Niagara Oil Company v. Ogle

• Decision Date: 03 April 1912
• Docket Number: 21,961
• Citation: 98 N.E. 60,177 Ind. 292
• Parties: Niagara Oil Company v. Ogle
• Court: Indiana Supreme Court

98 N.E. 60

177 Ind. 292

Niagara Oil Company v. Ogle

No. 21,961

Supreme Court of Indiana

April 3, 1912

From Henry Circuit Court; Ed. Jackson, Judge.

Action by Elijah Ogle against the Niagara Oil Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Affirmed.

Abram Simmons and Frank C. Dailey, for appellant.

Orr & Orr, for appellee.

OPINION

Morris, C. J.

Appellee in February, 1906, commenced this action against appellant for damages for nuisance, and to enjoin the maintenance thereof.

A demurrer to the complaint, for want of facts, was overruled. There was a trial by court, a special finding of facts, and conclusions of law thereon stated. Defendant excepted to each conclusion of law. Judgment for plaintiff for damages, and enjoining defendant from continuing the acts complained of.

Appellant vigorously assails the sufficiency of the complaint. It alleges, among other things, that appellee is the owner of a farm in Delaware county; that appellant is an oil company and is the owner of gas and oil leases of a farm owned by one Shaffer, lying south of and adjoining appellee's farm, and also of a farm owned by one Allison, which lies south of and adjoins the Shaffer farm; that appellant has bored wells 1,200 feet deep on the Shaffer and Allison farms, and equipped them with pumps, by means of which it has drawn large quantities of salt water and oil from said wells to the surface of the land, and has in no way confined them, but has permitted them to spread out over the Shaffer and Allison farms, and to run therefrom onto the land of appellee; that as a result thereof the oil and salt water have collected and stood on appellee's farm to a depth of from six to eighteen inches, and have rendered from fifteen to twenty acres of the farm unfit for cultivation, wet and unhealthful, and have killed the growing crops thereon, and have also killed a large amount of timber growing thereon.

It is further alleged that the water permitted to flow on appellee's land, as aforesaid, is salty and impure, and destroys the productive power of the land over which it flows, or on which it stands, and destroys the use of such land for agricultural purposes; that said impure water, which has been flowing onto appellant's land and standing thereon, did not, and would not, come to the surface by natural flow or means, but has been drawn to the surface, by appellant, by means of pumps.

It is further averred that in November and December, 1905, appellant collected and stored in tanks on the Shaffer and Allison farms, 500 barrels of oil, and permitted it to escape from the storage tanks and to flow over said farms onto appellee's farm, and to spread out over the farm, where it is still standing; that the oil and salt water standing on appellee's farm emit foul and noxious odors, and are dangerous to the health of plaintiff's family and to the community.

It is also alleged that, unless enjoined, appellant will continue to cause and permit oil and salt water to flow onto appellee's lands, and appellee prays that appellant be enjoined from flowing oil and water over and upon his land, and demands judgment for damages alleged to have been sustained already.

It is insisted that the complaint is defective because it contains no averment that plaintiff was free from contributory negligence, and no averment of facts showing that plaintiff could not have protected his property by exercising ordinary care.

This theory is untenable. This is not an action for damages for negligence, but for damages for the maintenance of a nuisance, and to enjoin or abate it. §§ 291-293 Burns 1908, §§ 289-291 R. S. 1881. In cases of this character, the rules governing the sufficiency of complaints for negligence have no application. Niagara Oil Co. v. Jackson (1911), 48 Ind.App. 238, 91 N.E. 825; City of Lebanon v. Twiford (1895), 13 Ind.App. 384, 41 N.E. 844; Williamson v. Yingling (1881), 80 Ind. 379; 29 Cyc. 1155.

Appellant's counsel also claim that the complaint is insufficient, because the use which appellant made of the lands was in the exercise of the lawful right of the superior proprietor, and detriment to appellee's lower land is damnum absque injuria; and, in support of this proposition, cites Pennsylvania Coal Co. v. Sanderson (1886), 113 Pa. 126, 6 A. 453, 57 Am. Rep. 445, and Barnard v. Sherley (1893), 135 Ind. 547, 34 N.E. 600, 35 N.E. 117, 24 L. R. A. 568, 41 Am. St. 454.

In the Sanderson case it was held that a coal mining company, which discharged from its mine, water that so polluted the mountain stream into which it flowed as to render the waters of the stream unfit for domestic purposes by the lower riparian owners, was not liable to the latter for the injury, in the absence of malice or negligence. The court held that the mining of coal was lawful, and could be prosecuted only where the coal is found, and that the enjoyment of the stream of water by the lower owners must ex necessitate give way to the interests of the community, in order to permit the development of the natural resources of the country, and to make possible the prosecution of the lawful business of mining coal.

Appellant contends that oil must be mined where found, and its mining is a lawful business, and the prosecution thereof requires that the owner of lower lying land must bear the burden of the annoyances and inconveniences necessarily resulting in the careful prosecution of the business.

In Barnard v. Sherley, supra, this court held that, under the facts in that case, a lower riparian owner could not recover from an upper proprietor for the pollution of a stream by contaminating the water of an artesian well which flowed into it. While the doctrine of the case of Pennsylvania Coal Co. v. Sanderson, supra, seems to have been approved to some extent in Barnard v. Sherley, supra, it has since been greatly limited by the Supreme Court of Pennsylvania. Hindson v. Markle (1895), 171 Pa. 138, 33 A. 74; Commonwealth, ex rel., v. Russell (1895), 172 Pa. 506, 33 A. 709; Keppel v. Lehigh Coal, etc., Co. (1901), 200 Pa. 649, 50 A. 302. It has been expressly repudiated in England, Ohio, New Jersey, Alabama and Tennessee. Young v. Bankier Distillery Co., [1893] App. Cas. 691; Straight v. Hover (1909), 79 Ohio St. 263, 87 N.E. 174, 22 L. R. A. (N. S.) 276; Beach v. Sterling Iron, etc., Co. (1895), 54 N.J. Eq. 65, 33 A. 286; Drake v. Lady Ensley Coal, etc., Co. (1893), 102 Ala. 501, 14 So. 749, 48 Am. St. 77, 24 L. R. A. 64; H. B. Bowling Coal Co. v. Ruffner (1906), 117 Tenn. 180, 100 S.W. 116, 9 L. R. A. (N. S.) 923, 10 Ann. Cas. 581, note p. 587.

In the last cited case, the court said: "We are of opinion that the doctrine announced in Pennsylvania Coal Co. v. Sanderson, supra, is opposed by the great weight of authority in this country and in England, and is in our judgment subversive of fundamental private rights while it discards, discredits, and discrowns the honored principle of the common law embodied in the maxim 'sic utere tuo ut alienum non laedas.'"

In Straight v. Hover, supra, the Supreme Court of Ohio said: "The Sanderson case was a manifest departure from the rule of law often stated, and generally regarded as well settled, that although there is a servitude upon the lower proprietor to receive the natural flow of water from higher grounds, it is his right to receive it in its natural state and without deleterious change effected by artificial means. The case was cited as an authority in John Young & Co. v. Bankier Distillery Co., [1893] A. C. 691, where Lord Watson said of it: 'Against the principle the appellants were able to cite only one American case, which I do not notice further, because it was decided on the express ground that in so far as concerns the present question, the law of Pennsylvania essentially differs from the law of England.' In another opinion in the same case it was said that Pennsylvania Coal Co. v. Sanderson proceeded upon considerations which characterize making law rather than interpreting the law so as to give effect to sound, just and well recognized principles as to the common interest and rights of upper and lower proprietors in the running water of a stream."

In as much as the oil and salt water which were permitted to flow onto appellee's farm from appellant's well did not follow any watercourse, but spread out over the surface and flowed onto appellee's farm, which was on a lower level, appellee's counsel maintain that the complaint was sufficient, regardless of the doctrine of the Sanderson case, because the salt water and oil were brought to the surface by artificial means, and so deposited on the surface that injury to appellee must necessarily result.

The case of Niagara Oil Co. v. Jackson supra, was decided by the Appellate Court in 1910, and a petition to transfer the cause to this court was denied in 1911. The decision in that case fully supports appellee's contention, and consequently it is not necessary here to consider the rule announced in the Sanderson case. The complaint was sufficient. Templeton v. Voshloe (1880), 72 Ind. 134, 37 Am. Rep. 150; City of Garrett v. Winterich (1909), 44 Ind.App. 322, 87 N.E. 161, 88 N.E. 308; Anderson v. Drake (1909), 24 S.D....