Pickens v. Harrison

• Decision Date: 22 October 1952
• Docket Number: No. A-3602,A-3602
• Citation: 252 S.W.2d 575,151 Tex. 562
• Parties: PICKENS v. HARRISON et al.
• Court: Texas Supreme Court

Page 575

252 S.W.2d 575

151 Tex. 562

PICKENS v. HARRISON et al.

No. A-3602.

Supreme Court of Texas.

Oct. 22, 1952.

Rehearing Denied Dec. 3, 1952.

Andrews, Kurth, Campbell & Bradley, Raymond A. Cook, Hamblen & Bobbitt and A. C. Lesher, Jr., Houston, Dan Moody, Austin, Robert Lee Bobbitt, San Antonio, Prentice Wilson, Dallas, for petitioner.

Fulbright, Crooker, Freeman & Bates, Leon Jaworski and W. H. Davidson, Jr., Houston, W. H. Hamblen and Sample & Bell, Edna, for respondents.

GRIFFIN, Justice.

Respondents, Harrison and Combs, filed this suit in the District Court of Jackson County, Texas, against petitioner seeking damages as a result of an alleged pollution of water in respondents' irrigation well and which water, it was alleged, had become salty as a result of such negligent acts of petitioner, and had damaged a rice crop which Harrison, as tenant, had growing on Combs' land during 1949. Respondents sought damages both to Harrison's leasehold estate, and Combs' ownership of the land. Upon a jury verdict answering special issues, the trial court gave judgment for respondents against petitioner and this judgment was affirmed by the Court of Civil Appeals at Galveston. 246 S.W.2d 316.

Petitioner comes before this court with eight points of error to the holding of the Court of Civil Appeals. Our decision in Landers v. East Texas Salt Water Disposal Co., Tex.Sup., 248 S.W.2d 731, decided while this cause was pending on application disposed of the 8th point adverse to petitioner's contention, and the 8th point has not been urged in argument, or the briefs filed by petitioner.

Petitioner's remaining points of error may be grouped into the following contentions:

(1) There being no findings by the jury on the ultimate fact issues necessary to a recovery by respondents (a) whether or not any salt water from petitioner's wells reached respondents' irrigation well, and (b) reached there in sufficient quantities, and (c) with sufficient saline content when commingled with the irrigation water coming from the well to damage growing rice, no judgment could be rendered against petitioner. (2) There is no evidence to support the jury's finding on proximate cause. (3) There is no evidence to support the recovery for future damages as to permanency of the alleged contamination, and (4) Right of lessee Harrison to recovery for contamination of water sands occurring prior to date of respondent Harrison's lease contract, and (5) There was a double recovery given by the trial court.

We have carefully read and studied the 1269-page statement of facts, the 214-page Volume of the documentary exhibits, and the some 50-odd maps, cross-sections and plats, which constitute the record of the evidence introduced upon the three-weeks trial of this cause. In addition we have examined and studied the elaborate peg model of the 45-core holes, and which purports to show the elevation of the holes and the thickness of the first sand in each hole. To detail the evidence at any length would make this opinion entirely too long. We will endeavor to summarize this mass of testimony so as to bring out the high points of the evidence viewed from the standpoint of respondents in accordance with well recognized rules of law.

It is fundamental that the rule to be applied is "If, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff'-then there was evidence to support their verdict.' Underwood v. Security Life & Annuity Company, 108 Tex. 381, 194 S.W. 585, 587; Cartwright v. Canode, 106 Tex. 502, 507, 171 S.W. 696; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508; Liedeker v. Grossman, 146 Tex. 308, 206 S.W.2d 232; 3 B Tex.Jur., p. 443, Appeal & Error Civil Cases, Sec. 935; and authorities cited therein.

The evidence showed that Harrison had an eleven-year lease on Combs' land, beginning December 15, 1948. Immediately thereafter he drilled and equipped an irrigation well on this land and prepared the land for irrigation at a cost of $25,000 and planted a rice crop for year 1949. The land was very fine rice land and was the same as sod. The land was properly prepared for the crop and the seed sowed in April and May of 1949 and came up to a very fine stand-one of the best in that vicinity. The crop was of a fine, healthy color and when watered the crop grew and flourished abundantly. After a flooding of water from the irrigation well about the first of July, the tops of the stalks began to turn reddish brown and rust colored, the plant began to look sick, and stopped growing. The stalk did not boot out, nor the head fill as it should. As each plot of ground would be irrigated the crop would begin to show damage. This deterioration continued until the crop was harvested in the fall. It was stipulated as to the number of barrels of rice actually made on the 359.7 acres in rice, and which could be irrigated from this well, and also the price which was received for the rice. When the rice first began to burn and show evidences of damage, about July 13, 1949, respondent consulted a Dr. Wyche, of the Rice Experiment Station of Texas A. & M. College, who inspected the crop and recommended the application of certain fertilizers which respondents applied promptly and in the best recognized manner and method. This application did not benefit the crop, and it continued to deteriorate. Dr. Wyche testified that after examining the land, the way the rice had been planted and cultivated, the appearance of the rice after it began to show deterioration, and the failure of the crop to respond to the fertilizer, he saw no other source of the damage except water from the irrigation well, and that he did not know of any cause for the damage other than salt water from the well. Other witnesses testified as to the crop before and after the damage, that when the well was first completed it produced good water that tested a little soft and was fine drinking water. Respondent Harrison and witness Clark testified that after the rice started dying and 'firing up' and fertilizer had been put on the crop (and to no avail) then they tasted the well water for the first time since it had been started pumping and the water tasted salty. This occurred about August 20, 1949, and at this time a test was made by these witnesses by dropping a few drops of silver nitrate solution in a sample of the well water, and that this produced a heavy blue cloud in the water. All scientific witnesses for both sides who testified said this was a sign that there was salt in the water sample, and all agreed that the heavier the concentration of salt in the water the darker would be the cloud formed. Harrison and Clark (who had an interest in the 1949 rice crop under Harrison, and who did most of the actual working of the crop) testified that they were unable to get water from any other source than the irrigation well, and they continued to flood the crop from this well even after they believed the water had become contaminated with salt, because had they not done so, the crop would have produced no rice. Other witnesses testified to the good land, the good preparation for the crop, the fine stand of rice and its excellent condition until in July 1949; to the appearance of the crop after July, and that the crop then had the appearance caused by flooding with salt water.

The evidence as to the source of contamination was as follows: About two miles in a general northeasterly direction, in November 1943 the Little Kentucky Oil Field was brought in by petitioner. Huseman No. 1 well began making approximately 15% salt water about three weeks after it was brought in (this would fix the date as approximately December 1, 1943). This well increased its output of salt water in 1944 to 25% and in 1945 to 80%, which latter figure was 150 to 165 barrels per day. In 1949 the output of salt water had increased to 92% or approximately 460 barrels per day. Petitioner had other oil wells making some salt water on the Kramer & Chernosky leases and which was put into Lunis Creek. (The Harrison irrigation well was located about 6000 feet west from this creek.) From the beginning of production until June 1949 this salt water was run into a borrow ditch which took it to Lunis (or Looney's) Creek. The creek ran generally in a north and south direction across a part of the Combs tract. It was estimated that about 495,000 barrels and in excess of 20,000,000 gallons of salt water had been disposed of down this borrow ditch and Lunis Creek during the six years this method of disposal was used. The general slope of the surface of the ground and the run-off of rain was in a southerly direction. Lunis Creek was a dry drainage canal of varying depths but around 10 to 20 feet deep as it ran through the Combs land. In May 1949 complaint was made to the Railroad Commission of the emptying of the salt water into Lunis Creek and the Commission notified petitioner that he was violating Rule 20 (which petitioner and his agents in charge of the production in Little Kentucky Field testified they knew existed) and ordered him to desist from further pollution. One of petitioner's agents saw the local representative of the Railroad Commission and told him they would stop the then method of disposing of the salt water, and about June 17th petitioner completed a disposal pit about 25 25 feet square at the bottom and about 13 feet deep into the ground at Huseman No. 1 well. Other pits were completed for Kramer & Chernosky wells Petitioner's witness Nick Martin testified that with the knowledge and consent of his superiors who represented petitioner in this field, he sank on their ends two concrete tile pipes two feet in diameter and three feet long into the bottom of the Huseman pit. This was done to promote...