Sun Pipe Line Co., Inc. v. Kirkpatrick

• Citation: 514 S.W.2d 789
• Decision Date: 19 September 1974
• Docket Number: No. 7590,7590
• Parties: SUN PIPE LINE CO., INC., et al., Appellants, v. George P. KIRKPATRICK, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 789

514 S.W.2d 789

SUN PIPE LINE CO., INC., et al., Appellants, v. George P. KIRKPATRICK, Appellee.

No. 7590.

Court of Civil Appeals of Texas,

Beaumont.

Sept. 19, 1974.

Rehearing Denied Oct. 31, 1974.

Daniel V. Flatten, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, for appellants.

H. A. Coe, Jr., Kountze, for appellee.

KEITH, Justice.

Defendants appeal from an adverse judgment wherein plaintiff recovered for damage done to his growing timber and to his fences. Plaintiff owned a large tract of land in Montgomery County with Sun Pipe Line Company having an easement approximately thirty feet in width across the northern boundary thereof. ¹ Limbs growing upon trees on plaintiff's lands obscured the surface of the easement and prevented the use of airplanes to patrol and inspect the pipe line for leaks. Sun engaged the defendant, Mobley Co., Inc., to spray these overhanging limbs with a chemical spray. Mobley sprayed the right-of-way and plaintiff testified that a large number of his trees were killed; others, weakened by the spray, became infested with beetles and died; that the trees which were killed feel across his fences causing further damage.

The record does not disclose precisely the chemical composition of the spray used in the trimming operation. ² This spray was shot out of a device on a truck toward the limb which was to be removed and a blower attachment controlled by the operator was designed to cause the spray to come in contact with the limb to be removed.

The Court submitted the cause upon the negligence theory in accordance with plaintiff's pleadings and we summarize the findings in the margin. ³ The jury also found (in answer to Special Issue No. 17) that Mobley was acting as an independent contractor in spraying the right-of-way. The award of damages is not challenged.

Plaintiff had a very general allegation of trespass in his pleadings but no issues on trespass were submitted to the jury nor did plaintiff request any issues which would have submitted the trespass theory to the jury. For the first time, in his motion to disregard the nonfindings of negligence, plaintiff contended that Sun could not escape liability upon the finding that Mobley was an independent contractor 'because the application of the chemical had such a potential for danger as to be classified as inherently dangerous and Sun Pipe Line Co., Inc., is liable for damages resulting from such work, even if performed by an Independent Contractor.' He sought to have the Court disregard the nonfindings of negligence and to enter judgment for plaintiff on the remaining findings.

Plaintiff's motion was granted and the Court disregarded the jury's answers to Issues Nos. 2, 6, 8, 11, and 17, making these findings in the judgment:

'The spraying of herbicides into the air is inherently dangerous, and that the Sun Pipe Line Company owned (sic) Plaintiff a non delegable duty not to allow the herbicide to drift onto Plaintiff's land that it could not delegate to others because of the inherently dangerous nature of the operation, and that both Defendants are jointly and severally liable to Plaintiff herein for damages caused by the said spraying operations; The Court further finds that the answer to special issue number 17, should be and is hereby disregarded by the court; the Court finds that the spraying operations were conducted from a pipe line right of way on Plaintiff's land with a herbicide spray that was intentionally sprayed up into the air at times when a wind or breeze was blowing and that same drifted off the pipe line right of way onto Plaintiff's land on which Defendants had no easement or right to spray, and that such constituted a trespass because the act of spraying the herbicide into the air was intentional and such act resulted in the trespass consisting of the spreading or drifting of herbicide onto Plaintiff's land; The Court is of the opinion that the jury's answers to special issues numbers 2, 6, 8, and 11 should be and same are hereby disregarded and that no negligence need be proven as same is not necessary to support a recovery herein based on the trespass resulting from the spraying operations.'

OPINION

It is readily apparent from the foregoing summary of the proceedings that we are confronted by two basic questions: (a) one of substantive law, i.e., Was a finding of negligence a sine qua non to plaintiff's recovery? and (b) the procedural question, Was the trial court authorized to enter the judgment in the absence of jury findings or a request therefor? We will discuss the questions in the order stated.

In Baer v. Dallas Theater Center, 330 S.W.2d 214, 219 (Tex.Civ.App ., Waco, 1959, error ref. n.r.e.), the court said: 'The general rule is that the owner of the easement may prepare, maintain and improve it 'to an extent reasonably calculated to promote the purposes for which it was created." The removal of the overhanging limbs was necessary in order that Sun could reasonably use the easement for its purposes. Indeed, plaintiff concedes that Sun had the right to remove the offending limbs from his trees by manual means, i.e., severance by a saw or an ax. This concession is one imposed by law upon the owner of the servient estate because every easement carries with it the right to do whatever is reasonably necessary for the full enjoyment of the easement itself. Knox v. Pioneer Natural Gas Company, 321 S.W.2d 596, 601 (Tex.Civ.App., El Paso, 1959, error ref . n.r.e.); Phillips Petroleum Company v. Terrel, 404 S.W.2d 927, 929 (Tex.Civ.App., Amarillo, 1966, no writ).

Sun was required to exercise its rights of use of the easement with due care and without negligence. For, as stated in Lone Star Gas Co. v. Hutton, 58 S.W.2d 19, 21 (Tex.Com.App., 1933, holdings approved), the Court said: 'If grantee (Gas Company) exercise the rights conferred in the conveyance with due care and without negligence, then no damages were recoverable.' Further, the Court said: 'The burden rested upon Hutton and wife to allege and prove that the gas company was guilty of negligence in this respect.' As applied to the facts of this case, the language of Texas Power & Light Co. v. Casey, 138 S.W.2d 594, 597--598 (Tex.Civ.App., Fort Worth, 1940, error dism. jdgmt. cor.), is highly persuasive:

'It is well settled by the decisions of our Supreme Court that where one has an easement right over land such as the one possessed by defendant in this case, in order for the owner of title to the land to recover damages growing out of the use of such easement, he must show that the defendant was guilty of negligence in the manner in which it was used. Lone Star Gas Co. v. Hutton, Tex.Comp.App., 58 S.W.2d 19, and decisions there cited; Houston & E. Tex. Ry. Co. v . Adams, 58 Tex. 476; Gulf Pipe Line Co. v. Watson, Tex.Civ.App., 8 S.W.2d 957.'

The trespass theory of plaintiff, resting as it does upon the Court's findings and not those of a jury, presupposes an unreasonable use of Sun's possessory rights in the easement. But, the doctrine of Rylands v. Fletcher ⁴ has long since been repudiated in Texas. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S .W.2d 221 (1936). Chief Justice Cureton enunciated the rule applicable to this case saying:

'The plaintiffs in error in their application say that the Court of Civil Appeals in its opinion has held that in order for plaintiffs in error (the land owners) to recover because the defendants in error permitted salt water to overflow their land, kill the vegetation, and pollute the water of their live stock, 'they must allege and prove some specific act of neglect or must allege and prove that the water polluted was a water course.' In this conclusion we think the Court of Civil Appeals stated the correct rule.' (96 S.W.2d 221--222, emphasis in text)

From the foregoing authorities it is abundantly clear that plaintiff labored under the burden of securing a finding of negligence on the part of Sun in the removal of the overhanging limbs from the easement unless excused by his theory found by the Court--a trespass through the use of an inherently dangerous chemical . Even here, as to Sun, plaintiff must fail because the jury found that Mobley was an independent contractor and no challenge is made of the evidence supporting that finding.

In Pitchfork Land and Cattle Company v. King, 162 Tex. 331, 346 S.W.2d 598 (1961), a group of cotton-farmer plaintiffs joined as defendants the aerial sprayer company and his employer, the ranch owner, in a suit for damages to their cotton crops allegedly caused by the drifting of herbicide. The Supreme Court held that since the aerial sprayer was an independent contractor, the landowner who hired the sprayer was not liable for the sprayer's negligence. ⁵

When we return to the crop dusting cases, plaintiff again is confronted with a well established body of law requiring a showing of negligence in order to recover. Vrazel v. Bieri, 294 S.W.2d 148, 152 (Tex.Civ.App., Galveston, 1956, error ref. n.r.e.), is typical. Plaintiff there sued the rice-farming landowner and the crop duster jointly because a herbicide sprayed on the rice fields drifted onto his cotton crop causing damage. The jury found the damage was caused by the spraying operation but acquitted the defendants of negligence; and, further, it found that the duster was an independent contractor. The Court noted the repudiation of the doctrine of Rylands v. Fletcher, supra, and continued:

'Under our law it is clearly required, in a case such as the present, before an injured suitor may recover, that he obtain fact findings of actionable negligence. In the absence of these, he is not entitled to judgment. A finding of injury is not enough. Here not only did appellant fail to obtain such findings but the findings returned by the jury negative negligence. Legally speaking, the verdict returned by the jury established that plaintiff was not entitled to judgment but that defendants were.'

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