188 Ind. 400 | Ind. | 1919
— This was an action to recover damages • for the loss of cattle and the permanent injury to the 700-acre farm of appellee, Christian Christensen, occasioned by the escape of oil from the pipe line of appellant, Indiana Pipe Line Company. Appellee’s complaint alleges among other things that he is the owner of 700 acres of land .in Stark county, Indiana, which he has used for the past twenty years for the combined purposes of general farming and stock raising, and which is located on both sides of Pine Creek below the point where Pine Creek is crossed by appellant’s pipe lines, which are used for the purpose of transporting-crude petroleum oil across the State of Indiana. It is alleged that appellant negligently, carelessly and knowingly failed to make any proper inspection of its pipe
” In the case at bar the court adopted the measure of damages applicáble to the assessment of damages for lands appropriated. Evidence was admitted as to the market value of the entire 700-acre tract' of land immediately before it was overflowed by the oil- which escaped from defendant’s pipe lines and the value of the same land after such overflow; and, under the instructions, the jury was permitted to base its award of damages on evidence of this character. Appellant asserts that the trial court erred in applying this rule for the assessment- of damages to the facts as disclosed by the evidence in this case.
There is evidence to show that in the years 1914, 1915 and 1916 quantities of oil escaped from the pipe lines owned and operated by appellant company and was carried on the surface of the water down the ditches • constructed through lands owned by appellee; and that, by reason of the water overflowing the lands of appellee, the oil was carried on and over parts of said land, where it remained on the grass and vegetation aiid in the soil after the water receded or evaporated. A part of the land having an area of about / 500 acres was prairie land, and the remainder consisted of higher land on which the buildings were situated. There is no evidence that the high land was affected by the oil, but There is evidence to show that oil was found in considerable quantities on portions of the low land, and that it permeated the soil and was found on the grass and vegetation growing thereon. The evidence shows that the low land prior to the overflow produced native perennial grasses which were valuable for pasturage and
There can be no doubt that it was the theory of the plaintiff below that the injury to the real estate was of á permanent character, affecting the value of the farm as a whole, and that the trial court adopted that theory on the trial.
Appellant takes the position that, under the law and the evidence, appellee was not entitled to recover permanent damages to the farm as a whole, measured by the diminution in the market value of the fee-simple interest therein, for the reason that the evidence fails to show any title in appellee as to that portion of the farm lying north of the meander line established by the government survey and containing about 192 acres. It is asserted that appellee was required under the law to prove title to the land affected, and that the evidence shows that the title to the part of the farm on which the buildings are located north of the meander line in section 36 rests in the State of Indiana or in the government of the United States. This position of appellant is met by appellee with the proposition that a person who is in possession of land claiming to be the owner may maintain an action against a wrongdoer for permanent injury to the land without disclosing anything further than his possession and claim of ownership; and that such wrongdoer cannot set up an outstanding title in a third party for the purpose of defeating a recovery.
Appellant cites a number of cases to sustain the proposition that it is necessary for the plaintiff to prove title to the land in cases where he seeks to recover damages for permanent injury to the freehold. Thompson v. Norton (1860), 14 Ind. 187; Broker v. Scobey (1877), 56 Ind. 588; Start v. Clegg (1882), 83 Ind. 78; City of Lafayette v. Wortman (1886), 107 Ind. 404, 8 N. E. 277; Burrow v. Terre Haute, etc., R. Co. (1886), 107 Ind. 432, 8 N. E. 167; Porter v. Midland R. Co., supra.
The cases cited by appellant do not sustain the position to which they are directed. They do not hold that it is necessary for plaintiff, in an action quare clausum, to prove a fee-simple title to the land." They hold that it is only necessary to prove possession either actual or constructive. If actual possession cannot be shown, constructive possession must be' proved. In these cases actual possession was not shown and proof of constructive possession follows the title. It was held to be necessary to show a chain of transfers extending back to the government or to a person in possession at the time of his transfer, not for the purpose of proving title, but for the purpose of proving possession.
Appellant in this case proceeds on the theory that he is the owner in possession of the 700 acres of land described in his complaint, and he seeks to recover dam
The court has reached the conclusion that, in cases where a plaintiff seeks to recover damages for an injury which permanently affects the land by reducing its market value, it is incumbent on him to prove such an interest in the land as entitles him to receive damages of that nature. It was therefore incumbent on appellee to prove title to the entire farm.
Appellant asserts that there is no evidence to show any permanent injury to the land, and that a verdict based on such theory is not sustained by the evidence.
Appellee testified that he plowed up a part of one forty-acre tract that had been overflowed by oil, and that, in 1916, he sowed a part in oats, a part in millet, a part he planted in com. He testified that he got one wagon load of bundles of oats out of a field of twenty
As heretofore stated there is evidence to show an injury to the products of the soil, and also to show that appellee’s stock pasturing on his lands was injured, and that some of it was killed as a result of oil swallowed in eating grass and drinking water on the land. Under the evidence, appellee was entitled to a verdict for these items of evidence. '
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.
Note. — Reported in 123 N. E. 789. Damages caused by refineries, gas wells or leaks, 107 Am. St. 245. See under (1) 23 Cyc 1186, 29 Cyc 1254; (3) 1 C. J. 1119; (4) 17 C. J. 884, 38 Cyc 1126; (5) 38 Cyc 1072; (8) 1 C. J. 1004.