Williams v. Continental Oil Co.
| Decision Date | 22 September 1954 |
| Docket Number | No. 4819.,4819. |
| Citation | 215 F.2d 4 |
| Parties | WILLIAMS et al. v. CONTINENTAL OIL CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Duke Duvall, Oklahoma City, Okl., and A. G. C. Bierer, Jr., Guthrie, Okl. (G. O. Wallace, Wewoka, Okl., was with them on the brief), for appellants.
Richard W. Fowler, Oklahoma City, Okl. (Richard R. Linn, Oklahoma City, Okl., and R. O. Wilson, Ponca City, Okl., were with him on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
The only question necessary to be determined on this appeal is whether the trial court erred in refusing to enter an order under Rule of Civil Procedure 34, 28 U.S.C., requiring the defendant to permit the making of a deviational and directional survey of an oil and gas well belonging to the defendant for the purpose of ascertaining whether the underground terminus of the well is in the subsurface of a tract of land belonging to plaintiffs.
Paul S. Williams and others instituted the action against Continental Oil Company to recover damages for alleged underground trespass. Later, Fisher Oil Company was joined as a party defendant but it was subsequently eliminated from the case and no further reference will be made to it. Plaintiffs in composite own a certain tract of land and the mineral interests therein in Seminole County, Oklahoma. In 1928, the defendant drilled the Munnah Cosar Well No. 1 on a tract of land adjoining the land owned by plaintiffs. The well is located approximately 330 feet west and 330 feet north from the southwest corner of the land belonging to plaintiffs. The cause of action pleaded in the amended complaint was that as the well was being drilled it deviated from the vertical, went across the boundary line of plaintiffs' land, and extended into an oil bearing stratum known as the Wilcox Sand underneath plaintiffs' land; that by the operation of the well, the defendant had been drawing from plaintiffs' land oil, gas, and hydrocarbons; and that the defendant had converted and appropriated unto itself oil and gas belonging to plaintiffs. In the amended complaint, plaintiffs sought an accounting and, as incidental relief in the nature of discovery, an order requiring defendant to permit the making of a deviational and directional survey of the well. The defendant denied many of the material allegations contained in the amended complaint and pleaded limitations and laches.
The cause came on for hearing upon the application of plaintiffs for an order requiring the defendant to permit the making of the survey. At the beginning of the hearing, plaintiffs made an offer in open court. The substance of the offer was that the survey be made under the direction and supervision of the court; that it be made by a company of the court's own choice; that each party be given the privilege of having an expert representative present when the survey was made; that the report of the survey be made directly to the court; that plaintiffs advance the expense of the making of the survey, such expense to be later taxed as costs; that plaintiff file in the cause a reasonable bond to protect the defendant against any damage which might be done to the well in connection with the making of the survey; that the bond include protection against loss by virtue of the well being out of production during the making of the survey; and that plaintiffs would dismiss the action with prejudice if the report of the survey failed to show that the bottom of the hole was in the subsurface of the land belonging to plaintiffs. Defendant rejected the offer and in effect objected per se to the survey being made regardless of any offer which plaintiffs might make in connection therewith. The hearing was extended. The evidence covers more than 600 typed pages in the record. Findings of fact were made and an exhaustive opinion was delivered. The court proceeded upon the premise that such a survey would furnish competent and material evidence for use when the case came on for trial on its merits; that such a survey would greatly aid plaintiffs in the preparation of their case for trial; and that it was the only means by which it could be determined with certainty whether the well was bottomed in the subsurface of the land belonging to plaintiffs. But the court expressed the view that there was only a remote possibility that the deviation of the well was all in one direction, and that the hole probably pursued a wandering or gently spiraling course and is bottomed at a point with a horizontal deflection from the surface location of 500 feet or less. The court noted its recognition of the fact that the geological, seismographical, and engineering testimony submitted at the hearing was in decided conflict, and that there existed a wide divergence of opinion among the expert witnesses. But the court expressed the conviction that there was no convincing evidence that there was an oil producing structure beneath plaintiffs' land, or that such land ever had been underlaid by recoverable oil in commercial quantities. And the court concluded that plaintiffs' theory of the case was purely conjectural and speculative to the highest degree and did not justify the hazard incident to the making of the survey. Accordingly the court declined to order the making of the survey, 14 F.R.D. 58.
Several months after entry of the order refusing the application for the making of the survey, the case came on for trial on its merits. A jury was impaneled but there was no formal trial. By agreement of the parties, a transcript of the proceedings had on the hearing upon the application for the order for the making of the survey was introduced in evidence, and a token of additional evidence was introduced. The court directed a verdict for the defendant; judgment was entered accordingly; and plaintiffs appealed. After the appeal was perfected, plaintiff Paul S. Williams died and Cordelia Pearl Williams, successor in interest of the decedent, was substituted as party appellant. For convenience, continued reference will be made to the parties as plaintiffs and defendant, respectively.
It is not inappropriate to observe that the question whether a court of equity has the power to order the making of a deviational and directional survey in a case of this kind, as well as the question whether such a survey should be ordered in the varying circumstances presented, is not new. The power of the court to order the making of a survey of the kind sought here has been enunciated and the correctness of such an order has been upheld in certain cases in state courts. Union Oil Company of California v. Reconstruction Oil Co., 4 Cal.2d 541, 51 P.2d 81; Gliptis v. Fifteen Oil Co., 204 La. 896, 16 So.2d 471; Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389; Texas Co. v. Hollingsworth, 304 Ill.App. 607, 27 N.E.2d 67, reversed for absence of necessary parties, 375 Ill. 536, 31 N.E.2d 944. These cases are not controlling, but they do articulate with some persuasion the general direction to which the appropriate exertion of the court's discretion points.
Rule of Civil Procedure 34 provides in presently material part that upon the motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may order any party to permit entry upon designated land or other property in his possession for the purpose of surveying the property or any designated object or operation thereon within the scope of the examination permitted by Rule 26(b); and that the order may prescribe such terms and conditions as are just. In a case of this kind which necessarily turns upon the location of the bottom of an oil and gas well, the court has power under the rule to order the making of a deviational and directional survey. Humble Oil & Refining Co. v. Sun Oil Co., 5 Cir., 175 F.2d 670. But the moving party is not entitled as a matter of right to an order for the making of such a survey. Under the rule, it is incumbent upon the party applying for the order to make a showing of good cause. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Martin v. Capital Transit Co., 83 U.S.App.D.C. 239, 170 F.2d 811; Safeway Stores v. Reynolds, 85 U.S.App.D.C. 194, 176 F.2d 476; Alltmont v. United States, 3 Cir., 177 F. 2d 971, certiorari denied, 339 U.S. 967, 70 S.Ct. 999, 94 L.Ed. 1375.
No abstract rule of thumb has been devised for ready use in determining in every case whether good cause has been shown. In each case the question is whether special circumstances...
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