Warren Petroleum Corp. v. Martin

• Decision Date: 05 February 1954
• Docket Number: No. 15481,15481
• Citation: 265 S.W.2d 199
• Parties: WARREN PETROLEUM CORP. v. MARTIN.
• Court: Texas Court of Appeals

Page 199

265 S.W.2d 199

WARREN PETROLEUM CORP. v. MARTIN.

No. 15481.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 5, 1954.

Rehearing Denied March 5, 1954.

Nelson, Montgomery, Robertson & Sellers, and Allan D. Montgomery, Wichita Falls, for appellant.

Thornton & Thornton and R. E. Thornton, Olney, for appellee.

BOYD, Justice.

Appellee J. W. Martin, the surface lessee of a tract of land, filed this suit against appellant Warren Petroleum Corporation, who owned and was operating an oil and gas lease thereon, for damages he claimed he sustained on account of the death and injury to his cattle, resulting from their drinking oil which he alleged was negligently allowed by appellant to escape from a well through defective pumping equipment and accumulate on the surface of the land. Judgment was for appellee, hence this appeal.

The jury found that appellant permitted oil to escape from the well; that such was negligence; that the cattle drank such oil, some dying therefrom and some being injured thereby, to appellee's damage in the amount of $1,634.36; that appellant did not intentionally injure such cattle, and that appellee was not guilty of contributory negligence in permitting his cattle to graze on the leased premises.

Appellant contends that there was no evidence, and that the evidence was insufficient, to establish negligence on its part, and that appellee was guilty of contributory negligence as a matter of law in allowing his cattle to graze around and near appellant's installations, especially after the first cow died, since he was then put on notice that his cattle had access to oil from some source. These questions are not free from difficulty.

Appellee's evidence was to the effect that the pumping equipment on the oil well operated by appellant was in such defective condition that crude oil pumped from the well was thrown up and out from the pump, and was permitted to escape from the well in such quantities as to gather in pools on the ground, and some of it was carried by the wind several feet from the pump, and was thereby available to and was consumed by appellee's cattle. Two veterinarians testified that the cause of the death of four cows and the injury to others was their drinking crude oil. There was evidence that the cattle did not have access to any oil other than that around the alleged defective pump.

Appellant's oil lease was prior to appellee's grazing lease, and appellant therefore owned the dominant estate and appellee owned the servient estate. Appellant had the right to use so much of the leased premises as was reasonably necessary for oil well operations. Joyner v. R. H. Dearing & Sons, Tex.Civ.App., 112 S.W.2d 1109; Carter v. Simmons, Tex.Civ.App., 178 S.W.2d 743. There is no dispute as to this in the case. The dominant owner, however, must exercise his rights with due regard to the rights of the owner of the servient estate. Pitzer & West v. Williamson, Tex.Civ.App., 159 S.W.2d 181; Gregg v. Caldwell-Guadalupe Pick-Up Stations, Tex.Com.App., 286 S.W. 1083; Grubstake Inv. Ass'n v. Coyle, Tex.Civ.App., 269 S.W. 854; Texas Pacific Coal & Oil Co. v. Truesdell, Tex.Civ.App., 187 S.W.2d 418; 58 C.J.S., Mines and Minerals, § 273, p. 774.

It seems to be established by the decisions in this state that ordinarily the operator of an oil lease is not required to fence his installations in the absence of a contract so to do, and that he is not liable for damages to the surface owner's property unless the damages result from the breach of a legal duty to such owner. Sinclair Prairie Oil Co. v. Perry, Tex.Civ.App., 191 S.W.2d 484; Baker v. Davis, Tex.Civ.App., 211 S.W.2d 246; Pitzer & West v. Williamson, supra. It has been held that in the absence of negligence such operator is not liable for damages caused by the escape of noxious substances from wells, ponds, or overflowed tanks. The rule of res ipsa loquitur is said not to apply but that recovery may be had only upon allegations and proof of specific acts of negligence. Turner v. Big Lakc Oil Co., 128 Tex. 155, 96 S.W.2d 221; Cosden Oil Co. v. Sides, Tex.Civ.App., 35 S.W.2d 815; Carter v. Simmons, supra.

Though the oil lease operator is not liable for damages to the surface owner's livestock merely because he fails to fence his installations or otherwise to keep such livestock away, there is authority for the proposition that the must protect the surface of the ground the use of which is not necessarily incident to the attainment of the objects of his contract. Pulaski Oil Co. v. Conner, 62 Okl. 211, 162 P. 464, L.R.A.1917C, 1190; Gulf Pipe Line Co. v. Pawnee-Tulsa Petroleum Co., 34 Okl. 775, 127 P. 252, 41 L.R.A.,N.S., 1108; Williams v. Gibson, 84 Ala. 228, 4 So. 350, 5 Am.St.Rep 368; Jones v. Wagner, 66 Pa. 429, 5 Am.Rep. 385; General Refractories Co. v. Swetman, 303 Ky. 427, 197 S.W.2d 908; 31-A Tex.Jur., p. 213, sec. 131. If the escaping oil gathered on ground not reasonably necessary to be used in the operation of the well, under the above authorities it would seem that appellant was under the duty to use ordinary care to protect that surface.

The evidence raised the issue as to whether appellant's dominant estate extended to and included the area on which the escaping oil accumulated, that is, whether the use of the surface in that particular area was reasonably necessary in the operation of the well; and the issue not having been submitted or requested is deemed to have been found by the court in such manner as will support the judgment. Rule 279, T.R.C.P.

Both negligence and proximate cause may be established by circumstantial evidence. Universal Atlas Cement Co. v. Oswald, Tex.Civ.App., 135 S.W.2d 591, affirmed 138 Tex. 159, 157 S.W.2d 636; 65 C.J.S., Negligence, § 243 p. 1068 and § 244, p. 1090, and cases there cited.

Appellant strongly relies on Carter v. Simmons, supra, and other cases, as authority for the proposition that the evidence is insufficient to show negligence on its part. In the Carter case the court said that the fact that a lease operator's oil tanks overflowed was not proof of negligence. However, the court also said that it was not shown that the injured cattle drank any oil that had overflowed from the tanks; and since the evidence disclosed that the cattle had access to other oil, the plaintiff under his pleadings could not recover without showing that the oil that injured his cattle came from the overflowed tanks. Had the court not made the latter holding, this case would be in point in appellant's favor; but since no recovery could be had in any event, we feel that it is not so authoritative as it might otherwise have been. The other cases cited by appellant in this connection may be distinguished on their peculiar facts.

Generally, the existence of negligence is a question of fact; and that is so in every case unless...