Plaintiffs, Fritz Klostermann and Chester Johnson, sued Houston Geophysical Company for damages they claim that defendant did to their homes when it performed seismographic operations in connection with its mineral explorations. The trial court sustained exceptions to plaintiffs’ pleadings, which asserted a cause of action grounded solely upon liability without fault. Defendant urged and here insists that damages resulting from seismographic operations must, in Texas, be grounded upon negligence. The basic question before the Court is whether in such operations Texas follows or will follow the rule of liability without fault or the rule of negligence. Plaintiffs originally alleged, as a basis for recovery, that defendant was negligent, but they took a non-suit with respect to those allegations. That left in this case allegations of strict liability, grounded upon theories of nuisance, trespass and the taking of property.
According to the pleadings, on December 10 and 11, 1956, defendant discharged a series of high explosive charges on lands owned by plaintiffs’ neighbors, just west and across a highway from their own homes. On December 10, defendant discharged an explosive as close as three hundred feet from plaintiffs’ homes. On December 11, defendant discharged a very heavy charge of explosives at a point about one thousand feet from the Klostermann residence, causing tremors and vibrations which damaged plaintiffs’ hollow tile masonry homes. There were other residences, water wells, and farm buildings in the general area.
Strict liability has been repudiated in strong language in Texas. Turner v. Big Lake Oil Co.,
Dicta vel non, criticism or not, an imposing- group of cases manifest that there is no tender regard in Texas for a rule which would include cases of isolated explosion within the orbit of Rylands v. Fletcher, whether we name it absolute liability, nuisance, or something else. Kelly v. McKay,
Mr. Justice Norvell in Stanolind Oil & Gas Co. v. Lambert, supra, epitomizes the present state of the law [Tex.Civ.App.,
In our opinion, the Texas law in such cases is already well along the path which requires proof of fault, and, moreover, we are unconvinced that that trend is the less desirable direction for the law to pursue. Many text writers hold that the theory of liability without fault, even in blasting cases, is a reversion to an outmoded law and that its adoption in explosion cases would be a step backward to primitive conceptions of an earlier century. Smith, 33 Harvard Law Review, 542, 550, 552; Pollock’s Law of Torts (10th Ed.), 505, 511, 671; Ames, 22 Harvard Law Review. See Reynolds v. W. H. Hinman Co.,
Equally distinguished writers prefer the rule of liability without fault in blasting cases. Professor Summers vigorously espouses the rule that liability should be grounded upon nuisance. 4 Summers, Oil and Gas (Perm.Ed.) § 661. Professor Green condemns a rule which would not hold those engaged in dangerous enterprises strictly liable, 33 Tex.L.Rev. 574. He demonstrates that Texas, on such high authority as the Supreme Court, has declared by dicta that it rejects the rule of absolute liability stated in Rylands v. Fletcher, L.R. 3, H.L. 330 (1868); yet, in some instances, it still achieves the same result by changing the name of strict liability to nuisance. Professor Prosser votes with that distinguished group. 20 Tex.L.Rev. 399.
What pressing reasons clamor for adoption of the rule of liability without fault, and the abandonment of the rule of negligence? In our opinion, there is no need for the rule of liability without fault. In fact, there was no need for such a rule even in the case of Rylands v. Fletcher, where the court spoke, though hazily, about negligence. Professor Bohlen wrote that the test of “due care according to the circumstances” was generally “sufficient to carry the case to the jury.” 59 Univ. of Pa. L.Rev. 423, 233-439. Apparently, in the several cases which have arisen in Texas, the familiar format of a .negligence case was enough, for the claimants. Judged either by the difficulty of'the proof or the *666 seriousness of the injury, the negligence issues in blasting cases present no more difficulties than frequently exist in an automobile injury case when the best witnesses are killed.
In the appropriate case, and when pleaded correctly, any difficulty of proof is eased by invoking the doctrine of res ipsa loqui-tur. “In Universal Atlas Cement Co. v. Oswald,
Critics of the negligence rule as applied to blasting cases, without saying so, infer that the wronged party is helpless. This is more a matter of language than logic, however. The essence of the argument for the strict liability is summarized in 4 Summers, Oil and Gas, § 661:
“If the courts in oil and gas producing states should follow the New York rule, the seismograph operator would never be liable for injury to person or property resulting from vibration or concussion in absence of a showing that the operator was negligent in doing the°work. Under this rule the blasting would not be considered wrongful in itself, even though it destroyed every building in the neighborhood, if such blasting was necessary to test the operator’s land for mineral structure, and liability would only arise if the work be done in such a manner as to cause unnecessary damage. Under the application of this rule the utility of the operator’s act is permitted to completely dominate the situation, and the injury to neighboring owners is unredressed. It would be little consolation for them to know that their buildings and improvements have been destroyed with due care and in scientific manner.”
These horrendous results, thus assumed at face value, are terrifying; but concealed within the statement is the admission: “in the absence of a showing that the operator was negligent in doing the work.” When plaintiff’s buildings are blasted down, he is in a strong position to show that there was neither due care nor a scientific manner of operation. As a practical matter, the practitioner would recognize the case as a “good lawsuit,” and the fact that the blaster did what he did, where he did it, how he did it, and when he did it, with such devastating results is a situation greatly to be desired by plaintiff’s negligence lawyer.
Just when does a practice become “hazardous,” or “ultrahazardous ?’ A speeding drunk who crashes into children at a school crossing creates an ultra hazardous situation. Should his conduct be tested by liability without fault, because it was so unfair to the helpless children ? A fire which may burn down the neighborhood is kept within the negligence orbit. Turner v. Big Lake Oil Co.,
To call seismographic operations “hazardous,” everywhere and always, does not make them so and does not prove the need for liability without fault upon the operator. A strong case could be made out to prove that the widespread oil and gas seismographic operations in Texas have produced and tend to produce less and smaller ■damages to life and property than does the modern expressway.
This Court has held that it does not judicially know the details of seismographic operations, nor that negligence is •present. A fortiori we refuse to hold that :such operations generally are ultra hazardous. Stanolind Oil & Gas Co. v. Lambert, Tex.Civ.App.,
Would the law be improved by subjecting seismographic operations to the rule of liability without fault? In our opinion, problems of practice would be enlarged. When does a practice cross the line and become hazardous? How deep or how shallow must the charge be set? Is 300 feet, 500 feet, or 1,000 feet so close as to invoke the strict liability rule? Is a nitroglycerin charge of three pounds, five pounds, twenty-five pounds, enough to invoke the rule? How populous must the ■surrounding area be? Where is the line between the danger which calls for care and the “extra” hazard? See, Thayer, 29 Harv.L.Rev. 801, 811. It would seem that these and like circumstances are better answered by and more readily fall within cases submitted under a negligence theory.
One final argument is that the same courts which reject the idea of Rylands v. Fletcher, yet recognize that there is a field into which they sometimes throw cases by changing the name from strict liability to nuisance. Turner v. Big Lake Oil Co., supra; Texas & Pacific Ry. v. O’Mahoney, Tex.Civ.App.,
In each of those cases the Courts contemplated a continuing or recurring condition. In the instant case the blasting started on one day, was concluded the next, and that was all. In decisions denying the right to recover, a distinction has been drawn between the appropriation of property to a permanent use and temporary acts which are resorted to in the course of adapting property to some lawful use.” 22 Am.Jur., Explosions and Explosives, §§ 51, 52; Booth v. Rome, W. & O. Terminal R. Co.,
We conclude that Texas is committed to the rule that seismographic operations fall within the tort field of negligence law, and that the better reasons argue against our return to the ancient rule of liability without fault.
The judgment is affirmed.