Rain v. Balph
| Decision Date | 31 January 1956 |
| Docket Number | No. 36794,36794 |
| Citation | 293 P.2d 359 |
| Parties | Clara A. RAIN, Plaintiff in Error, v. Charles BALPH, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In a civil action triable to a jury, where jury is waived and the cause is tried to the court, the findings of the trial court have the force and effect of a jury verdict, and when the finding is a general one it is a finding of every specific thing necessary to be found sustaining the general judgment.
2. It is for the jury, or the trial court upon waiver of jury, to determine the credibility of the various witnesses, and the weight and value to be given to their testimony. The conclusion there reached upon these points will not be disturbed on appeal, unless appearing clearly to be based on caprice or to be without any reasonable foundation.
3. Record and evidence examined and found sufficient to sustain the judgment of the District Court, and the same is affirmed.
Appeal from the District Court of Pottawatomie County; J. Knox Byrum, Judge.
An action instituted by Clara C. Rain against Charles F. Balph to recover damages to real estate allegedly caused by salt water pollution from an oil well and arising from negligence of defendant. Action was tried to the court and judgment rendered for defendant and plaintiff appeals. Affirmed.
F. H. Reily, Shelton Skinner, Shawnee, for plaintiff in error.
Miller & Peters, Shawnee, for defendant in error.
The plaintiff in error, Clara A. Rain, instituted this action in the District Court of Pottawatomie County against Charles F. Balph for alleged injuries to twenty acres of land caused by discharging salt water and other deleterious substances from an oil well into a bar ditch on the south side of the section line opposite the house located on plaintiff's land north of the section line which runs east and west between plaintiff's land and defendant's oil well. Plaintiff's petition is in part as follows:
'(8) That said substances were emptied into said bar pits for such a time and such large quantities that the said salt water and other deleterious substances saturated the earth lying under plaintiff's land, and polluted her water well to such an extent that the water from said well became polluted in such a manner and to such an extent that said water was and is unfit for domestic use, drinking, or irrigating purposes and the water produced in said well is permanently polluted and the sand from which the water is produced is permanently saturated with said salt and other deleterious substances and water for said domestic purposes cannot be used and the water produced in said well or from said sand lying under plaintiff's land can never be used for household or other domestic purposes.
The defendant filed a general denial to plaintiff's petition. A jury was waived and the cause was tried to the court, who found the issues in favor of the defendant and against the plaintiff and a judgment was entered accordingly in favor of the defendant and against plaintiff. Motion for new trial was denied and the plaintiff appealed. No findings of fact were requested and none were made by the trial court. Lowe v. Hickory, 176 Okl. 426, 55 P.2d 769 holds:
'1. In a civil action triable to a jury, where jury is waived and the cause is tried to the court, the findings of the trial court have the force and effect of a jury verdict, and when the finding is a general one it is a finding of every specific thing necessary to be found sustaining the general judgment.
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The seventh assignment of error of the petition in error is as follows:
Counsel for the plaintiff in error makes the statement in their brief that the judgment of the court is not reasonably supported by the evidence. There was a volume of testimony and evidence introduced by the plaintiff and considerable evidence by the defendant. Dr. Bailey, a teacher of Chemistry at Oklahoma Baptist University, was called as an expert witness by the plaintiff and gave testimony as to the results of an analysis of the chemicals in certain specimens of water and soil taken from the premises involved and expressed his views with regard to the effect and action of chemicals on the soil and probable results thereof. He said the water in plaintiff's well was unfit for drinking or cooking purposes, that it contained salt or chloride. Dr. Isham, a professional chemist, was called as a witness by the defendant and testified as to the results of certain tests and analyses he made of the water and soil from the premises involved, and gave his views as to the effect and results and probable action of chemicals on the soil. He likewise testified that he found the water in plaintiff's well unfit for drinking or cooking purposes, but expressed his opinion or views that the substance found therein did not come from the defendant's oil well. There was evidence by other witnesses relative to the date defendant's oil well was drilled, its location with respect to plaintiff's land and other facts concerning its operation, also...
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