Peppers Refining Co. v. Spivey

• Decision Date: 19 July 1955
• Docket Number: No. 36664,36664
• Citation: 285 P.2d 228
• Parties: PEPPERS REFINING COMPANY, a corporation, Plaintiff in Error, v. Helen C. SPIVEY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 228

285 P.2d 228

1955 OK 214

PEPPERS REFINING COMPANY, a corporation, Plaintiff in Error, v. Helen C. SPIVEY, Defendant in Error.

No. 36664.

Supreme Court of Oklahoma.

July 19, 1955.

Syllabus by the Court

1. In case of permanent injury to land caused by the overflow of waters which are polluted by salt, oil, and other oil filed refuse from oil and gas wells, a cause of action for damages arises at the time it becomes obvious that the land has been permanently injured.

2. In civil cases the jury may follow their own convictions, based on their own experience, observations and common knowledge, although contrary to the expert opinions.

3. Evidence reasonably tending to prove the essential facts in a case, either directly or indirectly, or by permissible inferences, is sufficient to sustain a verdict and judgment based thereon.

Appeal from the District Court of Oklahoma County; Clarence Mills, Judge.

Suit to recover damages for permanent injury to real property. Judgment for plaintiff and defendant appeals. Affirmed.

Robinson, Shipp, Robertson & Barnes, Oklahoma City, for plaintiff in error.

W. F. Wilson, Jr., Oklahoma City, for defendant in error.

CORN, Justice.

Plaintiff brought this action to recover damages for permanent injury to real property, alleged to have resulted by reason of defendant having permitted salt water to escape onto plaintiff's property.

Plaintiff alleged she was the owner of real property (Lots 4-8, Blk. 43, Maywood Addition) on Northeast 5th street in Oklahoma City, Oklahoma; she maintained thereon three houses, a garage apartment and three lower apartments as rental properties; defendant owned and operated an oil well located upon a portion of her property, and maintained a salt water disposal line crossing the front of the property; prior to July 1951, this line broke thereby permitting large quantities of salt water to spread over her property; about June 16, 1952 the resulting permanent damage became apparent by reason of large trees, grass and shrubbery dying, as well as new grass which had been planted in June 1951, failing to grow; condition necessitated removal of 5 large shade trees which had died as a result of salt water pollution of the soil; in February 1953, this line again burst and flooded the property thereby killing small amount of vegetation remaining; prior to escape of salt water, land was fertile and the trees and shrubs decorative, but resultant destruction had damaged property to the extent of $3000., the difference in value of the property before and after happenings complained of by plaintiff. A second cause of action sought recovery of cost of removal of dead trees, and also to recover cost of replacing gas lines into the property allegedly made necessary by escaping salt water. This latter portion of the second cause of action was dismissed by plaintiff during the trial.

Defendant's answer admitted ownership of the line, breaking of same in June, 1950, escape of some salt water onto plaintiff's property but that the line was repaired immediately and that plaintiff had knowledge both of the break and the escape of salt water into the soil. By way of defense defendant asserted that expert analysts had established, by tests (made in June 1951, July 1952, and March 1953), that the real cause of trees and shrubs dying was soil deficiency. Defendant denied liability for any loss claimed by plaintiff, or that the amount of damage was as alleged, and further plead the statute of limitations, 12 O.S.1951 § 95, subd. 3, in defense to the action.

The plaintiff replied by general denial. The issues thus presented were tried to a jury.

The evidence disclosed that defendant, in operating the oil well, flowed the salt water from the well to a disposal system by means of a 4 inch line underneath the earth which crossed plaintiff's property between the sidewalk and the curbing. In July, 1950, a tenant notified plaintiff of a wet place on one of the lots, and she then notified the city water department, in the belief a water line had broken. Upon inspection by the water department it was discovered that defendant's salt water line had broken. Plaintiff thereupon notified defendant, who repaired the break the same day. After making repairs defendant filled in new earth and set out Bermuda grass in the parking. However, at the date repaired the line had been leaking approximately three weeks; the earth sank at the point of the leak, and salt water flowed across the sidewalk and into the front yard of plaintiff's property, but did not reach the shrubbery surrounding the houses; thereafter the earth was covered with salt deposits.

In the spring of 1951 the grass failed to come up and it became apparent the shrubs and trees were dying. June 6, 1951, plaintiff complained to defendant that a large shade tree had died. The fifth and last shade tree died in the spring of 1952. Plaintiff filed this action April 2, 1953, seeking damages for the injuries sustained.

Defendant's evidence was that a metering device on the disposal line would disclose any break thereon within 8 hours time; there was no visible evidence of an excessive amount of fluid in the region of the break, but immediately upon being notified the break was repaired, the surrounding soil removed and the area filled in with new soil. Cross examination revealed there were two breaks in the line, one day apart, in this area. The white substance on top of the ground was gypsum which defendant spread, upon recommendation of soil experts, to counteract any salt in the soil. Defendant directed its evidence principally toward showing soil samples had been taken from the premises and subjected to extensive analysis by qualified experts. The testimony by such experts was that, although tests revealed the presence of some salt in the soil, the quantities were insufficient to kill the grass and trees; the nature of the soil was such that little lateral percolation could have occurred from the area of the break; the trees died by reason of excessive sand placed in the yards for children to play in, and because of lack of care and children's excessive abusive use of the trees; the shrubbery appeared to have been tramped down; it appeared there was such heavy traffic upon the grass, and it had so little care, that it could not grow; the salt water had little effect upon the land except where it actually got on the grass.

The jury returned a verdict in plaintiff's favor ($1,750) upon which the judgment appealed from was rendered. The issues urged as grounds for reversal of this judgment are presented under three propositions.

The first contention is that plaintiff's action was barred by the applicable statute of limitations, 12 O.S.1951 § 95, subd. 3, which provides:

'Third. Within two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud--the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.'

The argument is that plaintiff knew of the break in the line in May or June, 1950, and that large quantities of salt water ran down the parking on the front of her lots, and, likewise, that she knew damage to the soil resulted because the grass was killed. Thus, having knowledge that permanent injury resulted from this occurrence, plaintiff's action was barred by reason of not having been brought within the two year period provided by the statute, supra.

The rule is settled that an action to...