Peterson v. Texas Co.
| Decision Date | 08 November 1947 |
| Docket Number | 36613. |
| Citation | 163 Kan. 671,186 P.2d 259 |
| Parties | PETERSON v. TEXAS CO. |
| Court | Kansas Supreme Court |
Rehearing Denied Dec. 13, 1947.
Appeal from District Court, Russell County; C. A. Spencer, Judge.
Action by Gordon Peterson against the Texas Company for damages from salt water and oil field waste which escaped from pond maintained by defendant on oil lease adjoining farm land leased by plaintiff. From a judgment for plaintiff the defendant appeals.
Syllabus by the Court
1. In an action for damages on account of salt water and other oil field refuse defendant was alleged to have permitted to escape from its salt water ponds onto the farm of plaintiff it is held that this action, as well as a preceding action was actually for damages to personal property.
2. In an action such as that described in the foregoing paragraph of the syllabus, the question of whether the action was for permanent damages will be decided from an examination and consideration of the entire petition and not from a single paragraph.
3. In an action such as that described in the foregoing paragraph of this syllabus, the record is examined and it is held that there was substantial evidence to support the verdict.
B. W Griffith, of Tulsa, Okla. (Jerry E. Driscoll, of Russell, on the brief), for appellant.
Clifford R. Holland, of Russell (George W. Holland and Herbert N. Holland, both of Russell, on the brief), for appellee.
This was an action for damages alleged to have been sustained by plaintiff when salt water and oil field waste escaped from a pond maintained on an oil lease being operated by defendant on land adjoining land upon which plaintiff had a farm lease and conducted farming operations. Judgment was for plaintiff. Defendant appeals.
This action was commenced January 24, 1945. An action between the same parties for damages on account of salt water and oil field waste and affecting the same real estate was commenced June 17, 1942, and judgment rendered in favor of plaintiff May 11, 1943. This judgment was paid and fully satisfied.
On account of an argument of res adjudicata and the statute of limitations, made by the defendant, attention will first be paid to the pleadings in each of these actions.
The action was first commenced June 17, 1942. The petition alleged that plaintiff was the agricultural tenant on a quarter section of described real estate which he used for farming and stock raising, which was well improved with a two-story house, with full basement, barn, granary, chicken house and tool shed; that there were two wells upon the place which furnished until about November 1, 1941, a never failing supply of wholesome water ample for all farm purposes; that prior to May 1, 1941, the house was surrounded by about 60 shade trees.
The petition then alleged the defendant was the owner of an oil and gas lease upon a described quarter section of land which it was operating and was producing oil and gas; that this lease was immediately north of and adjacent to plaintiff's land and that defendant had damaged plaintiff's rights of possession and occupancy in that the leaseholds of defendant were upstream or above the fresh water strata upon plaintiff's land and defendant by its operations was producing large quantities of crude oil, base sediment salt, salt water and water containing minerals, all of which were injurious to human life; that in the operation of these wells defendant maintained salt water ponds, into which it drained its salt water and other minerals; that beginning about May 1, 1941, defendant permitted its salt water to escape and flow from its wells into the fresh water strata lying underneath the entire premises occupied by plaintiff so that his land and the fresh water under it had become impregnated and saturated with crude oil, base sediment, salt water and water containing minerals; that these substances had thereby destroyed vegetation and made the soil unproductive and incapable of sustaining any plant life; that the wells had been so polluted that plaintiff had been unable since December, 1941, to use the water therefrom for any purpose; that in addition the salt water had escaped into the basement of plaintiff's house so that plaintiff had been compelled to go to expense in pumping it from the basement and it had prevented plaintiff from using the basement and had weakened the foundation of the house.
Subsequently an amended petition was filed which made everything already referred to a part and alleged in addition that the salt water flooding the basement had damaged and ruined certain described property; had an unpleasant odor which permeated the house and made living in it uncomfortable and difficult; that the pollution had damaged the health of plaintiff's cattle so that he had been compelled to expend money for veterinaries' services and medicine and to abandon his pasture for the summer and fall of 1941 and the spring of 1942 and rent other pasture; that during summer and fall of 1941, and early spring of 1942, this pollution caused the loss of eight dozen chickens by reason of drinking this water; that this pollution caused them to lay fewer eggs and plaintiff lost about 1,150 dozen eggs; that the pollution had destroyed all the trees and shrubbery and destroyed the fertility of the soil for farming purposes; that plaintiff had been compelled since May 1, 1941, to haul water for his family and stock. The amended petition then alleged that on account of the pleaded acts of defendant he had been damaged as follows:
The amended petition then alleged that all the acts of defendant had been continuous since about May 1, 1941, and that these acts would continue to cause damage to plaintiff and the defendant should be enjoined from allowing the waste material to escape.
The prayer was for judgment for $4,500 damages and an injunction.
After the issues were made but before trial defendant confessed judgment in the amount of $1,200 and judgment was entered accordingly on May 11, 1943.
We shall now notice the pleadings in the case at bar. The petitionfirst set out the location of the real estate and the relationship of the parties as in the former action; the location of the house, outbuildings and two wells and that in addition that there was a cistern which provided a never failing source of wholesome water; that defendant was the owner of an oil lease on a described quarter section and from June 17, 1942, down to July 1, 1943, produced oil from these leases immediately north of plaintiff's farm and injured plaintiff's right of occupancy because from June 17, 1942, to July 31, 1943, the leaseholds of defendant were above the fresh water strata of plaintiff's land and defendant was producing large quantities of crude oil, base sediment, salt and salt water containing minerals which were injurious to vegetation and mineral life; that in the process of operating these leases defendant had constructed salt water ponds and disposal wells into which it drained its salt water, etc.; that in operating these wells defendant had permitted its salt water to escape into the fresh water strata lying underneath the entire premises of plaintiff and into draws which ran from the leasehold of defendant upon plaintiff's farm so that the fresh water under plaintiff's land had become saturated with salt water, which had destroyed vegetation and crops and made the soil unproductive and incapable of sustaining any vegetation; that the wells became so polluted that plaintiff has been unable to use water from them since June 17, 1942; that in addition the cistern became polluted so that from June 17, 1942, up to July 1, 1943, plaintiff was compelled to go to great expense in rebuilding it; that salt water escaped into the basement of plaintiff's house causing him trouble and expense because the odor of the water caused the walls of the house and the clothing and furniture of plaintiff to deteriorate and rot; plaintiff was compelled to go to great expense in pumping this water from the basement; that the house became difficult to heat because the furnace was in the basement and he lost the use of it; that the pollution caused his cattle and poultry to become sick and plaintiff was compelled to expend money for a verterinarian and for medicine; that it caused the death of a two-year-old heifer and four dozen chickens, twenty-five head of cattle lost weight; kept eight dozen chickens from laying and deprived plaintiff of the income from the sale of about 250 dozen eggs; that the pollution killed two or three acres of grass; that in addition to the other matters alleged plaintiff was compelled to haul water from June 17, 1942, to July 1, 1943. Damages were set out as follows:
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