Sinclair Oil & Gas Co. v. Allen

• Decision Date: 03 June 1930
• Docket Number: Case Number: 19442
• Citation: 1930 OK 287,288 P. 981,143 Okla. 290
• Parties: SINCLAIR OIL & GAS CO. et al. v. ALLEN.
• Court: Oklahoma Supreme Court

1930 OK 287

288 P. 981

143 Okla. 290

SINCLAIR OIL & GAS CO. et al. v. ALLEN.

Case Number: 19442

Supreme Court of Oklahoma

Decided: June 3, 1930

Syllabus

¶0 1. Waters and Water Courses--Damages for Permanent Injury to Land from Pollution of Stream--Insufficiency of Evidence of Values Two Years After Pollution.

In an action for damages to real estate caused by the pollution of a stream of water running through same, where, in addition to poisoning the water of such stream, valuable trees growing along the banks thereof are destroyed, if the injury cannot be abated by the expenditure of money or labor, the measure of damages is the difference between the value of the premises immediately prior to the pollution and after such pollution and destruction of timber, so that evidence of value of the land at the time of trial with, and without, such pollution alone is insufficient to support a verdict and judgment for substantial damages where the trial is had two years after the alleged pollution.

2. Same--Right to Recover Nominal Damages.

In such action, where a breach of duty is shown and there is no competent evidence to show an appreciable detriment to the plaintiff, plaintiff may recover nominal damages.

3. Same--Oil and Gas--Pollution from Oil Wells--Whether Damage Permanent a Question for Jury.

Where, in such action, it appears or is conceded that the source or cause of the salt water flowing into such stream is from oil wells and structures which are in their nature permanent, or such as cannot be abated by the expenditure of money and labor, it is not error to submit to the jury the question whether such damages are permanent.

4. Appeal and Error--Trial--Demurrer to Evidence--Effect of Defendant Supplying Deficiency in Plaintiff's Evidence.

When defendant demurs to plaintiff's evidence in chief, and the demurrer is overruled, and defendant thereupon produces evidence in his own behalf upon the very point upon which plaintiff's evidence is deficient and rendered insufficient to support a verdict for a substantial sum, and supplies such deficiency, a verdict for plaintiff will not be set aside on the ground of insufficient evidence unless in excess of the amount sustainable by the evidence thus supplied.

5. Same--Affirmance of Judgment Conditioned, Upon Remittitur.

Where, under conditions stated in paragraph 4 hereof, the verdict is in excess of the amount sustainable by the evidence, this court, upon appeal, may require a remittitur of such excess before such judgment will be affirmed.

Commissioners' Opinion, Division No. 2.

Error from District Court, Garfield County; Charles Swindall, Judge.

Action by Tulla A. Allen against Sinclair Oil & Gas Company, Roxana Petroleum Corporation, and Mid-Continent Petroleum Corporation. Judgment for plaintiff, and defendants appeal. Affirmed on condition that plaintiff remit $ 1,600 of the judgment.

Edw. H. Chandler, Summers Hardy, and Robt. L. Imler, for plaintiff in error Sinclair Oil & Gas Company.

Koener, Fahey & Young and Joe T. Dickerson, for plaintiff in error Roxana Petroleum Corporation.

J. C. Denton, J. H. Croker, R. H. Wills, H. M. Gray, and I. L. Lockewitz, for plaintiff in error Mid-Continent Petroleum Corporation.

E. L. Swigert and Curran, Sturgis & Curran, for defendant in error.

DIFFENDAFFER, C.

¶1 This action is to recover damages alleged to have been caused by the pollution of a stream running through plaintiff's farm, by casting therein salt water, crude oil, and base sediment from oil wells, etc.

¶2 Plaintiff, among other allegations, stated in her petition that the 160 acres of land involved were purchased and were chiefly valuable for stock breeding and stock raising purposes, and had been used for such purposes since about 1899, and that by reason of the contour, etc., of said land, and the location of the stream, etc., together with the timber growing along the banks thereof, the farm was very valuable for stock breeding and stock raising purposes; that defendants were producers of oil, etc., from certain leases owned by them within the drainage area of said stream and above plaintiff's farm; that in the operation of their leases, defendants had brought and were bringing to the surface large quantities of crude oil, base sediment, salt water, and other oil field refuse, poison, etc., which by and through their drainage systems, defendants had drained in large quantities into said stream and on and through her land, thus destroying the usefulness of said stream as a source of water supply for her stock, etc.; that said salt water, etc., have penetrated the soil on each side of the stream for a considerable distance and destroyed the vegetation and killed a large number of trees growing thereon, and had thus rendered it impossible for plaintiff to raise and pasture stock and carry on her business on said land; that prior to the pollution of the waters of said stream, etc., the fair market value of said land was $ 15,000, and that, after such pollution, the same has been reduced in value to not to exceed the sum of $ 5,000, and alleged that if said pollution continues said land will be further reduced in value, "but that plaintiff is only now complaining of the damage done to this date." She also alleges that two of her herd of about 59 cattle had died from drinking the polluted water, and the balance of the herd had been injured and reduced in value, etc., to her damage in the sum of $ 500. She prayed for damages in the sum of $ 10,500.

¶3 Defendants Sinclair Oil & Gas Company and Roxana Petroleum Corporation answered by general denial. Defendant Mid-Continent Petroleum Corporation answered by general denial, and, in substance, that:

"In so far as it has operated and developed said leases and said leasehold estates, or any of them, it had the lawful right so to do, and that all of its acts and conduct in connection therewith were necessary and incident to the use and enjoyment of such right, title, interest, equity, or estate, as is, or was, owned by it in and to said leases and said leasehold estates, and that if the aforesaid acts and conduct, or any other acts or omission of said defendant, have at any time resulted in injury or damage to said plaintiff, which is expressly and specifically denied by said defendant, the same was unintentional and without negligence or malice on the part of said defendant, and that in so far as said defendant has operated said leases and said leasehold estates, or any of them, it has at all times made every reasonable effort to prevent the escape of salt water, oil, base sediment, or other refuse therefrom, and to prevent injury or damage to said plaintiff."

¶4 All defendants, in a joint supplemental answer, alleged, in substance, that plaintiff was the owner of the land involved and also 160 acres adjoining same on the north; that said land owned by plaintiff was leased for oil and gas mining purposes, and that plaintiff's lessees had at all times mentioned in plaintiff's petition been bringing to the surface large quantities of salt water, base sediment, etc., which was allowed to flow over and across said land and into said stream, causing in whole or in part the damages complained of by plaintiff. The cause was tried to a jury resulting in a verdict for plaintiff in the sum of $ 4,000 upon which, after unsuccessful motion for new trial by defendants, judgment was entered. Defendants appeal, and all join in a single petition in error.

¶5 The item of $ 500 alleged damage for the death of two cattle and injury to others was withdrawn from the jury by the court for want of evidence to support same.

¶6 The defense that plaintiff through her lessees contributed to the pollution of the stream was submitted to the jury by an instruction not excepted to by defendants, and this question is not here involved.

¶7 There are some 25 assignments of error, but only 10 of them are presented in the briefs. As we view the entire record, but three questions are, in fact, presented:

First. Whether the court erred in overruling the demurrer of defendants to plaintiff's evidence.

Second. Alleged error in presenting to the jury the question of whether or not the damage sustained by plaintiff, if any, was permanent, and

Third. Whether or not the verdict and judgment is excessive.

¶8 The evidence of plaintiff shows, in substance, that defendants had allowed oil, salt water, and base sediment to escape from their leases and flow down the stream acress plaintiff's land as alleged in the petition, from about November, 1925, to October, 1927; that thereby some 375 trees growing along and near the banks of the stream were killed; these trees ranged from four inches to three feet in diameter; that prior to the pollution of the stream, the water, which was of nearly constant flow, was pure and wholesome, and was substantially the only source of water for her livestock which she was accustomed to pasture on said land during the spring, summer, and fall months, to the extent of 48 or 50 head; that, after about November, 1925, she was unable to pasture more than six or eight head, because of the limited water supply which she was able to obtain from a well on said land. She attempted to show a diminution in the market value of the land caused by the pollution of the stream. To show this her counsel produced a number of witnesses who testified substantially as shown by the following from the examination of one of her principal witnesses:

"Q. John, what would be the fair reasonable value of that farm with the waters unpolluted and the trees undisturbed by the salt water and the trees alive as they were before, what would be the fair reasonable value of that farm in that condition? A. Approximately $ 100 an acre. Q. What is its value in the condition that it now is with the waters polluted and the trees killed? A. My opinion of the case is that there wouldn't be a man in the country would pay $ 5,000 for it in its present condition. Q. I am asking you

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