CHANCE ET AL., APPELLANTS, v. BP CHEMICALS, INC., APPELLEE, ET AL.
No. 95-970
Supreme Court of Ohio
October 30, 1996
77 Ohio St.3d 17 | 1996-Ohio-352
Submitted May 8, 1996. APPEAL from the Court of Appeals of Cuyahoga County, Nos. 66622 and 66645.
{¶ 1} This litigation commenced on July 17, 1991, when the named plaintiffs-appellants, Rose M. Chance, Eliza Avery, and Bessie Shadwick, filed a complaint in the Court of Common Pleas for Cuyahoga County on behalf of those whose interests in real property had allegedly been injured by the described operation of a chemical refining plant operated by defendant-appellee BP Chemicals, Inc. in Lima, Ohio. Appellants’ claims focused on appellee‘s practice of disposing of hazardous waste byproducts from the manufacture of industrial chemicals through the use of “deepwell” injection technology. Appellants in essence claimed that the “injectate” placed under the surface of appellee‘s property by appellee had laterally migrated to be below the surface of appellants’ properties and that the migration violated their rights as property owners.
{¶ 2} Appellants sought recovery for trespass, nuisance, negligence, strict liability, and fraudulent concealment. The complaint prayed for one billion dollars in general and punitive damages and included a request for injunctive relief. Appellee answered the complaint on October 24, 1991, and denied that appellants were entitled to recovery.
{¶ 4} On July 31, 1992, appellee filed a motion for summary judgment with a supporting brief. Appellee stated in the brief that deepwell injection is used by companies and governmental entities throughout the country and the world to place waste liquids thousands of feet deep into the earth, under thick layers of nonporous rock. Appellee claimed that the injectate at the Lima location is ninety-five percent water, approximately four percent dissolved salt and approximately one percent organics, and that the injectate disperses into the native fluid (connate brine) that naturally exists in the geologic rock formations where the injecting is done.
{¶ 5} Appellee stated that it had three active deepwells at its Lima site, with the oldest well having been used continuously since 1968. Appellee stated that it operated the three injection wells pursuant to permits and regulatory practices of both the Ohio and United States Environmental Protection Agencies and argued that the wells were safe and the technology behind them effective. Among the reasons listed by appellee for its position that summary judgment was appropriate were that appellee had not violated a duty owed to appellants, that no injectate had migrated under appellants’ properties, that appellants had no damages, and that some of the claims advanced by appellants were unavailable as a matter of law.
{¶ 6} Appellants’ response to the summary judgment motion, filed on September 30, 1992, stated their positions that what appellee was injecting was actually dangerous toxic waste and that the waste had migrated away from the
{¶ 7} On December 2, 1992, after the trial court had heard oral arguments on the summary judgment motion, the court ruled in favor of appellee on appellants’ claim for punitive damages and on appellants’ claim for intentional or negligent infliction of emotional distress. The court denied summary judgment to appellee on appellants’ other claims.
{¶ 8} The trial court held a pretrial conference on March 23, 1993 and set the trial date for November 3, 1993. The trial court set due dates for the parties to file briefs on issues relating to certification of the class. In a series of filings by each side, the parties made arguments to the trial court concerning how the class action was to be conducted. Many of these arguments concerned the possibility of bifurcating the action, so that whether appellee was liable would be determined first, and if liability was found, then damages would be quantified at a later time. Appellants generally opposed bifurcating the action in this way, although they did indicate at one point their amenability to a form of bifurcation that would include delaying determination of damages until after the extent of migration had been resolved. Appellee argued in favor of bifurcation of liability and damages.
{¶ 9} The issue of the extent of the lateral migration of the injectate was vigorously contested by the parties at all stages throughout the litigation, and both
{¶ 10} Appellants, on May 27, 1993, moved to amend their complaint to add a request for a judgment declaring that appellants owned everything below the surface of their properties, including the geologic formations into which the injectate was allegedly going, and further declaring that they had the right to exclude appellee from using their properties. The motion to amend was denied by the trial court.
{¶ 11} On August 9, 1993, the trial court issued its class certification order. The court certified a class “for purposes of a trial on the issues of where the injectate is located and whether there is liability to any member of the class.” The certification order made no mention of how or when the amount and distribution of damages would be determined if liability were found.
{¶ 12} In addition to setting forth the issues for trial, the trial court‘s certification order also defined the class: “The class consists of persons owning real property, as of the date the complaint was filed, within the following limits around the three deepwells at BP Chemicals’ facility in Lima Ohio: 4.88 miles west of well 2; 4.58 miles north of well 3; 3.25 miles east of well 1; and 3.05 miles south of wells 2 and 1.” The trial court adopted this class definition from an opinion of one of appellants’ experts regarding his conclusions on the distances the injectate had migrated.
{¶ 14} The parties disagree over whether appellants had requested that their expert‘s opinion of the extent of the migration be used to define the class. In any event, appellants’ attorneys did not initially object to the class definition, but later encountered problems when they prepared to send notices to members of the class using this class definition. Because the defined area did not directly correspond to any mailing list that could be practically compiled, appellants came to realize that some people would surely receive notices who should not. Also, because no map was included as part of the class description, there would be confusion about who was in the allegedly affected area.
{¶ 15} The trial court journalized an entry on October 5, 1993, which approved the parties’ agreement that the mailing date of the class notice would be extended to October 8, 1993, and the appellants’ counsel published the notice and accomplished the mailing before that date, with notices apparently sent to in excess of 20,000 people on October 7, 1993. Those property owners not wishing to be involved sent in requests to opt out of the class, which were filed with the court.
{¶ 16} Plaintiff-appellant Mary Virginia Rauch, a member of the described class, received a class notice. Appellant Rauch did not return an exclusion request, but instead filed a document denominated a “motion to intervene” with the trial court. In this document, appellant Rauch claimed that she needed additional time to decide whether to intervene, opt out, or remain as a passive class member, arguing that the time period set by the trial court for sending in exclusion requests was too short. The trial court denied appellant Rauch‘s motion in an entry journalized on November 4, 1993.
{¶ 18} Trial commenced on November 3, 1993, and a jury was seated. Testifying for appellants were property owners who were concerned about the possible presence of the injectate under their properties. Appellants’ key expert was a hydrogeologist who had developed a model to determine the extent the injectate had laterally migrated away from appellee‘s property. On cross-examination, appellee‘s attorney challenged the expert‘s model as inaccurate. The witness in turn explained the reasoning behind decisions he had made in setting up his model, and also criticized the model on extent of migration developed by appellee‘s expert. In particular, appellants’ witness did not accept the accuracy of data obtained by appellee through its use of a test well to monitor the site, and so did not incorporate that site-specific data into his model.
{¶ 19} At the close of appellants’ case in chief, the trial court granted appellee‘s motion for directed verdicts as to appellants’ claims of ultrahazardous
{¶ 20} Appellee‘s presentation of its case included testimony of a geological engineer on the permeability and porosity of the substrata into which the injecting was done. This geological engineer‘s testimony explained why, in his opinion, appellee‘s site in Lima was suited to deepwell injection. Several impermeable (or barely permeable) layers of rock contained the injectate in the relatively permeable and porous, mostly sandstone injection zone in the Eau Claire geologic formation (beginning at a depth of approximately 2,430 feet) and the Mt. Simon formation (beginning at a depth of approximately 2,813 feet). The geological engineer testified that in his opinion the injectate was safely contained in the injection zone. On cross-examination, appellants’ attorney observed that the real issue was the extent of lateral migration of the injectate, so that the witness‘s testimony that the injectate had not migrated upward was irrelevant to appellants’ trespass claim.
{¶ 21} Another of appellee‘s expert witnesses was a hydrogeologist who had developed his own model of the extent of lateral migration. This witness was critical of the model developed by appellants’ expert and of appellants’ expert‘s view of the extent of lateral migration, opining that appellants’ expert had erred by failing to take into account available site-specific data in developing his model.
{¶ 22} Prior to the final arguments, appellants moved for a directed verdict, arguing that appellee had admitted through at least one of its witnesses that the injectate had migrated below the surface of the properties of at least some members of the class. Appellants sought a ruling that a trespass had therefore occurred and that damages could be presumed from the act of trespassing. The trial court orally denied the motion.
{¶ 23} On November 18, 1993, the jury returned a general verdict in favor of appellee on the trespass claim and answered ten interrogatories. The jury found
{¶ 24} Appellants appealed to the Court of Appeals for Cuyahoga County, and appellee cross-appealed. In addition, appellant Rauch appealed concerning the trial court‘s denial of her motion to intervene. The court of appeals consolidated the various appeals, and addressed them all in a single opinion.
{¶ 26} The cause is now before this court upon the allowance of discretionary appeals—the appeal of the class appellants and also the appeal of appellant Rauch.
Murray & Murray Co., L.P.A., James T. Murray and Joseph A. Zannieri, for appellants.
Katherine Walsh, Williams & Williams Co., L.P.A., and Mark R. Williams; and Thomas G. Rauch, for appellant Rauch.
Squire, Sanders & Dempsey, Frederick R. Nance, Damond R. Mace and Steven A. Friedman; and David L. Bell, for appellee.
ALICE ROBIE RESNICK, J.
{¶ 27} This case presents unique questions surrounding the process of deepwell disposal of wastes. We stress at the outset that, because appellee‘s operation of the wells is authorized by the relevant regulating bodies, this case does not involve the general propriety of deepwell waste injection. This case also does not involve the specific question whether appellee should be using deepwell technology at its Lima facility.
{¶ 28} The Ohio General Assembly has set up a scheme for the granting of permits for and the supervision of injection wells by state agencies. See
{¶ 29} However, even though appellee operates the wells pursuant to the permits, that fact in and of itself does not insulate appellee from liability.
{¶ 30} As a preliminary matter, we affirm the portions of the judgment of the court of appeals holding that the trial court correctly granted summary judgment to appellee on claims for emotional distress and for punitive damages.
{¶ 31} We also affirm the court of appeals’ holding that the trial court properly directed a verdict in favor of appellee on the issues of nuisance, fraud, and ultrahazardous activity. Appellants desired to introduce evidence of problems, such as earthquakes and contamination of drinking water, at other deepwell sites, but were prevented from doing so by rulings of the trial court. Appellants had no evidence of specific problems at appellee‘s site, other than speculative opinion testimony that problems may arise in the future. As mentioned above, appellee‘s operation of the wells is fully authorized by the regulating bodies, and in the absence of evidence that appellee‘s wells were a nuisance or that appellee was negligent in some way, appellants could not recover on their nuisance claim.
{¶ 32} Moreover, we affirm the holding of the court of appeals regarding appellants’ argument that appellee should have borne the burden of proving that no trespass occurred. Appellants base their argument on this issue on appellee‘s reliance throughout the litigation on voluminous data obtained from a “stratigraphic test well” drilled to monitor the three injection wells. Appellants argue that appellee‘s “unique access” to this data justified placing the burden of proof on
{¶ 33} Our agreement with the conclusions reached by the court of appeals on the foregoing issues leaves appellants’ trespass claim as the principal issue to be resolved. Trespass is an unlawful entry upon the property of another. See Keesecker v. G.M. McKelvey Co. (1943), 141 Ohio St. 162, 166, 25 O.O. 266, 268, 47 N.E.2d 211, 214. In order to address the trespass issue, we first must examine the extent of the property interest owned by appellants involved here.
{¶ 34} Both parties have cited cases on oil and gas law, and ask this court to draw analogies between this case and oil and gas cases. Appellee in particular cites cases on the “negative rule of capture” and asks us to apply that rule. In RR. Comm. of Texas v. Manziel (Tex.1962), 361 S.W.2d 560, 568, the Supreme Court of Texas explained the negative rule of capture by quoting Williams & Meyers, Oil and Gas Law (1959), Section 204.5, at 60.2: “Just as under the rule of capture a land owner may capture such oil or gas as will migrate from adjoining premises to a well bottomed on his land, so also may he inject into a formation substances which may migrate through the structure to the land of others, even if it thus results in the displacement under such land of more valuable with less valuable substances.”
{¶ 35} We find that the situation before us is not analogous to those present in the oil and gas cases, around which a special body of law has arisen based on special circumstances not present here. Although the above quotation from Manziel does contain the word “inject,” the injection in that case was directly related to oil and gas extraction, and was fundamentally dissimilar to the unique situation before us, which involves the injection of waste byproducts from the production of industrial chemicals. Since appellee‘s injection well operation has nothing to do with the extraction or storage of oil or gas, we find the negative rule of capture inapplicable to our consideration of this case. For the same reason, we also reject appellants’ argument that this court‘s opinion in Columbia Gas Transm. Corp. v. Exclusive Natural Gas Storage Easement (1993), 67 Ohio St.3d 463, 620 N.E.2d 48, which involved the determination of compensation due for the appropriation of an underground gas storage easement, is relevant to the resolution of this case.
{¶ 36} Appellants argue in their Proposition of Law No. I that “[t]he owner of land has absolute ownership of all the subsurface property.” If this proposition is correct, then as one of the incidents of absolute ownership, appellants have the right to exclude others. See Bank of Toledo v. Toledo (1853), 1 Ohio St. 622, 662. Appellants claim that while this court has recognized some limitations on absolute ownership of air rights by surface property owners, no such limitation exists on ownership of subsurface property rights by surface owners.
{¶ 37} Appellants’ argument implicates the ancient Latin maxim cujus est solum, ejus est usque ad coelum et ad inferos, defined in Black‘s Law Dictionary (6 Ed.1990) 378 as “[t]o whomsoever the soil belongs, he owns also to the sky and to the depths. The owner of a piece of land owns everything above and below it to an indefinite extent.” In Winton v. Cornish (1832), 5 Ohio 477, 478, this court appeared to adopt the position illustrated by that maxim, stating, “The word land includes not only the face of the earth, but everything under it or over it. He who owns a piece of land, therefore, is the owner of everything underneath in a direct line to the center of the earth and everything above to the heavens.”
{¶ 38} In Willoughby Hills v. Corrigan (1972), 29 Ohio St.2d 39, 49, 58 O.O.2d 100, 105, 278 N.E.2d 658, 664, this court, citing the United States Supreme Court in United States v. Causby (1946), 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, stated that “the doctrine of the common law, that the ownership of land extends to the periphery of the universe, has no place in the modern world.” The court in Willoughby Hills, 29 Ohio St.2d at 50, 58 O.O.2d at 106, 278 N.E.2d at 665, quoted from Hinman v. Pacific Air Transp. (C.A.9, 1936), 84 F.2d 755, 758: “‘We own so much of the space above the ground as we can occupy or make use of, in connection with the enjoyment of our land. This right is not fixed. It varies
{¶ 39} Appellee claims that injectate is placed into the native brine in the Mt. Simon and Eau Claire formations, and that the native brine waters are “waters of the state” under
{¶ 40} Our analysis above concerning the native brine illustrates that appellants do not enjoy absolute ownership of waters of the state below their properties, and therefore underscores that their subsurface ownership rights are limited. As the discussion in Willoughby Hills makes evident, ownership rights in today‘s world are not so clear-cut as they were before the advent of airplanes and injection wells.
{¶ 41} Consequently, we do not accept appellants’ assertion of absolute ownership of everything below the surface of their properties. Just as a property owner must accept some limitations on the ownership rights extending above the surface of the property, we find that there are also limitations on property owners’
{¶ 42} Having determined that appellants’ subsurface rights are not absolute, we must determine whether appellants proved an actionable trespass given the facts of this case. The trespass appellants attempted to establish was an “indirect” one, and was complicated by the nature of the invasion of property that appellants were attempting to prove. The alleged invasion of property was dependent on appellants’ explanation of the extent of the lateral migration of the injectate and of how the injectate came to be under their properties.
{¶ 43} As discussed previously, the actual location of the injectate was vigorously contested by the parties throughout the litigation, with each side‘s experts testifying as to the models developed to illustrate the extent of the migration. The parties’ experts disagreed as to the permeability and porosity of the rocks into which the injecting is done. Permeability and porosity are two factors upon which the models were based that would affect the extent of the lateral migration of the injectate. The experts also disagreed over the thickness of the “injection interval” into which the injectate is placed. If the injectate were placed into a relatively thin layer, as appellants’ expert placed it in his model, the injectate would laterally migrate farther than if it were placed in a thicker layer, as appellee‘s expert placed it in his model.
{¶ 44} Another variable that figures in the equation involving lateral migration and the location of the injectate is the concentration of the injectate at any given point in the substrata as it intermixes with the native brine. As the
{¶ 45} All of these and more disputed variables went into the construction of the hypothetical models that attempted to illustrate the lateral extent of the migration. Given all these variables, there were great difficulties in appellants’ establishing, as a factual matter, that a property invasion had occurred, so that appellants’ claim must be regarded as somewhat speculative.
{¶ 46} Appellants in essence argue that through its rulings, the trial court mistakenly imposed a requirement that they prove “actual” damages as an element of their trespass claim. Appellants argue that damages can be presumed in every case of trespass, and given that the bifurcation order left damages to be quantified at a future time, the trial court erred in requiring proof of any damages at all, much less of “actual” ones. We do not accept appellants’ argument in this regard in the specific circumstances of this case, but find that some type of physical damages or interference with use must be shown in an indirect invasion situation such as this. Even assuming that the injectate had laterally migrated to be in an offending concentration under some of the appellants’ properties, we find that some type of physical damages or interference with use must have been demonstrated for appellants to recover for a trespass.
{¶ 47} Additionally, appellants in essence argue that even if the trial court was correct in requiring them to prove “actual” damages as an element of their trespass claim, the trial court erred by unduly restricting what type of damages they were required to demonstrate. For example, appellants argue that the trial court should have allowed appellants to present evidence that environmental stigma
{¶ 48} Appellants have cited no cases in which the non-negligent operation of a deepwell has resulted in liability. The court of appeals remarked in a footnote to its opinion that after extensive research of other jurisdictions, it was unable to find “a single cause of action based upon conceptual as opposed to actual and substantial damage associated with permitted, non-negligent deepwell disposal.” Our research also has produced no such precedent.
{¶ 49} We find that appellants, given all the factors present in this case, did not, as a matter of law, establish an unlawful entry on their properties by appellee. Our ultimate conclusion that appellants did not prove an actionable trespass is dictated by considering the sum total of the circumstances of this case, as we have done in our foregoing discussion. Appellee operates the wells pursuant to required permits; appellants’ subsurface property rights are not absolute and in these circumstances are contingent upon interference with the reasonable and foreseeable use of the properties; the trespass alleged is an indirect one and, due to the type of invasion alleged, physical damage or actual interference with the reasonable and foreseeable use of the properties must be demonstrated; appellant‘s trespass claim is a novel one, of a type previously unrecognized by any court. When all of the circumstances of this case are considered, appellants’ evidence of trespass was
{¶ 50} Appellants make several arguments concerning procedural and substantive rulings made by the trial court that allegedly prejudiced their right to a fair trial. In particular, appellants take issue with the failure of the trial court to make the class action findings required by Civ.R. 23, as discussed by this court in Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 521 N.E.2d 1091. Warner stands for the proposition that specific findings should be made in virtually every class action. The error, if any, is now moot. As to the trial court‘s refusal to grant a continuance, we find no abuse of discretion under the specific facts of this case. Furthermore, we believe that many of the rulings of the trial court that appellants object to were made as they were due to the speculative nature and novelty of appellants’ claims. The procedural progress of this case was tied to the uncertainty of the substantive claims being made, and the procedural and substantive difficulties magnified each other, and caused many of the proceedings in this case to lack focus. For example, the dispute over the location of the injectate had a direct
{¶ 51} We are convinced that, at bottom, the question of the actual location of the injectate, at best a complicated inquiry not easily susceptible of a definitive answer, was further complicated by the fact that the parties were attempting to illustrate the extent of lateral migration based primarily on experts’ hypothetical models that were each attacked in minute detail as flawed by the other side. When the nature of the alleged property invasion is considered in light of appellants’ apparent lack of specific and readily demonstrable concrete damage, this was a highly unusual case. The parties in this litigation disagreed on virtually every facet of this case, both factually and legally, from the outset, which further complicated the role of the several judges who presided over the action and of the jury.
{¶ 52} We will not individually address all of the issues posed by appellants’ remaining propositions of law. Rather, we simply state that we find no abuse of discretion in the rulings of the trial court on these issues.
{¶ 53} In addition, we agree with the holding of the court of appeals as to appellant Rauch‘s appeal and affirm it.
{¶ 54} For all the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
DOUGLAS, F.E. SWEENEY, COOK and STRATTON, JJ., concur.
MOYER, C.J., concurs in judgment only.
PFEIFER, J., concurs in part and dissents in part.
PFEIFER, J., concurring in part and dissenting in part.
{¶ 55} I dissent from the majority‘s holding that the measure of compensation enunciated by this court in Columbia Gas Transm. Corp. v. Exclusive Natural Gas Storage Easement (1993), 67 Ohio St.3d 463, 620 N.E.2d 48, is