Watson v. Pyramid Oil Co.

• Decision Date: 06 March 1923
• Citation: 248 S.W. 227,198 Ky. 135
• Parties: WATSON v. PYRAMID OIL CO. ET AL.
• Court: Kentucky Court of Appeals

248 S.W. 227

198 Ky. 135

WATSON v. PYRAMID OIL CO. ET AL.

Court of Appeals of Kentucky.

March 6, 1923

Appeal from Circuit Court, Estill County.

Action by C. R. Watson against the Pyramid Oil Company and others. After defendants' demurrers and motions to elect were sustained, and plaintiff declined either to elect or plead further, the petition was dismissed, and plaintiff appeals. Affirmed.

E. E Rice, of Irvine, Kelly Kash, of Lexington, John W. Walker, of Irvine, and W. L. Kash, of Jackson, for appellant.

Robert H. Winn, of Mt. Sterling, B. R. Jouett, of Winchester, John A. Judy, of Mt. Sterling, Riddell & Shumate, of Irvine, and J. M. Stevenson, of Winchester, for appellees.

CLAY J.

C. R Watson brought this suit against the Pyramid Oil Company, the Rex Oil & Gas Company, the A. & B. Pipe Line Company, the Bald Rock Oil Company, the Old Dominion Oil Company, the Eastern Gulf Oil Company, the National Refining Company, the Southwestern Petroleum Company, the Cumberland Pipe Line Company, the Columbia Oil Company, and the Great Northern Refining Company, to recover damages for injury to his land located on the waters of Miller's creek. It was charged in the petition that the several defendants permitted large quantities of crude oil and other deleterious liquids and substances to be placed along the banks of Big Sinking creek and its tributaries, from which places they were carried by the usual rains into the stream and deposited upon the lands of plaintiff. The petition also averred that after the oil and other substances were placed in the stream they became so mixed and intermingled that it was not possible to determine how much thereof was placed in the stream by each of the defendants, and prayed judgment against all of the defendants in the sum of $5,400. The several defendants filed demurrers and motions to elect. After the demurrers were sustained, the court gave plaintiff the right to elect against which defendant he would proceed. Having declined to elect or plead further, the petition was dismissed, and plaintiff appeals.

It is not alleged in the petition that the several defendants, in polluting the stream and injuring plaintiff's land, acted in concert or in pursuit of a common design. On the contrary it is apparent from the petition that each of the defendants acted separately and independently of the others. It has long been the settled rule in this and other states that where several persons act separately and independently, and not in concert, one of them is not liable for all the damage occasioned by their separate torts, but each is liable only for the damage done by his own act, to which rule no exception is created by the difficulty or impossibility of separating the damage. The rule was applied...