of oil and water strongly impregnated with salt and other noxious and poisonous minerals, which it discharged upon said land, and pumped great quantities of oil and water impregnated as aforesaid, into tanks on said land, and carelessly, negligently, and wrongfully permitted said water and oil to be discharged from said tanks, and carelessly, negligently, and wrongfully permitted said water, so pumped onto said land and discharged from said tanks, to flow down upon appellees' land and form a pond near appellees' house and home, thereby destroying the vegetation, rendering the land sterile and the habitation of appellees unhealthy and uncomfortable; that at an inconsiderable cost appellant could have prevented said water and refuse oil from so flowing upon appellees' land and could have cared for said water and oil without injury to to appellees or other citizens. To this complaint appellant demurred for want of facts, which demurrer was overruled.

Appellant answered in three paragraphs: The first, a general denial. The second, after admitting the putting down of the wells and the operation of the same, as charged, avers that said wells were drilled to the proper and ordinary depth for the production of oil; that said oil was produced in the most skillful way; that said wells were operated in the proper and most skillful manner for the production of oil; that appellant was never guilty of any negligence in the operation of said wells, or in the production of oil therefrom, or allowing oil or salt water to escape; that said water, when produced, was allowed by appellant to flow upon the ground, and was allowed to seek its course and escape by its own volition; that it coursed its way by its own volition and went upon the lands of appellees, because the lands upon which appellant was operating its said wells were higher than the land of appellees; that there were no modes or methods by which oils could be produced from said wells without the production of salt water; that said wells could not be operated for oil unless said salt water was allowed to run on the lands of appellees; that any damage thereby caused was absolutely necessary and could not be avoided by appellant; that appellant had no malice or intention to injure appellees.

Appellant insists that the complaint is insufficient for the reason that what it did was necessary in the exercise of its rights under the lease; that nature had placed the oil there, and there it had to be taken out, and, if in so doing appellant incidentally injured another, it was the other's misfortune, for which he was entitled to no recompense. We cannot affirm this doctrine. One is entitled to a reasonable use of his property, even if such reasonable use incidentally injures his neighbor; but, to avoid liability for such injury, such use must be reasonable. Ohio Oil Co. v. Westfall, 43 Ind. App. 661, 88 N. E. 354;C. & H. C. & I. Co. v. Tucker, 48 Ohio St. 41, 26 N. E. 630, 12 L. R. A. 577, 29 Am. St. Rep. 528.

Sic utere tuo alienum non lædas-“So use thine own that another you may not injure” -is an ancient rule of property well established in authority and equity; but it has been greatly circumscribed in later years by the influence of selfish greed under the mask of pro bono publico. However, we are of the opinion that enough of the rule remains to prevent one from so using his property for his profit as to practically confiscate or destroy his adjoining neighbor's property where, as here averred, such injury could be prevented at an inconsiderable cost. And if he does so use his property under such circumstances and inflicts such injury, he should be compelled to respond in damages, for it can hardly be said that such a use is a reasonable one. Pfeiffer v. Brown, 165 Pa. 267, 30 Atl. 844, 44 Am. St. Rep. 660; Ohio Oil Co. v. Westfall, supra; Cahill v. Eastman, 18 Minn. 324 (Gil. 292)10 Am. Rep. 184; Fletcher v. Rylands, 1 Exchq. (L. R. S.) 263.

In the case last cited, which is the leading case on this subject, the rule is laid down as follows: “We think that the true rule of law is that the person, who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. *** It seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this, we think, is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.”

Appellee's land is servient to the surface flowage of the Jones land, which nature casts upon it, contaminated by deleterious matter, with which a reasonable use of the Jones land might impregnate it; but it is not servient to an unreasonable artificial surface flowage, or to surface flowage collected into artificial channels and cast upon it. Pfeiffer v. Brown, supra; Anderson v. Drake (S. D.) 123 N. W. 673;Templeton v. Voshloe, 72 Ind. 134, 37 Am. Rep. 150;City of Garrett v. Winterich, 87 N. E. 161; Buchanan's Trustees v. Montgomerie & Fleming, 2 Stuart, 519; Bellows v. Sackett, 15 Barb. (N. Y.) 96; Smith v. Fletcher, 7 Exchq. (L. R. S.) 305; Fletcher v. Rylands, supra.

The principle governing the cases of Barnard v. Sherley, 135 Ind. 547, 34 N. E. 600, 35 N. E. 117, 24 L. R. A. 568, 41 Am. St. Rep. 454,Weston Paper Company v. Pope, 155 Ind. 394, 57 N. E. 719, 56 L. R. A. 899, and Penn Coal Company v. Sanderson, 113 Pa. 126, 6 Atl. 453, 57 Am. Rep. 445, is not applicable. In each of those cases the injury was caused to riparian owners by the contamination of water in water courses. Such water courses are in the nature of natural sewers to carry off accumulated waters and deleterious substances, and riparian owners take their position on the banks of water courses with notice that such position is superior to those below them and inferior to those above them, and that farms, cities, and villages may gather along its banks, and that impurities incident to population, trades, and agriculture that fall upon the surface will in some way be cast into the stream and their enjoyment of it thus modified. City of Valparaiso v. Hagen, 153 Ind. 337, 54 N. E. 1062, 48 L. R. A. 707, 74 Am. St. Rep. 305.

A city may, under certain circumstances, when necessary for the purpose of sanitation, discharge its sewage into a natural water course, and thus render its pure waters impure, to the injury of lower riparian owners, without liability for such injury. City of Richmond v. Test, 18 Ind. App. 482, 48 N. E. 610; City of Valparaiso v. Hagen, supra.

The development of the country and the rapid growth of cities and towns, with their consequent accumulation of filth and sewage, which is being cast into the ponds, streams, and water courses, to the great danger of the public health, has produced a condition that calls for a restriction, if not an abridgement, of the rules laid down in Richmond v. Test and Valparaiso v. Hagen, supra. And in this connection attention is called to an act for the protection of streams, enacted by the General Assembly of 1909. See Acts 1909, p. 60. But notwithstanding the various enlargements in other respects of the general rule, the law still is that a city has not the right to collect its surface and subterranean waters into sewers, impregnate it with its filth and sewage, and cast it upon the surface...