Shelly v. Ozark Pipe Line Corporation
| Decision Date | 03 September 1927 |
| Docket Number | No. 4112.,4112. |
| Parties | SHELLY et al. v. OZARK PIPE LINE CORPORATION. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Action by E. E. Shelly and another against the Ozark Pipe Line Corporation. Judgment for plaintiffs, and defendant appeals. Reversed.
See, also, 247 S. W. 472.
Koerner, Fahey & Young, of St. Louis, and Walker & Skinner, of Springfield, for appellant.
Arch A. Johnson and Sam W. Wear, both of Springfield, for respondents.
This is an action to recover damages alleged to have been caused by crude oil escaping from defendant's pipe line, which passes across plaintiffs' farm. The cause was tried to a jury, resulting in a verdict in favor of plaintiffs for $2,500, but the trial court required a remittitur of $1,000 at the hearing on the motion for a new trial. After the remittitur judgment was rendered for $1,500, and defendant appealed. At the previous term we handed down an opinion in this cause, but granted a rehearing.
The suit was filed against the Ozark Pipe Line Corporation and the Yarhola Pipe Line Company, but at the close of the case plaintiffs dismissed as to the Yarhola Pipe Line Company.
Plaintiffs allege that they are the owners of certain lands in Greene county, describing them; that they reside upon said lands and have thereon many valuable improvements, consisting of a dwelling house, barn, well, fences, and outhouses; that said lands are watered by a running stream which runs across the north side of said premises; that said lands are particularly suitable for dairying, and that plaintiffs maintain on said premises a large number of cattle for dairying purposes; that defendant for many years has owned and operated a pipe line which crosses plaintiffs' lands; that since January 1, 1922, defendant has continuously, carelessly, and negligently maintained said pipe line on and across said farm, and that because of such negligent maintenance large quantities of crude oil have escaped and permeated and saturated plaintiffs' lands; that said escaped oil has contaminated plaintiffs' spring branch and the water courses under their lands, and has entered and contaminated their well to such an extent that the water therein is unfit for use, and the well is thereby rendered worthless. Plaintiffs further alleged that the underground water courses in their land have been so contaminated that any well sunk upon said premises would be contaminated if oil continues to escape, and that while said pipe line continues in its defective condition it will be impossible for plaintiffs to obtain upon their lands a supply of pure water. It is further alleged that the spring branch was used for stock water and that the oil has contaminated and destroyed said branch as a source of stock water; that because of the contamination of the well and the branch and creek, plaintiffs have been compelled to carry water both for family use and for their stock; that because of the escaping oil plaintiffs are deprived of the right to the comfortable enjoyment and use of their home to their damage, etc.
Defendant answered by a general denial and a plea of res adjudicata. On motion by plaintiffs the plea of res adjudicata was stricken out.
Error is assigned: (1) On the refusal of a peremptory instruction in the nature of a demurrer to the evidence at the close of the case; (2) on the action of the court in striking the plea of res adjudicata; (3) on certain instructions given for plaintiffs; and (4) on certain refused instructions requested by defendant.
This is the second cause to reach this court for damages alleged to have been done plaintiffs' farm by defendant's pipe line. See Shelley et ux. v. Ozark Pipe Line Corporation, 247 S. W. 472. What we may term the demurrer to the evidence is based upon two propositions, viz.: (1) That there is no substantial evidence in the record tending to show that plaintiffs' water supply was contaminated by oil from defendant's pipe line; and (2) that the former judgment is a bar to the instant cause. We shall dispose of these questions in the order stated.
Plaintiffs' dwelling is near the southeast corner of their farm. The pipe line enters the 40 acres, upon which the dwelling is located, near the southwest corner and leaves said 40 near the northeast corner. The pipe line passes northwest of the dwelling, and the shortest distance from the well to the pipe line is 544 feet. The spring and spring branch are northwest of the dwelling and north of the pipe line, and the spring is about 500 feet from the pipe line. There is a creek or branch that extends along near the north side of the farm and curves to the southwest near the northwest corner. The spring branch runs from the spring to the creek. A road extends north and south on the east side and in front of the dwelling. What is called in the record the Earnest place is 631 feet north of plaintiffs' dwelling and is on the east side of the road. The pipe line passes about 350 feet north of the Earnest well. The pipe line enters plaintiffs' farm on an ascending grade, and reaches its greatest elevation on the farm near the point that is 544 feet from plaintiffs' well. The pipe line occupies the crest of the hill, and the slope is towards the north and northwest — that is, towards the spring and creek — and also to the south and southeast towards the dwelling and well. The well is about 16 feet lower than the pipe line where it passes along northwest of the dwelling and well. The spring and creek are also lower than the pipe line, but their elevation is not given.
In the case cited above plaintiffs recovered damages alleged to have been caused by the contamination of their water supply from escaping oil from the pipe line, and this cause is for damages alleged to have been sustained since the first cause was tried. The cause at bar is based on the theory that since the first trial defendant has negligently maintained its pipe line, and plaintiffs in their instructions in this cause limit the time in which recovery can be had from January 1, 1922, to the time of the trial. While not directly stated, the inference is that plaintiffs, in this cause, are proceeding on the theory that after the first trial defendant repaired its pipe line across their farm, and that for about six months after the repair their well, spring, and creek were not contaminated as they had been before.
Plaintiff E. E. Shelly testified that about May, 1922, oil appeared "at a new place" about 75 yards west of "where he had discovered it on his premises before"; that in the spring of 1922, he had seen oil at this point "15 or 20 times"; that "every time it comes a wet enough spell to start that wet weather spring it (oil) shows up"; that since the spring of 1922, the water in the well has been oily at "wet times"; that oil would come into the well every time it rained enough "to raise the water." This plaintiff further testified that when oil was in the well the water was unfit for use, and that they carried water from the Earnest place and some from Mrs. Acuff's; that since January 1, 1922, oil has appeared in the spring branch "15 or 20 times"; that the calves drank the branch water and it scoured them. On cross-examination, plaintiff E. E. Shelly said that when it was "wet enough to start that wet weather spring oil comes out with the water; it will spurt out there; the water carries it out there; and it has killed some of the vegetation."
Mrs. Shelly and nine other witnesses, who were acquainted with plaintiffs' farm, some for many years, testified to the effect that the well and the stock water source were contaminated from oil in wet weather, and had been since the spring of 1922. Some of plaintiffs' witnesses testified that when plaintiffs' water supply was contaminated with what they considered oil, that a rainbow effect was given off.
Defendant's evidence on the issue of leaks from the pipe line is in substance as follows:
J. S. Endicott testified that about the middle of November, 1921, a month after the first trial, the pipe line was stripped, that is, completely exposed, from about 50 or 60 feet on the Earnest place to the top of the hill on plaintiffs' farm; and that there was no evidence of a leak along the portion stripped at that time; that on top of the hill and on to the southwest on plaintiffs' farm 18 or 20 test holes were dug; that the joints of the pipe are 20 feet in length and that they dug the test holes at every other joint at the collars; that the test holes were about two feet long and of such depth as to completely expose the collars, so that "they could get under it and see whether there was any oil underneath;" that the pipe is laid in a trench, and if there is a leak the oil will follow the trench on a descending grade; that there was no evidence of oil at any of the test holes.
Ralph J. Brooks testified that he was city bacteriologist of the city of Springfield; that on December 12, 1925 (two days prior to trial), he visited the Shelly farm, took a sample of water from the well, and analyzed it from a bacteriological standpoint; that the analysis showed the presence of manure and other surface accumulations; that he found one wiggle tail, the larva of a mosquito, in the sample analyzed; that the larva of the mosquito cannot live in water that has oil in it. This witness further testified that the water was not suitable for drinking purposes.
R. E. Richardson testified that he was a patrolman for defendant and that he has, twice a week since March, 1921, walked the pipe line right of way through the Shelly farm; that it is his duty to look for leaks; that he saw no evidence of oil on the Shelly place. Richardson also testified that he saw the line after it was stripped and the test holes dug, and that he saw no evidence of oil in the exposed trench or in the test holes.
B. F. Whitsell...
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