*1 CORPORATION, OIL GULF Error, Plaintiff Hughes, Jacqueline
A. L. HUGHES in Error. Defendants
No. 39388.
Supreme of Oklahoma. Court
Feb. 1962. May
Rehearing 2, 1962. Denied
82 land project caused their
to “permanently oc- damaged which subsequent curred sometime to October 1957.”
Defendant filed an in which answer it de- generally nied allegations plaintiffs’ of petition amended and pleaded that alleged cause of action was barred lim- by itations. Hurst, Diggs, B. Edwin S. Comet James j.ury The tried, to whom the case was Johns, plaintiff in City, C. Oklahoma for plaintiffs found for and fixed the amount of error. recovery $6,000.00. their at From order of Allen, Loeffler Sapulpa, & for defend- trial court denying defendant’s motion for ants in error. trial, new which judgment was directed to jury’s on the verdict, perfected defendant BERRY, Justice. appeal. below, petition filed the defend- In their reversal, For defendant contends that error, ants in hereafter referred to “Liability for underground pollution of a they im- owned an “plaintiffs”, alleged that water well from gas oil and must proved lying acres of in tract land be based on negligence or nuisance and the County, Oklahoma; during Creek submission of the case to the error, plaintiff Year 1956 in hereafter theory of liability absolute error,” and “defendant”, “commenced cer- ferred to as that “The on the measure of adjacent tain oil on to land damages were erroneous.” commonly (theirs), known as waterflood The contentions by made project; part project, defendant are that as a of said said such that we deem it unnecessary to great quantities sum- defendant caused of salt marize the evidence and will pumped only to be a well an refer into known as to evidence that is thought to inject pressure; directly bear well under that as á result on defendant’s contentions. through por- thereof water was forced more points ous rock and earth formations into the out that the case was plaintiffs streams of water on the land of tried and submitted to the jury on the the- by ory recovery and had been plaintiffs’ part which were used on them for was not upon pur- contingent some time for domestic and livestock on the defend- ; poses” prior part plaintiffs ant’s and commencement of could recover project plaintiffs “the wells from which if it were shown that water-flooding ob- project tained their proximate domestic and were the direct livestock and cause produced alleged water of quality excellent of their This is not dis- potability”; puted by plaintiffs and that the water thereafter who assert in substance unpalatable highly became and the evidence showed that project undesirable washing purposes; for or other domestic carried on in such a manner as to plaintiffs nuisance, and private will be compelled create a for and said rea- purchase transport water and it to son on their their is not contin- residence; pollution that as a result of gent of negligence on de- supply, part. of water the source the value of fendant’s $18,950.00 land was reduced from their by plain- first consider cases cited We will $9,000.00. prayed Plaintiffs which and other cases bear directly tiffs $9,950.00. the amount contention. Bolinger, Plaintiffs filed an petition amended In Fairfax Oil Co. v. 574, Bolinger sought reiterated the P.2d allegations recover original petition pleaded their to his property allegedly further emanating accidens substantially if that use were occasioned vibrations dam- ages for oil a test from defendant’s well another. Such is Bolinger’s gas property adjacent purpose effect of section *3 upon 2, property. predicated article ag- The action was of the An Constitution. operations grieved owner proposition drilling may the the not a legal- abate private a ized use property. were as to create of another’s so conducted But it does not necessarily nuisance the case was submitted follow that the for- mer theory. compen- is not on said entitled to recover any sation for may which he that the Fairfax Co. contended Oil able to establish resulting from that business drilling of a test well is a lawful Dupont Dodson, use. I.E. etc. Co. v. per se. not constitute nuisance does a supra.” as cor accepted contention was While the rect, it was held that nevertheless It was contended in British-Ameri contingent part Bolinger of McClain, can Producing Oil Co. v. 191 Okl. company upon negli showing his that the 40, 530, 126 P.2d that where the drilling operations gently on its carried of a manner, well was carried on in lawful a the In the first which caused liability for damages resulting from the syllabus, said: paragraph of the this was operation only could result if were rejected. the facts show that lawful shown. This “Where contention was ( j being paragraph syllabus is conducted such The second business of the private constitute a nui- that case is para manner as identical with the to first causing injury graph syllabus to of the sance substantial to Fairfax Oil Co. v. party may Bolinger, supra. property, aggrieved opin In the of the body pointed compensation ion it for the sus- out that injury cover “In a case of this character the use need tained.” not be of a care negligent nature, less or or unreasonable body this in the of the injured par or unwarrantable to entitle the said: recover”; ty 2, to that Art. Sec. 23 of the many “In this and other states the private Okla.Const. to effect that property law rule does not obtain. Con common damaged shall not be taken or private intervened provisions have stitutional compensation, use without modify served to protect property against owner to quoted the common law. 'We there with of real losses in the nature and substan approval appearing the matter in Fairfax property, resulting injury to his tial Bolinger quoted Co. supra. Oil v. adjacent nearby or from the use E. Du The landowner in property its owner. See I. Garland Coal & Min- Dodson, supra (10th et v. Few pont ing v. Okl. Co. al. Cir.) etc. Co. 267 F.2d [49 785, 58, Kenyon 1085]; property v. Edmund asserted his 150 P. was damaged 3, son, Adm’r, strip coal-mining P. 739. as the result of 80 Okl. 193 property that were legal, use be conducted on Though adjoining property. substantially damaged alleged among He things as a other op- another thereof, may latter erations resulted in diverting recover result surface water in fact. which caused a nuisance St. Louis- his land. as for The case Matthews, Oklahoma, R. Co. v. which arose wholly was sub- F[rancisco] S[an] 167, mitted theory 49 P.2d While a to 174 Okl. 752. that re- may covery part use not be a nuisance particular landowner’s was not con- grow per tingent into a per se it nuisance of negligence on accidens, operators; of the McPherson First Pres private that a etc., 40, person nuisance results when a byterian Church so used his 1215; legalized property A.L.R. and a as to cause P. a substantial injury property per another; becomes a use of nuisance that if such well, shown, provisions of Art. Sec. and in their remedy
were situation, applicable landown- supra, large quantities and the of water upper proved damages. er recover water strata should went into the well and This, down into bearing the oil sand”. ac operator’s contention rejecting the In cording plaintiff, “drowned well”. their submitting erred in so that the trial court sought Plaintiffs theory recover on the case last cited case, the court in the negligently defendant conducted the cited the cases heretofore cites and reviews operations by which it sought remedy Court to decisions and other well; “trouble” with its general same effect. damages resulted from defendant’s trespass *4 Oil Co. cites Cities Service and II, violated rights under Art. 677; Pine Merritt, Okl., 332 et P.2d al. v. 23, supra. Sec. Judgment for defendant 35, ux., P.2d Rizzo et 186 Okl. et al. v. was affirmed because negligence no was Company 17; Bridge, v. Harper-Turner Oil shown. Okl., 947, Trust Larkins-Warr 311 P.2d and If Watchorn Petroleum Co.’s normal busi- al., et Petroleum Co. et v. Watchorn al. ness brought had about the con- point of being in P.2d as dition which Larkins-Warr Trust et al. as- contention. We sustaining and as its fact serted damages caused well, to their the agree. unable are above cited case could be considered (332 it 677), first cited case P.2d In the analogous, but such is not the case. The for liability that “The basis was stated damage directly was attributable to “trou- damages property by pollution injury or (an ble” accident) the and action that was waters, oil, gas, from salt of subterraneous promptly taken to remedy or abate the trou- like in oil wells must water or substances ble. negligence or nuisance.” Recov- be either theory on the that there sustained ery was In the case, instant the court in showed a nuisance. British- the facts structed the in as follows: McClain, Producing Co. v. American Oil “ * * * you if should find that quoted ap- is cited and from with supra, Corporation the Gulf Oil conducted wa- proval. flooding operations ter recovery for the (96 17), cited case P.2d the In the second vicinity of oil in the of the land of Mr. plain- judgment was reversed because “The Hughes, Mrs. you and if should any competent did not offer evidence tiffs further find that such flooding the acts of establish operations caused supply the water petition charged any had in their nor Hughes’ the to become unfit for drink- reasonably from which it could evidence ing uses, or other household and that plain- that the detriment which be inferred such water were the by had sustained had been caused tiffs direct, proximate natural and cause of operation of the oil well.” For injury to the water point. reasons the case is in obvious not supply Hughes, you then are in- Hughes structed that the should recovery in recov- (311 the third While P.2d er Corpora- from the Gulf Oil case 947) theory cited was sustained on the ** tion, *.” pollution to landowner’s water well Harper-Turner Compa- resulted from Oil We are of the the instruc- negligence, it was not ny’s there held that fairly applicable tion stated law to the wholly dependent in such case is facts. See cases first herein cited. We note pollution upon evidence British-American Oil Producing Co. negligence. sulted McClain, supra, an instruction of the fourth In the and last cited general purport case (174 given same P. and that 589), developed “Trouble 2d giving approved of same was appeal. defendants’ quantities. the testi- remaining While fact that defendant’s consider We next mony probabilities not was based trial court to the effect contention inadmissible, said have served it to render giving erred in go of the evidence weight fact does measure of jury was and the matter of whether ef given instruction was An bound same. that the dam if the found fect that plaintiffs’ “measure age permanent, It common knowl is a matter of fair the difference between the edge that fact water sand is that a as com land before market value of the point produces found at a given pared fair after market value satisfactory supply potable water does destroyed supply at a prove be found not that the sand will done”; use, such was domestic given point if found away some distance or you dam “In the event determine satisfactory produce it will supply pollu age resulting from the water potable Valley R. water. In Midland permanent then in that event tion al., Lowery Co. v. 248 P.2d et 207 Okl. *5 he the cost the measure of would paragraph this was said in the second a new sand drilling a well such syllabus: of the consumption which fit for domestic water con- “The their own follow jury found, a sand.” could be if there such victions, experience, own based on their that competent There evidence knowledge, was observations and common plaintiffs’ well had water to which opin- sand contrary expert although damaged and was permanently been drilled ions in cases.” civil plaintiffs’ damages that exceeded Refining Company v. Peppers We said in Defendant asserts amount of the verdict. 228, 231, Spivey, Okl., that “The 28S P.2d did to show in substance that this not serve testimony weigh was entitled to plaintiffs sustained expert and accord defendant’s witnesses permanent. They point that was the fact testimony weight such potable testified that water was geologist a entitled.” deemed this evidence a produced being from well drilled to case, chose dis- In instant adjoining on land different sand testimony geologist. of the Un- regard that his plaintiffs’ land. He testified case, this such was their the facts of der probably sand “would be found privilege. ” depth Hughes’ feet of the below the Affirmed. well; were he drilled to that a well land, probably plaintiffs’ it said sand on BLACKBIRD, WILLIAMS, J., V. C. produce un- satisfactory would DAVISON, WELCH, J.,C. JOHN- water; polluted cost IRWIN, JJ., SON, con- JACKSON proposed equipping well would not cur. not exceed $600.00. argues testimony HALLEY, J., dissents. tes- geologist not refuted and that his timony plaintiffs’ HALLEY, (dissenting). therefore shows dam- Justice permanent. age was not I think there dissent because do I
The in this case to show geologist’s testimony based sufficient evidence wholly upon proposition those un- water wells and since polluted being produced in the future would forever be drilled could opera- given the defendant’s underlying adjoining sand land be contaminated plaintiffs, being so think the trial court’s I probably sand would tions. This on the measure of probably found under land and potable produce incorrect. satisfactory would water in