Stanolind Oil & Gas Co. v. Lambert, 11962.

• Decision Date: 15 June 1949
• Docket Number: No. 11962.,11962.
• Citation: 222 S.W.2d 125
• Parties: STANOLIND OIL & GAS CO. v. LAMBERT.
• Court: Texas Court of Appeals

Page 125

222 S.W.2d 125

STANOLIND OIL & GAS CO. v. LAMBERT.

No. 11962.

Court of Civil Appeals of Texas. San Antonio.

June 15, 1949.

Appeal from District Court, La Salle County; H. D. Barrow, Judge.

Action by C. F. Lambert against the Stanolind Oil & Gas Company to recover for damage to water wells allegedly as result of the discharge by defendant of explosives in doing exploratory work to determine the presence of geological structures that might produce oil. From a judgment for the plaintiff, the defendant appeals.

Judgment reversed and cause remanded for a new trial.

A. W. Bounds, William M. Wolf, Houston, for appellant.

L. B. Cooper, Cotulla, for appellee.

NORVELL, Justice.

The Stanolind Oil and Gas Company has appealed from a judgment rendered against it in favor of C. F. Lambert for the destruction of two of Lambert's water wells. Trial was to the court without a jury and findings of fact and conclusions of law were requested and filed. The trial judge concluded that the doctrine of res ipsa loquitur was applicable to the case and based the judgment thereon.

Appellant, among others, presents the contention that the evidence is insufficient to support a recovery under the doctrine relied upon and consequently the judgment must be reversed.

The following statement is based upon the trial court's findings:

The appellee, Lambert, was the owner of two water wells approximately 200 feet in depth. Both wells had been used more than six years. On May 1, 1948, the appellant's agents and servants, while operating a seismograph and doing exploratory work in locating geological structures that might produce oil, drilled three test holes approximately 100 feet deep along a road adjacent to appellee's property. One of the holes was 600 or 700 feet from one of appellee's wells, and another of said holes was 600 or 700 feet from appellee's other well. The appellant discharged three shots of explosives in each of the holes, "consisting of from ten to fifteen pounds of dynamite or other high explosive per shot;" and "such shots fired at such depths of such quantity and under the circumstances shown will test sands to the depth of 10,000 feet." The sub-surface sands in the vicinity of appellee's property are fine sands and easily shaken and disturbed. Immediately after said shots were fired both of appellee's wells sanded up and thereafter failed to produce water of any value and were destroyed. The location of the test holes and the firing of the shots were wholly under the control and management of the appellant and "it is so unusual for wells such as plaintiff's (appellee's) to have been in existence for the time these wells are shown to have been existing, producing water in abundance, for both of them to suddenly cave, sand up and be destroyed simultaneously, that in the very nature of things such occurrence must have been produced by negligent acts of the defendant (appellant) in the firing of said shots or in the location of said shots in close proximity to plaintiff's said water wells." The trial judge concluded as a matter of law that the appellee was entitled to recover judgment against the appellant for the sum of $971 under the doctrine of res ipsa loquitur.

The asserted liability of appellant to appellee must be based upon negligence. In the case of Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 224, Chief Justice Cureton, speaking for the Supreme Court, made the following statement: "The storage and use of explosives is clearly within the rule of absolute liability laid down in Rylands v. Fletcher (L.R. 3, H.L. 330); but, as to these, we have also changed from the common-law rule, and predicate liability upon negligence, in the absence of controlling statutes or facts so obvious as to constitute a nuisance as a matter of law. 19 Tex.Jur. p. 458, § 4; p. 459, § 5; p. 461, § 7; p. 462, § 8; p. 464, § 9."

Proof of the fact that appellee's wells sanded up immediately after the appellant had set off certain charges of explosives is insufficient of itself to establish liability. In the case of Indian Territory Illuminating Oil Co. v. Rainwater, Tex.Civ. App., 140 S.W.2d 491, 492, it appeared that appellant's seismograph crew set off a charge of explosives in a 46-foot hole within 150 feet of appellee's cistern. The explosion caused a vibration which broke the plastered walls of the cistern and resulted in the loss of water stored therein. The Eastland Court of Civil Appeals reversed a judgment in favor of the owner of the cistern and, speaking through Mr. Justice Grissom, said: "Negligence was certainly not shown as a matter of law, and we are of the opinion that the evidence was insufficient to have authorized a finding of negligence by the jury had the issue been...