Southwest Weather Research, Inc. v. Duncan

• Decision Date: 21 January 1959
• Docket Number: No. 5351.,5351.
• Citation: 319 S.W.2d 940
• Parties: SOUTHWEST WEATHER RESEARCH, INC., et al., Appellants, v. Jim DUNCAN et al., Appellees.
• Court: Texas Court of Appeals

319 S.W.2d 940

SOUTHWEST WEATHER RESEARCH, INC., et al., Appellants, v. Jim DUNCAN et al., Appellees.

No. 5351.

Court of Civil Appeals of Texas, El Paso.

November 26, 1958.

Rehearing Denied January 21, 1959.

Turpin, Kerr, Smith Dyer, William M. Kerr, Raymond A. Lynch, Midland, for appellants.

Dan Moody, Austin, W. H. Earney, H. O. Metcalfe, Marfa, for appellees.

PER CURIAM.

This is an appeal from a judgment of the Eighty-third District Court, Jeff Davis County, Texas, said judgment being in the form of an injunction commanding the appellants "to refrain from seeding the clouds by artificial uncleation or otherwise and from in any other manner or way interfering with the clouds and the natural condition of the air, sky, atmosphere and air space of plaintiffs' lands and in the area of plaintiff's lands to in any manner, degree or way affect, control or modify the weather conditions on or about said lands, pending final hearing and determination of this cause; and from further flying over the above-described lands of plaintiffs and discharging any chemicals or other matter or material into the clouds over said lands." Appellees are ranchmen residing in Jeff Davis County, and appellants are owners and operators of certain airplanes and equipment generally used in what they call a "weather modification program", and those who contracted and arranged for their services.

It is not disputed that appellants did operate their airplanes at various times over portions of lands belonging to the appellees, for the purpose of and while engaged in what is commonly called "cloud seeding." Appellants do not deny having done this, and testified through the president of the company that the operation would continue unless restrained. He stated, "We seeded the clouds to attempt to suppress the hail." The controversy is really over appellants' right to seed clouds or otherwise modify weather conditions over appellees' property; the manner of so doing; and the effects resulting therefrom. Appellants stoutly maintain that they can treat clouds in such manner as will prevent the clouds from precipitating hail, and that such operation does not and cannot decrease either the present or ultimate rainfall from any cloud or clouds so treatecd. Appellants were hired on a hail suppression program by a large number of framers in and around Fort Stockton and other areas generally east, or easterly, of Jeff Davis County. It was developed that the farmers' land was frequently ravaged by damaging hail storms, which appellants claim originated in and over the Davis Mountains in the Jeff Davis County area.

The appellees' testimony, on the other hand, which was elicited from some eleven witnesses, was to the effect that this program of cloud seeding destroyed potential rain clouds over their property.

The trial court, in granting the temporary injunction, found as a matter of fact that appellants were engaging in day-to-day flying airplanes over appellees' lands and into the clouds over appellees' lands, and expelling a foreign substance into the clouds above appellees' lands in such a manner that there was a change in the contents of the clouds, causing them to be dissipated and scattered, with the result that the clouds over plaintiffs' lands were prevented from following their natural and usual course of developing rain upon and over and near plaintiffs' lands, thereby resulting in retarded rainfall upon plaintiffs' properties. The court further held that such was injurious to appellees and was in interference of their property rights, and would cause irreparable damage if not restrained.

It has long been decided that in cases of this sort we must affirm the decision of the trial court unless it is clearly shown that he abused his discretion in granting the temporary injunction: Rudd v. Wallace, Tex.Civ.App., 232 S.W.2d 121; 24-A, Tex.Juris., § 265, p. 382. Therefore, we must now examine the evidence to see if the trial court's action was proper.

First of all, appellant Kooser, the president of defendant corporation, who was in charge of the operations, when asked if he could prevent or lessen hail, answered as follows: "We feel that we have indicated something along that line in this area." He further admitted that he was trying to and was changing weather conditions, but denied that he depleted any potential or active precipitation, and maintained that, on the contrary, his operation tended to increase precipitation. The experts did not agree in their testimony. Witnesses Quate and Moyer, after qualifying, explained the processes of cloud formation and rain making, and stated positively that seeding clouds, as was done here, with silver iodide or salt brine or both, could not depreciate, deplete or destroy the rain potential of a cloud that was likely to produce rain. They did testify that unimportant clouds with no rain potential could be dissipated. Witness Battle testified that, in his opinion, overseeding of potential rain clouds could diminish or destroy their rain-making power. All experts agreed that the impregnation of clouds with foreign particles or nuclei would, when carried up to the freezing top of the cloud by a warm updraft, help precipitation to occur by drawing minute droplets of moisture to their surface until they became heavy enough to fall out of the cloud as precipitation. Witness Battle maintained that over-seeding would cause a surplus of nuclei, so that the droplets would never get big enough to fall out. The other two experts denied that this could happen and testified that the type of operation here concerned would increase precipitation and prevent hail. Reference was made to various articles and publications as, for example, the September 1953 Bulletin of the American Meteorological Society, wherein the writer, R. T. Beaumont, maintains that a two-year cloud seeding program in southern Oregon decreased, instead of increasing, the annual precipitation in the area under study. Quate and Moyer both disagreed with this finding. Then there is reference to a statement in Vol. 1, page 43, of the Stanford Law Review, which quotes Vincent Schaefer as saying that he believed that rain could be prevented by over-seeding clouds. In Volume 45 of the California Law Review, Page 702, this statement is found:

"On the other hand, if through accident or design a storm is overseeded, the effect can be to form so many ice crystals that they disperse the moisture in the freezing zone and thus destroy the basic conditions for precipitation. This is the process involved in hail dispersion."

Witness Battle, when asked the following question;

"Q. In the type of cloud we have been talking about here, the thunderhead in the Davis Mountain area, which occur in the summer months, when you stop hail, do you stop rain?

"A. I would say you slow it down considerably and many times it absolutely stops it."

Then, finally, we have the statement on Page 707, Volume 45 of the California Law Review, as follows:

"Scientific and mathematical evaluation of the results of cloud seeding is in its experimental infancy."

citing as authority therefor several articles and publications. It is therefore clear that there was sharp divergence in the expert testimony presented to the trial court.

On behalf of the appellees' position there were eleven witnesses. They testified that on various occasions they had been observing what they considered rain clouds over their property. They testified that these were clouds from which they usually got rain, and which, in their opinion, would probably produce rain. In several instances it had begun to rain or sprinkle. Some of these witnesses testified to a lifetime and others to many years of practical and actual observation of clouds and the formation of those clouds which produced rain. For example, witness Jim Duncan testified he had been in the area since before the turn of the century, and that it was the habit of ranchers to observe and evaluate all clouds with the idea of whether or not rain could be expected therefrom. He testified that his land was ranch land which depended upon the natural elements, such as rain, to grow feed and forage for his livestock. Without detailing the individual testimony of each witness, the...