Tidal Oil Co. v. Pease
| Decision Date | 24 November 1931 |
| Docket Number | 19971. |
| Citation | 5 P.2d 389,153 Okla. 137,1931 OK 740 |
| Parties | TIDAL OIL CO. v. PEASE et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where in an action against two or more defendants for damages for alleged pollution of streams used for watering stock, by depositing salt water and oil therein, tried to a jury, there is no evidence tending to connect one of such defendants with the acts charged, it is error to deny the separate motion of such defendant for a directed verdict presented at the close of all the evidence.
To make tort-feasors jointly liable, there must be some sort of community in the wrongdoing, and the injury must be in some way due to their joint work, but it is not necessary that they be acting together or in concert, if their concurring wrongful acts occasion the injury.
Where two defendants acting independently wrongfully pollute two separate streams of water flowing through a tract of land owned by plaintiff and used by him for pasturing live stock by casting salt water in the streams, the one defendant polluting one stream and the other defendant polluting the other stream, and the action is for injury to the live stock from drinking salt water from both streams, defendants are jointly liable for such injury.
In an action for damages for injury to live stock alleged to have been caused by the pollution of the water supply of a large pasture, consisting of several tracts of land, some owned or leased by plaintiff, and where plaintiff claims that he has the entire tract under fence, and was in the quiet and peaceable possession of all the land with the consent of the owner, and the answer is a general denial, and at the trial the evidence is in conflict as to whether the entire tract is under fence, it is error to respect evidence offered by one or more of the defendants tending to show that they are the owners of a part of the land included in the alleged pasture and that they were in possession thereof and had never consented to plaintiff pasturing his live stock thereon.
Appeal from District Court, Osage County; Jesse J. Worten, Judge.
Action by G. W. Pease and another against the Tidal Oil Company and others. Judgment for the plaintiffs, and the defendants appeal.
Reversed with directions.
West Gibson, Sherman, Davidson & Hull, James Patrick Gilmore Charles W. Grimes, and Y. P. Broome, all of Tulsa, and W. P. McGinnis, of Bartlesville, for plaintiffs in error.
Randolph, Haver, Shirk & Bridges, of Tulsa, for defendants in error.
This is an action commenced by defendants in error, hereinafter referred to as plaintiffs, against plaintiffs in error, hereinafter referred to as defendants, to recover damages on account of alleged pollution of the stock water supply in certain lands, a part of which plaintiffs claimed to own, and a part of which they claimed to have leased, or to have had peaceable and quiet possession of with the consent of the owner, all comprising a pasture of approximately 3,000 acres, consisting of: The S. 1/2 of section 36, township 21, range 11; the S. 1/2 of section 31, and the S. 1/2 of the N.W. 1/4 and the S. 1/2 of the N.E. 1/4 of section 31, township 21, range 12; the S.W. 1/4 and the S.W. 1/4 of the N.W. 1/4 of section 32, township 21, range 12; the N. 1/2 of section 6, and the N. 1/2 of the S.E. 1/4 of section 6, and the S.E. 1/4 of the S.E. 1/4 of section 6, township 20, range 12; all of section 5, township 20, range 12; the S. 1/2 of the S.W. 1/4 of section 4, township 20, range 12; the N.E. 1/4 of section 7, and the S. 1/2 of the N.W. 1/4 of section 7, township 20, range 12; the N. 1/2 of section 8, township 20, range 12; and the N.W. 1/4 of section 9, township 20, range 12, all in Osage county, Okl.
They charge that during the years 1926-27 defendants, in violation of section 6526 and section 7969, C. O. S. 1921, caused and permitted oil, salt water, and other deleterious substances to escape from their oil-mining operations and run over the surface of the land and run into draws and creeks located on or adjacent to the lands upon which defendants were operating, which draws and creeks were the water supply for cattle grazed by plaintiffs within said pasture; that 331 head of steers belonging to plaintiffs were injured by drinking the water thus polluted during 1926, in loss of flesh, appearance, class, and condition to the extent of $20 per head, to their damage in the sum of $6,620; that during 1927 20 head of plaintiffs' cattle of the value of $70 each died from the effects of drinking salt water; that in 1926 plaintiffs were compelled to lease certain pasture at a cost of $750; that in 1927 they lost 10 head of two year old cattle, each of the value of $20; that the same year they lost 4 cows of the value of $50 each, and 5 horses of the value of $20 each, and that 20 head of their milk cows were damaged $20 each in loss of flesh and appearance and in the amount of milk produced, all due to the said stock drinking salt water from said ponds and streams; that during 1927 they lost an opportunity to pasture some 800 head of cattle for other parties at $6 per head, to their damage in the sum of $4,800. They alleged that the negligent, wrongful, and unlawful acts of the defendants were so combined, concurrent, joint in commission and consummation and effect as to be incapable of separation. They prayed for judgment in the total sum of $14,470.
Each defendant answered separately by general denial.
At the close of plaintiffs' evidence, the court sustained a demurrer thereto as to the item claimed for loss of opportunity to pasture 800 head of cattle for other parties, thus eliminating $4,800 of plaintiffs' claim. Further on in the trial the court withdrew the item of $750, claimed for other pastures rented, and plaintiffs withdrew their claim of injury to their dairy cows, $400, thus leaving plaintiffs' claim limited to damages for 331 head of steers, $20 each, 20 head of cattle they claimed died of the value of $70 each, 10 head of two year old cattle they claim died at $20 each, 4 cows at $50 each, and 5 horses at $20 each, which they claimed died.
The verdict was for plaintiffs against defendants in the sum of $4,250.
Defendants filed separate motions for new trial, which were overruled, and all defendants appeal.
We consider first the assignments of error applying only to the defendant Tidal Oil Company. This defendant joins in the general brief, and also files separate briefs. At the close of plaintiffs' evidence, the Tidal Oil Company demurred separately, and renewed their separate demurrer at the close of all the evidence, and moved the court to direct a verdict in their favor. Separate demurrers and motion for directed verdict were overruled. In this we think there was error. There is no evidence whatever to show that the Tidal Oil Company had any interest whatever in the oil leases or operations of any of the other defendants. The only land that this defendant was operating upon that was claimed to be within the 3,000-acre pasture was the S. 1/2 of the N.W. 1/4 of section 31, township 21 N., range 12 E., in the extreme northwest corner of the so-called pasture. It was operating upon no other land from which salt water could possibly drain into or upon lands within said pasture. Furthermore, there was no evidence whatever that the Tidal Oil Company at any time permitted any oil or salt water to escape from wells they were operating, either within or without the pasture. One of the plaintiffs did, in his direct testimony, testify that the Tidal Oil Company had permitted salt water to escape from some of its wells operated on the eighty acres above mentioned and to flow into Cabin creek, which he claimed runs across the corner of this tract, but upon cross-examination he admitted that such was not the case. There is some claim that salt water from Cabin creek flowed into Delaware creek which ran into or along the line of the pasture at a point on the north line about one-half mile east of the lease of the Tidal Oil Company, but, if this be true, in the absence of any evidence tending to show that the Tidal Oil Company was in any way responsible for the pollution of Cabin creek or Delaware creek, there is no evidence to support the verdict and judgment as against the Tidal Oil Company.
It was therefore error to refuse to direct a verdict for the Tidal Oil Company.
Defendants contend that the court erred in submitting the cause to the jury because no joint and concurring acts or causes of injury were established as to the stock alleged to have been injured or killed. They contend that, because there was no evidence to connect all of the defendants with the pollution of any one stream or source of water supply within the pasture, there can be no joint recovery.
There was evidence tending to show pollution of two streams besides certain salt water ponds on certain parts of the land. Two separate streams ran across the land from south to north Cabin creek and Nester creek. A number of small branches drained into each. Nester creek runs nearly through the eastern part of the pasture, and Cabin creek heads in the southwestern part, runs northwest about half a mile and out on the west line, then into the pasture again for a short distance, and out again on the west line, where it flows west for about half a mile, and turns north, and runs about one...
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