Sunray DX Oil Co. v. Thurman, 5-3395

• Decision Date: 14 December 1964
• Docket Number: No. 5-3395,5-3395
• Parties: SUNRAY DX OIL COMPANY, formerly Sunray Mid-Continent Oil Company, Appellant, v. Mrs. W. E. THURMAN, Appellee.
• Court: Arkansas Supreme Court

Page 482

384 S.W.2d 482

238 Ark. 789

SUNRAY DX OIL COMPANY, formerly Sunray Mid-Continent Oil

Company, Appellant, v. Mrs. W. E. THURMAN, Appellee.

No. 5-3395.

Supreme Court of Arkansas.

Dec. 14, 1964.

Keith, Clegg & Eckert, Magnolia, M. Darwin Kirk, J. P. Greve and Ben Hatcher, Tulsa, Okl., for appellant.

Chambers & Chambers, Magnolia, for appellee.

HARRIS, Chief Justice.

Appellee was the owner of a certain forty-acre tract located in Columbia County. On September 15, 1958, Shell Oil Company, which held on oil and gas lease covering said land, assigned the lease to Sunray DX Oil Company, appellant herein. The lease recites that it is given to the lessee 'for the purposes of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building tanks, power stations, telephone lines, and other structures thereon to produce, save, take care of, treat, transport and own said products and for dredging and maintaining canals, constructing roads and bridges, and building houses for its employees, and, in general, for all appliances, structures, equipment, servitudes and privileges which may be necessary, useful or convenient to or in connection with any such operations conducted by lessee thereon, * * *.' On May 21, 1963, appellee instituted suit against the company, seeking damages in the amount of $6,500.00 ($4,000.00 actual and $2,500.00 punitive), alleging that her land had been permanently injured because of the fact that appellant had deliberately, and by negligent acts, dumped salt water and waste oil on the land, and had permitted salt water to flow upon it, with full knowledge that the salt water was a poisonous substance, and would kill and destroy vegetation; that these substances did destroy all vegetation. Appellant answered, denying the allegations of the complaint, and denying any improper use of appellee's land. It was further asserted that if appellee had any cause of action, such cause was barred by the statute of limitations. The case proceeded to trial, and at the conclusion of appellee's evidence, appellant moved for a directed verdict, contending that the evidence was insufficient to establish a cause of action, and further, that the action was barred by the three-year statute of limitations. The court overruled the motion, and appellant declined to offer any evidence, standing on the motion for a directed verdict. After receiving instructions, the jury retired, and returned a verdict in the amount of $2,000.00, with interest at 6% per annum. From the judgment entered in accordance with the verdict, appellant brings this appeal.

During the oral argument, it was pointed out that the testimony reflected that producing oil wells had been located and developed in the center of each of the tenacre tracts of the forty acres. The four wells were operated from a unit located in the center of the forty-acre tract, and the fluid content from each of the four wells was pumped to a large metal tank (called separator) near the center of this forty acres. The salt water was 'bleeded' from the tank to an earthen pit, which had been dug also near the center of the tract. Salt water was then pumped from the pit to a disposal well located on another tract of land.

According to appellee's evidence, the earthen pit was low in one place, which permitted the salt water to overflow, and this overflowing particularly occurred when it rained. Appellee's contention was, and is, that the salt water overflowed from the pit to the surrounding land, destroying valuable timber, and making the land unfit for further agricultural use.

For reversal, it is first asserted that appellee's claim is barred by the three-year statute of limitations. In raising this point, appellant makes a two-pronged attack. First, it is pointed out that if the pit were of a permanent character, and its construction and continuance were necessarily an injury, the damage was original, i. e., the very nature of the construction made evident the fact that damage would occur, and compensation should have been sought at once. If such were the case, the statute of limitations began to run upon the construction of the pit, and suit was not instituted within the statutory period. Appellant has stated the law correctly, and we have so held numerous times. See St. Louis Iron Mountain & Southern Railway v. Biggs, 52 Ark. 240, 12 S.W. 331; St. Louis Iron Mountain and Southern Railway Company v. Anderson, 62 Ark. 360, 35 S.W. 791; and Brown v. Ark. Central Power Company, 174 Ark. 177, 294 S.W. 709. These holdings are not applicable to the case before us, however, nor does appellant vigorously argue that this type of construction was such as to constitute an injury from the time the pit was originally dug on the premises. The pit itself was not the cause of the alleged damage sustained; rather, the fact that it overflowed, spilling the salt water onto the lands, occasioned appellee's complaint. But appellant does argue with vigor that the statute of limitations began to run more than three years before the institution of the suit. The complaint was filed by appellees in May, 1963, and appellant, in making its argument, refers to the fact that there was testimony of damage to the lands in question in 1959. It is true that there was some testimony that damage was discovered in 1959. W. H. Thurman, son of appellee, testified that every time it rained, the pit overflowed, the salt water spreading in every direction, except south, killing timber and vegetation near the center of the forty acres; that damage occurred in 1959, and increased in 1960. W. E. Thurman, a grandson of appellee, testified that the salt water began to damage the land around the pit in 1959. 'Then it started easing on out * * * every time it would rain more it would go on out further * * *.' H. D. Thurman, another son of appellee, testified that while there was damage in 1959, it constantly grew worse, 'along about '61, along through the winter was when the pits overflowed so and the summer of '61 was when it killed...