Western Oil Fields Corporation v. Nowlin

• Decision Date: 18 November 1926
• Docket Number: (No. 413.)
• Parties: WESTERN OIL FIELDS CORPORATION v. NOWLIN.
• Court: Texas Court of Appeals

288 S.W. 554

WESTERN OIL FIELDS CORPORATION v. NOWLIN.

(No. 413.)

Court of Civil Appeals of Texas. Waco.

November 18, 1926.

Appeal from Limestone County Court; H. F. Kirby, Judge.

Action by Henry Nowlin against the Western Oil Fields Corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. E. Whightsel, of Wichita Falls, and J. E. Bradley, of Groesbeck, for appellant.

E. G. Lloyd, Jr., of Alice, for appellee.

BARCUS, J.

This suit was instituted by appellee against appellant, seeking to recover damages which he claimed to have suffered by reason of appellant having permitted crude petroleum, salt water, and other deleterious substances to escape from oil wells which it was operating on the watershed of Jack's creek and Navasota river, which appellee claims destroyed his crops of corn and cotton on 65 acres of land which he was cultivating on the third and fourth for the year 1924. The cause was tried to a jury, submitted on special issues, and resulted in a judgment being rendered for appellee for $225.

The record discloses that appellee had leased and rented on the third and fourth for the year 1924 about 160 acres of land in Limestone county for farming purposes; that in May or June, 1924, the excessive high waters of Navasota river, caused by rains, flooded about 60 acres of said land, 55 acres of which appellee had planted in cotton and 5 acres in corn. The record further shows that appellant for a number of years has owned and operated a number of oil wells on the watershed of Jack's creek and Navasota river, and it is further shown by the record that a number of other oil companies have been operating oil wells in the same territory which are drained by the same watershed. Appellee claimed that by reason of there being oil, salt, and other deleterious ingredients contained in the water which overflowed his crops, that same caused the crops to be poisoned and killed, and claimed that the land became so contaminated with said ingredients that cotton would not thereafter grow on said land during said year, that, as a result, he lost 55 acres of cotton and 5 acres of corn, and that the amount of the damage caused him by the salt, oil, and other substances escaping from appellant's leases was $750.

The court submitted four issues, and in response thereto the jury found that appellant permitted the crude petroleum, salt water, and bottom sediments to escape from their leases into Jack's creek and the Navasota river and their tributaries, and that same became mixed and commingled with the waters of Navasota river, and that the waters of said river, after being mixed with said substances, overflowed appellee's land in the spring of 1924 and destroyed part of his crops of corn and cotton, that the total value of all of plaintiff's corn and cotton that were destroyed by the waters of Navasota river so mixed with said substances was $1,400, and that the proportionate part thereof, which was caused by the salt water, crude petroleum, and bottom sediments escaping from appellant's leases, was $225.

Appellant, by several assignments, contends that the trial court erred in submitting to the jury the issues as to the value of appellee's corn and cotton which were destroyed, and his damages occasioned thereby, and complains of the failure of the trial court to set aside said findings because same were not supported by the testimony. We sustain these assignments. The only evidence that was offered by appellee as to the value of his crops was that the overflow came either in May or the early part of June, 1924; that at said time his corn was beginning to tassel, and that his cotton was from 4 to 8 inches high; that, in his opinion, his corn would have made 66 2/3 bushels and he would have been able to obtain $1.25 a bushel therefor in the fall, that his 55 acres of cotton destroyed would have made 24 or 25 bales and he would have gotten at maturity 20 to 25 cents a pound therefor, that his cotton would have been worth $150 a bale and his cottonseed from $40 to $60 a ton. He did not offer any evidence with reference to what it would have cost him to cultivate and gather said crops. In the early case of I. & G. N. Ry. Co. v. Pape, 73 Tex. 501, 11 S. W. 526, the Supreme Court laid down the following rule with reference to damages which are recoverable by reason of growing crops being partially destroyed:

"It seems to us that, as a general rule, the most satisfactory means of arriving at the value of a growing crop is to prove its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation, as well as the cost of its preparation and transportation to market. The difference between the value of the probable crop in the market, and the expense of maturing, preparing, and placing it there, will in most cases give the value of the growing crop with as much certainty as can be attained by any other method."

This rule seems to have been followed by an unbroken line of authorities. In order for a party to recover, it is incumbent upon him to furnish sufficient testimony on which the jury can base its verdict. Panhandle & S. F. Ry. Co. v. Reed (Tex. Civ. App.) 273 S. W. 611. There being no evidence in this case showing what the expenses incident to the cultivating, maturing, harvesting, and marketing of the corn and cotton would have been, there is no testimony from which the jury could determine the amount of damages. The only evidence with reference to appellee's damage was as to the amount of corn and cotton he would have made and their total value at the time of harvesting. Rumely Products Co. v. Moss (Tex. Civ. App.) 175 S. W. 1084; Bowman & Blatz v. Raley (Tex. Civ. App.) 210 S. W. 723; American Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co. (Tex. Com. App.) 208 S. W. 904; Gerhart v. Harris County (Tex. Civ. App.) 244 S. W. 1103; H. & T. C. Ry. Co. v. Wright (Tex. Civ. App....