Western Geophysical Co. of America v. Martin, 43515

• Decision Date: 03 May 1965
• Docket Number: No. 43515,43515
• Citation: 253 Miss. 14,174 So.2d 706
• Parties: WESTERN GEOPHYSICAL COMPANY OF AMERICA v. Vallace MARTIN.
• Court: Mississippi Supreme Court

Page 706

174 So.2d 706

253 Miss. 14

WESTERN GEOPHYSICAL COMPANY OF AMERICA v. Vallace MARTIN.

No. 43515.

Supreme Court of Mississippi.

May 3, 1965.

W. Vol Jones, Waynesboro, George P. Hewes, III, Brunini, Everett, Grantham & Quin, Jackson, for appellant.

Stanford Young, Waynesboro, for appellee.

BRADY, Justice.

This is an appeal from the Circuit Court of Wayne County, wherein the appellee brought suit against the appellant for damages for the alleged pollution of his water well, caused by the negligence of the appellant. From an adverse judgment, the Western Geophysical Company of America appeals. Stated briefly, the pertinent facts are as follows:

The Western Geophysical Company of America, hereinafter called Western, is engaged in seismograph work, the main purpose of which is to locate subsurface formations capable of producing oil. This work involved the detonating of small charges of dynamite in relatively shallow holes, thereby sending out energy waves which in turn bounced off the lower formations and traveled back to the surface where they were detected and recorded by extremely sensitive instruments.

Appellee charged that on May 6, 1963, around three o'clock in the afternoon, the appellant detonated a charge of dynamite close to the appellee's property and a water well of the appellee, so that the appellee's water well, which had been operating properly, ceased to do so and began to pump sand, which ruined the pump. More specifically, the appellee charged Western's wrongful act was 'the firing of dynamite in the water stream that your plaintiff's water well was in and the firing of dynamite or other explosives too close to the plaintiff's house and water well.' Appellee further charged that the vibration damaged the strainer, causing the pump to pump sand and rusty water, and that the sand burned up the pump. The appellee contended that the explosion was the proximate cause of the loss of his well and that he sustained actual and punitive damages in the sum of $2,500.

The appellant denied the negligence or that it caused the appellee's damage. The jury brought in a verdict for $1,000. Appellant made a motion at the conclusion of appellee's testimony for a directed verdict, which was overruled. At the conclusion of appellant's testimony, appellant made a motion for a peremptory instruction, which was also overruled. The overruling of these motions is assigned as error by the appellant, who also urges that the verdict of the jury is contrary to the law and the overwhelming weight of the evidence.

Other errors are assigned by the appellant, among which are, that the verdict is so grossly excessive as to evince bias, passion and prejudice, the refusing of the trial court to grant certain instructions requested by the appellant and the granting of certain instructions requested by the appellee, the sustaining of objections of the appellee to evidence offered by appellant, and to questions propounded to witnesses upon the trial of the cause below on behalf of the appellant. The record discloses that five witnesses testified in behalf of the appellee; that the testimony of four of them was by the appellee, his wife, his father-in-law, and a tenant who lives on appellee's place. The fifth witness testifying for the appellee was a Mr. Burl Smith, who was a former employee of Western. Mr. Smith merely testified to the fact that Western shot in the area and that shortly thereafter he was called to the appellee's house for the purpose of inspecting his well, and that he did inspect the well and found that it was making red, rusty water. The record does not disclose that Mr. Smith knew or could have known when the well first began to make red, rusty water, and the testimony of Mr. Smith is insufficient to fix liability for any damage which occurred to the well.

The testimony of the appellee, his wife, his father-in-law and his tenant was much the same, namely, that the well was furnishing an ample supply of pure water for six years prior to the explosion, and just before the explosion, but that promptly thereafter the water was red, sandy, and unfit for human consumption.

The record is undisputed that a fifteen pound charge of dynamite was detonated at a depth of fifty-five feet, a distance of eight hundred feet from the well of the appellee. This shot did not occur on appellee's land but occurred on adjacent land, where permission to detonate had been obtained. On this adjacent land there was a water well which was not affected. In spite of the appellant's attempts, the court would not permit appellant's witnesses to testify specifically with reference to this well, which was located only six hundred feet from the explosion and which obviously was not injured.

It is undisputed that appellee's well is one hundred and eighty feet deep. The testimony of appellant's geologist, that the water sand supplying appellee's well dipped to the south or southwest, is undisputed. It is also undisputed that the explosion was south of the well and not in the path of the movement of water thereto. It is uncontradicted that the explosion was not in the water sand, but in the strata above the water sand, and that it took place at a depth of fifty-five feet. It is undisputed that the well was bottomed near the base of the water sand, a vertical distance of one hundred and fifteen feet below the explosion.

Likewise, it is undisputed that, approximately five days subsequent to the explosion, the appellee drilled another well to the same depth, and located this well only ten feet from the well which he claims was damaged. It is undisputed that this second well produces good water, and abundantly.

The proof shows that the alleged damage to the strainer claimed by the appellee was merely an assumption, for the reason that the strainer had never been pulled and was still in the ground. The appellee himself admitted that he did not know of his own personal knowledge the effect of a charge of dynamite on the subsurface formations in the earth. The appellee stated he did not know of his own personal knowledge that the shooting caused the damage to his well; that he assumed that this was so.

It is undisputed that only two shots were fired, AB 545 and AB 547; that AB 547 was the closest, and was located eight hundred feet from the well in question. The hole which was bored for the explosion was four inches in diameter. The appellee admitted that he did not know whether the strainer was all right or not, because it was still down in the ground; that he assumed that something was damaged down there; that he knew the sand was coming from somewhere.

The record fails to disclose that the appellee made any effort to find out the cause of his trouble. He merely assumed that, because Western had fired a shot somewhere behind his house and his well had gone bad, the shot was the proximate cause of his well damage.

Appellee proved that the cost of drilling the new well was $458.36. He and his wife testified as to the inconvenience they suffered because they had to carry water as a result of the loss of the water well. He testified also that he had to move his pump house and that his wife had to carry the clothes to a washerteria located some distance from her home and also take care of young children at the same time.

In contrast to this testimony of the appellee, the appellant put on members of the crew who were operating in the vicinity of appellee's land, who testified with reference to their operations. Mr. Lawrence Hollier, superintendent of the crew, who had participated in 25,000 detonations, testified that the company has a policy never to fire shots closer than six hundred feet to a well or residence; that this distance is always maintained, not because there is any fear of damage but because this distance seems to satisfy most landowners and reduces the number of claims.

Mr. Burl Smith, a survey helper and permit man, and a former employee, testified that he obtained permission from all persons upon whose property they went and shot. Mr. Smith testified that the closest shot actually fired was AB 547, at a distance of eight hundred feet from appellee's well.

Mr. McGee, who actually fired the charge, testified that part of his job was to note certain information relative to each shot, which was recorded on the 'jacket' or container for a magnetic tape, which automatically recorded vibrations from the shots. The information recorded by Mr. McGee, and the data concerning the explosions, indicate that both of these shots were not fired on May 6 but on April 29, 1963. The charge of dynamite used in each was fifteen pounds. The charge in AB 545 was detonated at a depth of sixtyfive feet, and the charge in AB 547 was detonated fifty-five feet from the surface, although the hole was drilled to a total depth of seventy feet. Mr. McGee also testified that these were the only shots fired in the vicinity of appellee's well, and that no shots were fired in that vicinity on May 6, 1963.

Mr. Henry Toler, a consulting geologist with over thirty years' experience in the state of Mississippi, who was employed for six years by the State Oil and Gas Board, two of which years he served as the State Oil and Gas Supervisor and chief geologist, testified that he was familiar with the area involved in the lawsuit; that he had made a personal on-the-ground inspection of the area and that he had compared the cross-section map or plat showing the surface of the ground and the subsurface formations of the area in question, down to a depth of approximately eight hundred feet. This plat is identified as 'Exhibit One' to Mr. Toler's testimony.

Mr. Toler testified as reflected on the map, that Western's shot AB 547 was located in the Catahoula formation. The bottom of this shot point hole is about thirty to thirty-five feet from the base of the Catahoula formation, the total depth of said formation being approximately one hundred feet at...