Midland Oil Co. v. Thigpen

cy, existing is in- departmental gas two a relation oil dated Jan- and dependent contracting parties; landlord not uary 24, Osage 1916, running from the being responsible of for torts to third Company, Tribe of Indians to Midland tenant. covering and the N. E. of section % ,[Ed. definitions, see Words Note. —For other township range N., 9 E‘. Series, and Ten- Phrasep, and ant.] Second Landlord Paragraphs and the lease read follows: <@=124 lia- 7. Mines and minerals —Lessor regula- negligently- permitting subject “16. This ble refuse for tenant’s adjoining escape premises'. prescribed tions now or hereafter per- for lands liable To hold lessor Secretary Interior, of the to such relative lands, adjoining mitting escape refuse leases, all part of which made a of this injuries causing result from must nuisance the Provided, lease: that no made expected ordinary, reasonable, use of and purpose by tenant, for premises after the approval op- or from of this lease' shall leased, where the use of erate to affect the lease; term of rate of may may premises a.nui- not become or the sance, according royalty, rental or acreage, unless ordi- tenant exercises as the parties.” both negligently, nary or uses the care Assignment “19. is liable. this lease or in- tenant alone may terest therein made with the ap- <@=124 be. les- minerals 8. Mines and —Successive negligence of proval cumulatively bound for Secretary of the Interior and sees subsequent assignee. lessee or , not otherwise. 7969, regula- Comp. 1921, § St. Okl. Under “20. Each and every clause and covenant Secretary Interior, promulgated tions of this indenture shall extend heirs, Corporation Commis- rule 25 and sion, Oklahoma executors, . administrators, successors, restrictions imposing duties certain lands, oil-bearing each assigns lawful lessees of of the parties hereto.?' on owners parties lessees , several successive Sections 21 and Regulations of the prem- subletting assignment cumulatively or for contracts Secretary approved Interior, August liable held not ises to read as follows: permitting refuse others adjoining property. escape on Approved “21. leases or any interest dissenting. may therein be sublet, transferred, Judge,, or as- Stone, Circuit signed with the approved consent and of the Secretary of the Interior, Court District not otherwise. Error of Subleases, transfers, District or assignments, when so Western States United approved, subject shall be to the terms and Oklahoma. conditions original leases others Thigpen and A.' J. Action regulations under which such leases were Judg- Company. Oil approved, as to such additional re- brings defendant- plaintiffs, ment quirements Secretary the Interior grant directions Reversed, with error. may prescribe. transferee, The sublessee, new trial. shall furnish with sublease, (H. Bartlesville, Okl. Hawkes, of N. transfer, satisfactory bond of Bar- both Hayes McCoy, Caster prescribed as hereinbéfore in connection George A. Henshaw Okl., tlesville, leases. City, Okl.; Hough, both Oklahoma A. C. “Any attempt sublease, transfer, or as- in error. plaintiff brief), for sign approved lease or interest there- (A. Pawhuska, Okl. McCoy, of T. Prank in without the consent and R. Pawhuska, Okl., J. Widdows, M. absolutely of the Interior shall be Okl., on City, of Oklahoma Spielmán, shall void and lease to in error. brief), for defendants cancellation the discretion of such Secre- .LEWIS, Circuit ánd Before STONE tary.” . ' 'Judge. PHILLIPS, District Judges, and All from tanks or “61. B-S water recep- into proper drained off wells shall b.e tanks, Judge. Thig- at a safe distánee A. J. tacles located District PHILLIPS) buildings, that same wells, or end Jr., members of a Thigpen, pen and A. J. by being burned or disposed plaintiffs, hereinafter copartnership, called Qil premises. transported from against Midland brought impossible B-S; to burn the Midland Com- “Where Company, 'hereinafter called pump water necessary it is pany, Davis, Fred 0. to recover 'dam- damage the sur- injuries quantities as would ages alleged to cattle owned in such adjoining prop- leased land copartnership. face water, any fresh the lessee pollute erty, Coinpany was the owner of 'three hereof, mence the penses, with due thereof joining land held covenants, water fuel, hereby acknowledged, and of the of, party (Midland Company) to the a well on the ty tested for oil furnishing lands, described at (30) owner tities at a fendant, Davis. This contract described the sum of one follows: land pany township cited retary disposition from the well pumpings shall shall cent to the tract of land covered face of the land.” above-mentioned agricultural spector. pits, shall be mudding als “That for and On November The oil and The Section “45, gas shall not (Davis) paid, Interior, lands located in gas other into one of which he must instructions in each days [ provide entered notify pit. as amended and was should party plaintiffs duly as amended with with lease. diligence, at Sand of a well shall be run under mining Ifesser agreements and from the material as is suitable for the of such B-S or and other materials all Interior same, drilling The construction of leases, N., be allowed to approved ] ($1.00) due proper tools and Tribe two production, (300) feet to drill well on the leased gas desirous of pumpings 28, 1919, range to the proper Mississippi depth. found in commercial were the owners oil and equipment, superintendent leases diligence a contract with its eode- and that Davis properly prepared May hereinbefore first running to'the Regulations May 13, sections labor, thereof approved prosecute the delivery dollar consideration of the terior. receipt of which is approval part agrees E., covering adjoining location process required gas lease, own costs and ex- the Midland Com- in'-the instance as second .run and such plaintiffs, conditions here- tools, material, salt water.” to a lime unless oil 17, 18, within and to com- 1919.—Lessee the over manner and deposit sand provided: August 26, Mississippi lying equipment, of the Sec- er the second specifically who depth offsetting first the Mid- it therefor on the extracted members, reads of three into the sur- eration drilling, Reservation drilling and re- to drill materi- terms, thirty cover- parts quan- adja- same slush par- shall 4 F.(3d) pits OIL ad- the in- mission oil CO. v. THIGPEN ter; barrels of bailed out about 75 pond. water he slush February 29, 1920, he encountered salt wa- salt water and pond. The cattle of tools and other drilling of an oil well on the lease. About ponds, and that Martin should furnish the oil well. should construct fore Martin, a drilling contractor, Davis rights referred to had been executed and delivered Interior. terest of the well and that Davis should reimburse time fixed pany Hopkins, Assistant Secretary of the In- gas said, the ing drilling operations tary tions after and deliver to visions partment structed tendent of the lime, comply stopped On Davis entered into a It further contract with one This contract “The promulgated a certain lease rules and drilling assignment'; requirements specifically pond and heretofore promulgated should February unless runs escaped either under the contract should terminate; This party with of the state of Oklahoma. the the lease until falling the derrick, This contract completion representative said said a lesser to commence the well within the Interior, thereof with due diligence, his provided: the United pay the rentals on the amount price reglations of the second plaintiffs equipment deposited thé about 50 10, 1920, lease by should not described. due drilling, promulgated by terms, those that execution and of the rules and by of the Secretary of the said Secretary, and with ran party the lands of per prior of said lease hereinbe- derrick, rig, depth Indian now more approved rig, and one slush provided That Midland Com- States, down Into a creek said covenants and heretofore or here- of the Interior De- drank foot. Davis con- barrels of the salt thereof same in Martin agrees Corporation and drill the well in force, govern- ,or acquire * * * ” doing than part, Agency the failure of well, the first Osage to drill the and to the oil and delivery completion that Davis to execute by S. G. began the Secre- plaintiffs. in' and slush filled the prosecute as afore- hereafter and with superin- * * * any in- ordered regula- consid- or oth- water, Indian slush Com- part, fully pro- REPORTER, 2d SERIES 4 FEDERAL tiffs -would ployed at the well fendant were caused ponds the maintain them, Midland 'Oil tions of the Interior ticulars set fendants that was ply Department and servants ponds ter from to this court. ing contractor, Martin. well and- plaintiffs in the by plaintiffs; sonous negligent Davis, and- maintenance sions of from the oil escape water state gently permitted salt water and was entered ponds in ages the slush The leases amended ty ever to do' either with the Oklahoma Company sued out a writ of “But'the At the trial the court instructed the “At the The trial resulted part of defense Corporation permitting and with water, drawn from the well. Davis alleged the resultant alleged therein-, of negligence, supply. escape that salt water cause of action set plaintiffs were matter deposit, waste as' follows: Davis had no other Davis, and sought Oklahoma, company pits, petition sounded in tort. acts or cause responsible for the taking part such a the with flow outset, you was an defendant relieved of so construct wholly by Company and Davis were engaged in the wrongful and enter well, rules and of the not available to the purpose coming poisonous the in this action. respect down Commission sum in that ' company way their thq was the injuries to construct or maintain Interior,- verdict and the Midland that independent and Midland Department the" of in effect: onto damaged right-to from the permit would be of liability by acts Davis, amended to they failed $4,292. Judgment as a products including regulations agents, employees, the the acts and omis a 'verdict for the slush substance company catching water the construction up .duty that the plaintiffs’ providing construction the instructed that the salt water of the state complained regulations of nothing Company and his drill- result of the maintain the -lands leased construct or error which dam- ponds laws they negli- contractor. pil petition. oil well effectively were such plaintiffs’ That company the salt wa- and de- each. to the de- well coming regula escape. of of Plain- work of there- what- cattle slush com- guil- Company. The court ** used jury par- fact poi- em- the the the of of en him the contract with ,a provided that vided that the might cupiers land the part mitted. upon not avoid leases, .transfers, tort. therein, lease, us. As termine breach of time the tions the Midland plaintiffs imposed by gence. Upon that Interior theory that certain covenants of Secretary both based were tained the signed, leased Davis, pany ages Davis or his Davis, this instruction. Company. requirement instruct Therefore,- pany Company to plaintiffs,, confined Paragraph At Whether Clearly plaintiffs The ^[1] verdict provisions Secretary jury to the cattle of of the made for their benefit, is not before promulgated the Midland the outset it is duly It was be dated November premises, Midland lessor, might the relation of drilling, Counsel therein, and this was assigned wrongs complained by-entering the covenants of the adjoining property. against question excepted. or not an thereof plaintiffs lease, that the breach of a jury that trial court and to this court. demised requested the Interior. numbered 19 predicated upon Company lease, stated, of the lease and drilling, and- Company duly excepted Midland consent and sublet, transferred, the with imposed by Company theory, the jaw.” under reference were made plaintiffs. did lease, or Davis. were Interior, requested the court jury should not return important plaintiffs premises, assignments t.o action could main- into the violation thereof the to, direct contractor defendant, liable for refused and Midland plaintiffs each if Davis drilled of Secretary strangers it approval interest They any, which it Midland Com- participate or control of were com- authority giv- legal duty positive alleged lease, to other, contend the Midland -lease, that we de- an absolute the to instruct sounded Company, presented the that sub be when must be were rendered Midland Midland to Mid- therein, interest regula of the at the or as either negli- could Com- dam lease with pro that oc- into between until the that Davis der and of an interest in and to said leasehold, tion signment. Plaintiffs in their when so construed must be held to mean time light lease until diligence. veloped on Davis held the ises, full was it his failure either meantime. From condition that ment of the would have been the same sign control and conditions gave stipulated upon him pany except lease. delivery might prescribe. quirements out in the There approved should executory contract and the on the session and ulations under which nanted thereof with due performance proved, as well Company After the execution prosecute interest in receive the formal the lease formal of the well and to reimburse Midland alleged: benefit of Davis should the lease to Davis specified of the other to was no interest left in clearly passed therefore It did payment by Davis the execution and upon completion contract to assign for rentals cash consideration. contract, would not assignment as the position gave the execution virtue of” the thereof within the time by him of certain duty more, “ * * * properly. equitable had no it language him the acquired prosecution original the lease to Davis lease, acquire might legal diligence. portions reference to the drill it him on such date of a namely, the commence was to drill equitable perform date of commence within the acquire of this such leases assign placed must be read in the A at a futuro date longer paid by such additional an oil and discovered and delivery title to the lease. equitable title Davis is the right be defeated lease and no interest in the thereof with due wit, to the terms contract entered of the oil Company cove of the contract of the well specified Midland Com amended contract, contract Mid- Barron subject Davis the lease. the oil well. this contract The contract right the contract title the Interior delivery It was and Davis. of the as an things it execution, covenants Miller McElin right title, and 0 equitable gas imposed a effect drilling fany in in the Merchants’ to on the owner prem peti Mid well, press 4 F.(2d) pos title reg OIL nor un up ap de re as set of the of Midland CO. v. THIGPEN (cid:127)negligent trol of the table the tenant. Counsel’s lessor relation of N. Willis v. injuries alleged Tie was a tenant in of the tenant of covenanted the commission sive. lessee stands Pa. the walk or third thereof. 79, 145 ed gave Kilroy 933. pany 626, 149 Davis was the session and sion or control of been an sor, same From the “The ^{[4] [3] [2]} landlord. repair Y. somewhat similar Cigar steps action steps leading original Supreme 150, substantially the same as and Ms and section rise to a impose Flood v. Pabst notice thereof had been passed 129, In that so that a First, then, Upon v. v. S. W. v. allegations N. W. 107 Snyder, absolute within a reasonable time after ex- landlord, Landlord and failure Stores failure of the landlord City 15 Liedloff, Realty ground foregoing control of lessee and the a having possession in a Note, A. Am. Court of Iowa in the case of duties and cause of his lease to suitable for premises ease, are no 769, 772; legal did not retain either to have been caused 489, Davis, lawful 682; Clancy occupant Co. 65, pp. premises. a 190 breach thereof et St. Louis et Rep. 391; position did the covenants of the & and Davis that of dwelling in favor below. The court said : 92 Am. St. 95 Minn. possession. duty al., sublessee, L. A. Brewing Improvement question wrongs complained Iowa, 248, (Sup.) leased greater we conclude that the action in principal and at the time R. his relation thereto possession landlord, plaintiff, the front poreh to 208 Tenant, landlord to Borman v. United responsibilities keep on Midland Com use, similar to a les in full control entry premises. house, brought Ill. Kelly v. Unit 170 N. Y. S. Co., 158 Wis. given 1916F, than that of v. 474, came before al., was that of tort and control sublease 180 W.N. App. 605; See reliance is Rep. plaintiffs? Byrne, a licensee there are based the lease. who had personal 242 Mo. Co., 104 N. against byMm posses- repair 1 Tif repair Davis 1101; inclu equi- 507; pos con- had 264 56 p. to REPORTER, 2d SERIES 4 FEDERAL 90 App. 414, failure of case will-be found to vis, fore that something contrary authority. Hill man action on the 69,Me. ise, cause of her ton, 164 S. W. 237, upon sustain ises in 220; present as her Robinson, this 22, 52 N. E. 1086. authority ciple that, App. R. H. 13 Ann. Cas. ciently It is 581, Ann. Cas. but ant’s A. that this action of tort for be maintained 832; Dustin v. imposed court, W. ages resulting should C. Glynn “In “The In the Smith, the 478, 106 268, A. N. Y. S. obligation plaintiff’s parties. course failure opposed 289; Frischberg v. C. question, if we assume duty, although may 87 v. doubtful whether omission to whom the Miller v. 404; Courtenay, Earle, employment in a (N. S.) 330, tenant, make, definite to J., v. repair A. 49 A. 57.” 67 A. plaintiff claims' that he was Brown, tenancy recovery based Mo.-463, case case 182 Ala. Lyceum Theater 315; Korach 796; resulted in the breach of a where there is O’Neil v. well-reasoned Am. law, omission in Corbett v. R. the violation of a bare' all tenant, speaking 636; injury said: case it had created lessor to a S. W. Rinaldo, Misc. --* Curtis, 74 N. against' I. v. 169, duty 3 necessary repairs, 1913C, Cromwell v. warrant either repair, employment by Dustin v. Day, 108 Me. 11 R. A. Q. itself creates a' will to an 188 W. * - overwhelming weight Shackford In so 615, been Ann. that to maintain the Rep. 691, proceed upon that the 790; Brown, L. B. that the evidence guest general duty, might Packington, lie cast. upon tort for dam- v. Hurter, 971; Anderson supposed, upon 62 So. agreement due to the defend- it the 511,. far as these as -the breach of Cas. one of the terms 10 C. New opinion v. A. for a Loeffel, consist Kohnle v. 'because of does an. the defendant Co., negligence defendant respect, of Allen, H. Curtis, case 158 630, plaintiff agreement- * * * 1915D, 3 Ann. Cas. 155; (N. employment- conclusion; the B. Hampshire lease, 512, 467, not follow 173 breach Coffin, Rep. 87 Conn. Ky. of Boor- duty, 66 L. touching 168 S.) 73, made 151 Ill. is suffi- 6 B. & tenant. prem- unless prom 74 N. on the defendant Davis ever 47 Mass. be the 81 A. doing ‘That prin there cases Pax 829; duty they 118, may Jer that was Mo. Be decided in Towne v. can be- R. L. v. the foundation of the pany, is no is a v. ligation arising thorities, mere tract laration said law iión has been stroying the well-known distinction think tive Railway,. ble to refer manner in which some stating by'the sons duty imposed law thought defendants for the breach of their of landlord Am. clearly actions Tucker, make benefit entered into See, contract; case, tract 317, ^[*] “In Railroad, whatever cannot, according considering action. ^[*] relationship, duty. Having parties' duty independently that, upon to have Ed.) establish 44 entering duty is* declare not in we cannot hold general duty, provides violation repairs itself. The 145 Mass. * accordance custom the imposed by law of contract and thp 1 H. fit, A. 2 which the be the but he the same ultra must be his tenant or a member E. This 492, have be well distinctiofi between way 87 parties to the brought form actions & the cases which so. & contractual, for is N. of a contract, called, action contract with tenant, was out óf N. distinction between assumpsit; ease.’ And in Tattan 46 L. R. being so, tlie brought 169, (common E, an action of tort. Y. (cid:127) of plaintiff chosen only, because.of is not the basis stated as a Without subject, subject, based 500, contract, joined.’ contract, also entitled 844, an action of tort declaration is an realm soon as the 382; Thompson, 68 common 13 is an action is a done; this suit act tort, imposes, and it action counts actions Pollock, N. terms his Coekburn, the upon relation between carriers) A. contract and 1 Ch. which the con Tuttle might, but when authorities, E. foregoing- action on altogether de said: action on latter 478, the imposed up where there having principle of seeing that of liability of landlord 465; some substance.’ actions being becaus our atten Pl. C. Legge negligent common- contract. contract, plaintiff, that plaintiff impossi v. Com the framed, that no relation of such ‘What sue tort, an ob course, ‘When * * N. B., in C.- (16th there, posi Rich That been per con dec au-; the the e J., H. he v.. v. I thecovenants of n landlord two for itself has Wiswall, servant responsible sought persons the entire control thereof case the do Where Dec. another, he is responsible 91 L. to an tiffs. 234; sion to tenant’s and his into the 91 N. Y. S. mere failure ly Mc berg, v. repairs. ant, tort for action cannot be Spaulding, agreement 49 ily, App. 26 Hamilton, 169, Am. Sherlock 855; I. A "Where We therefore conclude that the breach of [5,6] agency. held that a N. E. Mandel, Ad. L. 129, App. Am. A. p. the torts of his tenant. conferred or his independent contracting parties. oven if the tenant or 13 775; Maloney Hayes, involves no idea of or misuse of Div. Stelz v. Van scope relation of landlord and tenant one is the 57; 1095, to make the act, are repair premises N. E. 58 court said: legal right family, it follows that is not Second. Is & personal injuries Cyc. 911, Div. App. Rep. 691; 87 26 Shackford & guest, 76 4 Cush. Eng. It is a relation concerned, and because Tuttle v. N. Y. S. of his T. Rushmore, of the defendant repair. Barb. 28 1115.” responsible § 210, 152; tenant, a member authority upon occupant lessee of the App. plaintiffs 465; responsible Div. 636, landlord has 438; Jones, contractor, Ind. tort L. R. A. the master or 613; maintained because Enc. Law partner N. Y. S. cannot sue a 49 employment, and control to control v. Boden v. 66 Div. proprietor (N. Y.) lease did not Dusen, v. wrongful (Mass.) Schick 716; N. Y. S. Company, the owner. City favor of the L. R. property by Coffin, for ho has the fact, is, 91 representation 413, (N. of another, due to Martin? existing premises v. Rushes Gins App. ferry. 437; Feary L. N. E. v. N. 93 (2d of Lowell In Norton third 277, S.) Smith, the latter to nuisance 206 it is 618, hi? A. 78 Scholtz, principal have & T. 962; far Fleisehauer, act of the ant, 95 Me. landlord in of his fam Y. of the ten because, App. 145 Mass. negligence tempt acts Ed.) 231, Div. his omis N. keep 478, 16 Mass. conduct. 50 v. as third the lessee? The to make general a In that necessarily result from 516; present having passed power Frank controlled plain- 26 R. Y. R. with- ferry he is 592; 216; of 4 Am. Div. The spondeat superior.’ OIL rise 106 her 69, F.(2d) of ant, or C. v. v. He cannot 1, S. 1 out his consent, CO. nary were property gently, by not makes them, bound lord will er use of the ordinary him a trol, How gard of the lease the rights. By gard He ferry. possession and temporary trol farm rights where the to the owner or service under for the time ed owner —at draws acts so, simply sor. He is a sumes the partnership, condition of lessor elothed with cy, liable S5 ^[7] them, v. THIGPEN the lessor. The compensation, this relation the tenant and because the the rule does not his servants. He cannot control them. authority and assent of the other. stands the nuisance lessee of or from the it. He cannot give or independently leased, to it. He is, during then to it In order to make the landlord liable to take which, of owner. The the tenant usurper, applicable no He cannot to him. Having he is not for according care, not be liable for obey. expected give relation duties and parties can he be liable for the acts of least operation than a injuries being, because demised substitute him. acts within light no relation to them may directions, them ferry very lessor is set foot consideration of imply has no more They if the use of the quasi causing conferred no servants of the lessee are rights alone is liable. The he is, responsible stand towards each other purpose uses the towards each other which run use of them the ten ” continuance occupant as the tenant exercises and lessee. The takes the very intruder —a lessee of a house or a or third He has an caused terms and orders obligations he has has similar him him. premises owe no apply. owner. He has the. that each acts with it; lessor may contracting parties, for the time for the lessor. He displaced or to exercise con- principle nature and would be to make ownership directions in re- person. reasonable, no which for He cannot con- premises injuries by which responsibilities not become a He cannot be for their aets. injuries place agreed to be cannot, authority up- rights allegiance scope power Such maxim 're- by by trespasser. of the les- agreement adjoining premises. premises from the they stipulat- improp his ten and as- To at- caused in re- is the which lessee, negli object being, land lease, effect equal agen- with- must ordi they over But 91 or - REPORTER, 2d 4 FEDERAL SERIES 92' erection of- by the the manner of premises tenant misuse premises, but surren- tanks on the leased merely possi manifest beeau'se there was complete possession control bility way. dered there- being used in such their of the lease. 593; note, 16 92 Am. of to the term p. 1074, R. C. the'lessees § L. not Rep. 524; Carroll, 46 that the lessor was holding Maenner v. Md. court The. Ed.) 193; (2d liable Wood on Landlord & Tenant said: 536; “Merely to -commit a Langabaugh permitting v. 68 another Anderson, et al. its A. liable for 286, Ohio St. 67 E. 62 L. R. does not render one 131, N. nuisance & 948; (Spring consequences. Landlord Ten- Murray Wood on v. McCormick et al. 733; up a (2d 536, in section sums App., Mo.) Ed.), field Court of 282 S. W. ant Pennington 123 of the landlord Pa. discussion of the Klemanski, 591, v. 278 stated, 491; Meyers Mfg. may be Pepperell Co., A. 122 follows: ‘The rule v. 265, that, order 625; 119 al. be authorities, Me. Rice v. White et result must (Mo. Sup.) 141; charge landlord, al. the nuisance 239 et S. Shellman W. 654, ordinary Hershey 641, necessarily from the use al., App. v. 31 result et Cal. tenant, pur- Allen, 271, 66 Ark. or for 132; premises 161 P. Baker v. let; and where 93; pose 50 Rep. W. 74 Am. St. Mur 414; improper or (83 Mass.) 1 ill flow from the ray Richards, v. Allen results premises ten- 127; Fergu negligent Collins, Law, Todd v. N. J. use 250; Edgar or, the use Hubbell, Hun, ant, words, son v. in other v. nui- 582; may may not become a Walker, premises 32 S. E. Ga. Clifford rea- Mills, sance, according as tenant exercises Cotton 146 Mass. v. Atlantic negli- Rep. 279; care, premises Gardner sonable or uses the N. E. 4 Am. St. chargeable for gently, L. Rhodes, 929, 41 S. E. tenant alone v. 114 Ga. damages have 749; Metropolitan Savings arising Bank v. therefrom.’ We R. A. storage of oil 68, 39 that the crude Manion, 87 Md. A. 90. observed adjacent adjoin- nuisance to Carroll, supra, In Maenner v court- itself and if the lessor even knew premises; produced by drilling be would premises “If a landlord demise which are premises, she would not in stored nuisance, themselves contemplating the creation main- may not not be such, according become to the man nuisance, tenance'of a unless she also knew ner in tenant, used negligently it would be stored the landlord will not be liable' for a nui lessees, cared for aid it cannot sance created the ten aas matter of law that the lessor responsible He is held enabling ant. -presume should the lessees would nuisance, commit latter negligent in that behalf.” Owings [citing should think to do so court, MeElin, supra, Miller Jones, 108; Md. Rich v. Basterfield, Eng. 782], Com. B. Com. L. In said : said, public gen case in sense, such one and the “As to third lessees], permitted they original the as own erally, landlord the tenant create [the somebody nuisance, term, put the but not in suck sense as .the could else ers of occupancy him possession, render liable.” tenant control from his Langaba-ugh free themselves Anderson, supra, In et al. v. brought against principle the same plaintiff negligence on an any owner of an interest gas to same extent that lessor lessees oil ** burning plaintiff’s may in manner do. in land recover build says where the adjoining [appellant] also land-' premises lot the leased She through alleged negligence premises from which les lord has leased originated, tenant, being the escaped sees, whereby oil from a on overflow tank control, possession lia premises; and flowed under the entitled to negligent premises, of such use building slope thence down the a ble for Chicago Tel. v. Commercial Un citing Co. creek, it came contact hill to a App. 248, 131 Ill. and Led Co., Assur. Are, followed back the track ion App. building. Fox, 151 Ill. 300. This is plaintiff’s oil and burned erer v. of the negli premises applied of law her statement lessor had leased correct The earing pipe for a water gas therefrom, gence producing oil purpose one-eighth acts of of tenants reserving many oil to herself Thompson appear will reference’ pipe in tank or lines. produced, delivered right Hegligence (2d seq. ap- Ed.) control or et It She reserved' no direct (cid:127) necessarily arise from which continued after the contract between Midland regulations of violation wrongful acts of Davis constituted a tractor legal' tend that ble in Davis. pany was not use, templated Comp nuisance negligent use of liable to will a certain authorities, the rule to be management latter’s were caused spark erty plaintiff. proximity damages upon Cormick leased it to of the adjoining more liable than hardly be conceived that owners of title but ble lessor to man Id. We notwithstanding, al., plies of the fee and We therefore conclude that Midland Com- tanks or wells “From ^[8] repair. wheat. owner Secretary of see no difference for nuisances owner naturally arise, Springfield Court of burned the household had no control over the duties uses not the case of arrester. damages St. Okl. lease. Id. state threshing property. the owner of the land to recover of an estate strangers Counsel for necessarily arising to thresh the his landlord these authorities use; use, tract of land. it, to the house If of a tract of Id. 1161. The tenant tenant but the landowner will not be tenant. The that, appellees liable, and, regulations liable for the from legal occupancy nuisance does not but if the plaintiff Oklahoma Sparks escaped, a nuisance a contract 1162. It outfit was ^strangers.” the manner in Murray who Corporation and created where land is leased for engine. theory as a the landowner will be Interior, which, plaintiffs The owner is and rule 25 and his Davis, wheat. principle.” owner Midland employed had owned the fee. brought also keep because after agricultural v. McCormick et land was years they promulgated by imposed is not a Appeals, supra, duty injured we use a plaintiff existing put placed in had no from goods section and contemplated improper owner of the dering thereof ren- drilling further con and in no case citing ipany Commission can declare and control. The placing of the some other set on which the court held subletting, plaintiffs. they an action the same it would the con- the term nuisance that the one Mc- question upon planted certain not lia- after proper on the engine the prop- con close were were 4 F.(2<1) fire, sub- lia- OIL CO. by tanks, tion of this pany ly contractor, ute drilling lowed to receptacles over the land. Salt water shall not be al- stock; and all impose primary reads as gas protection within tank, pool who owned the transferee or the same lations rather but and who actually circumstances we do devolved, not each create a cuted the original parties to Upon came when he in the lease terms of either to drill ed, plated by regulations successor of intended to duties of a press This is a -burned or “No inflammable The Oklahoma plaintiffs well shall be not the Secretary succeeding THIGPEN it had binding upon wells or sublease, terms of the intended to the class of imposed of the oil well or the permitting of Secretary water to flow Company. By follows: the lease same, cumulative nothing framed the Davis, whether he be lessee, execution, approval was at a safe distance from the In our became statute or stream used for watering apply penal transported .Midland attempt assigned intended to bind cumulatively lease and over the waste of assignee. shall be drained into buildings, shall it be transfer lease or an not thereby covenanted to drill owner permitted lessee. its escape. statute general of the Interior were not whatever to the Midland and the operate the lease statute. Midland Com- developed product statutes by opinion binding the Midland Company, Davis, > assignee. nondelegable to hold Midland Com- lease and Interíór, liability. the lease. surface of the land.” violation accordance acquired Martin, invoking devolved from the premises, or assignment, believe these and be immediate- They The permitted public Clearly, a viola- and refuse from regulations. to run into and as contem- enacted for the interest therein regulations when upon, assignment by or its the terms of the Interior do with do not fall Under such lease or to referred to thereof regulations, They were regulations solely,., and which By this stat- upon, sublessee, liable to duties. operated the well. the well drilling and the delivery obligat- to flow assigns, interest person the ex- oil or regu- exe- but be- by By REPORTER, 2d FEDERAL SERIES H by par- reimbursed said first party shall be commission act, to >pany for a tortious exe- ty payments upon the for such rental party. way a in no it was assignment.” delivery of said cution Commission Corporation 25 of the Rule provides: It further as reads follows: by and between is further “It or below water, “Fresh whether party parties hereto that said pollution, protected surface, shall be not receive, does not part first is plugging.” whether ' lease hereby acquire, any interest in said regulation of the nothing in the There is is assignment until executed and deliv- said an in- to indicate Corporation Commission ap- for, duly provided ered herein to an own- applicable tent to make the same by proved Secretary of Interior.” control er leased and surrendered who has not It also contract shall provides that the possession binding by approved until it is the Sec- assigned surrendered' has or sublet and who was approval That retary the Interior. assignee or control expressed secured is as follows: have to To hold we sublessee. would “Approved understanding with the' that language con- regulation read by acquired no interest in will be tained therein. assignment ex- Fred 0. Davis until an is the Midland We therefore conclude ecuted accordance with the legal duty imposed no violated by approved department.” plaintiffs, it law in favor quotations make These from the contract tort ever ac- that no of action in cause very clear that neither Davis nor the Mid- plaintiffs the Midland crued in- Company nor department land Oil Company. (either up- presently the contract tended erred in its in- follows that court operate assign- an performance) out, jury above set structions to the conveyance of ment of the lease or as the requested failing instruction assign- any legal interest therein. Such Company. re- The cause is performance; ment after was was come grant versed, with instructions formally to be a in- executed delivered trial; and it is so ordered. new strument; subject to approval and was Judge (dissenting). (or department. If disapproval) Circuit Both STONE, independent is here the “approval” contractor the rule as thereof department definitely carefully and if Davis is such contrac- set applicable held, course, Midland cannot be out 'that no “interest ac- in” the tor, is applica- quired. assignment of- Davis until such an no what rule matter legally responsible approved injury for the so com- ble as to the delivered. The injury. plained of here occurred assignment here made is that Davis and months before such The contention was requested. independent contractor even While record shows assignee assignment attempted lease. There to be sublessee importance approval given later, of vital be shows no thereof may be a- difference Hence, no relationships.' department; the ne has ever these tween determining legal nor bond cessity the true rela recorded of Davis as been assignee Therefore, Davis and Midland val- tionship between Oil such recorded. no been, been is revealed in the contract has shown to Company. This id have my thereof even the date trial. To them made Department. mind, That contract the above establishes that Davis was the Interior assignee provides shall, that Davis at his own ex in no sense the lease or a and, Davis never has had as far a well on this land to a sublessee. pense, drill certain shows, has not the consideration is as this record now depth; therefor in this lease. He not sublessee, thus: interest expressed nor thereof. part, “The of the second transferee Since the con- definitely carefully expressed drilling, agrees of said to exe- sideration intention parties was that party Davis should and deliver first of all cute in” lease until completion well, no “interest the for- upon the of said as have part, assignment delivered and approved mal was aforesaid, here- .said lease no was delivered until pay and since specifically described, inbefore injury approv- this and since no falling, long for in after provided said lease all rentals attempt- yet place al takén and since an completion said has prior due assignment without “ab- however, such is provided, second ed depth; Said said opinion and tion to applicable. contractor both the Midland Oil sions of Davis.” The court was not by the same court at different times. recognized principles' by different facts cide these m settled law 445, 620, able variation result of 1546-1566; lowing tance. where decisions injury restricted terest in or ance not liable plication solutely void” defendant; U. status of has been can this lessee pendent ent general not in the means lished. This sented (37 The trial court determined that this case act In The “The will charged valuable page general rule the some Rep. page exceptions within which work always L. Ed. is unlawful. contractor. Casement my judgment, “responsible for principles of a ay latter, 615, injury general : general unless Among governed by 119; absolute practical completely parted with? contractor. But (1) announcing independent contracted be rule within an that the defense of independent at particular 582), easy ease notes in 65 liability on account general this work did not (4) Where the is the several page a tort committed gave 382. precautions found be heard to rule and the thereto. Clear there the result rule is that sometimes (Regulations No. R. C. and extended lists of citations “not available” and falls. 26 general to determine whether the valuable note exception where contracted (nondelegable) 833, and as well Every 622, rule he to the defendants exceptions result is, naturally, indicate which excep- companies for is' as follows: exceptions contractors. case application L. exceptions. the acts and omis- Also see note at 65 L. the act contracted L. R. A. at injury 13 S. Ct. rule is not 79-108; general was an general Cyc. claim that its jurisdiction are place this rule court in 66 likely v. a defendant for; exceptions regarded exception and, difficult exceptions delivered statement of legal impor nonperform is the direct Brown, taken; are the fol of the lease was and Davis work, (2) independ- it within duties courts 21), L. R. rule and consider- of these rule for consequences to cause 672, an inde * * a series 76 Am. accomp- a little repre- pages where while It is' here dence here shows that the natural and the Cyc. 4 F.(2d) how OIL CO. v. THIGPEN 148 has 675 de- ap (3) are no in- is ” 742 and note. injury to would be necessary consequence 121 C. C. A. 621 cob Doll & Sons holding measures gence which he had no reason to anticipate, there fact default liability for injury, preventive measures may mischievous consequences jurious committing work to a contractor to be exe- 1, Q. D. 321, very well said: cuted over to him work to less poses. Approved August 26, the injury here resulted not graphs Approved May 13, 1919. If it be ing contracted for but from the second of contracted for is likely to That exception confine and control the salt water, quire such wells, such refuse. Leasing posed of on the of the department, governing be encountered Robbins, ton, 72 N. essary result of digging a as here Oklahoma, for Oil and Gas Mining tions 427; bins of the work within .the statement “There ^[85] Measuring fluid wastes work leading certain preventive prevented, is within the is, 21 L. Ed. B. v. because “slush from St. general the omission to take him on the other just of Land in contracted Chicago, 2 Black, Paul for such is an of the jaw, and 61 which, exceptions recognize H. case of Bower v. liable pits” consequences if such the former case exempt from the injury contracted for. Water Regulations be attended with rule. (including It was the precautions are hold and would obvious difference between no matter at 326, Lord Cockburn 485; present applicable surface. The (3d 418, if properly done, first precaution for, consequences Wall. hand, good can be resulting Ribetti, Co. I think C. C. Amendments thereto. injury A. 17 L. and is not Thomas v. R. A. exceptions prepared adopted. arise, is the facts done will arise unless situation cause natural 678, have to be dis- deep where the work Ware, A.). from the drill- Ed. various caused this case water) 203 F. Peate, L. 1915. Para- above Reservation, from which direct result Govern authorizing ground for taken. Chicago injury 298; are not well, failure necessary injurious- the above L. R. said that itWhile Harring- governed then the handing applies. L. Ed. arise.” receive -whose „ no excep- negli- would kinds Wall. Rob- Pur- falls evi- nec- Ja- has un- in- re- R. 95 A. v. REPORTER, 2d SERIES FEDERAL “any dry in or found abandoned well.” pol- of this unless users stream of the water regulations pursuance are in of the These prevented. lution from this well were (34 3) and have the statute Stat. of the is, also, within' the third This case They not statutory requirements. .force of injury results exceptions because the only to- the relation established duty attach nonperformance of an absolute from but the' to the Midland Oil" Company. We need not of Midland Oil in-_ in con- specifically included imposes up- quire the common whether requirements placed All of tract. these duty prevent on a landholder absolute upon the The”lessee is injury lessee. of a pollution of stream contractual or contact with Here, positive user thereof. there is (owner land) or Nation enjoined pollution. such prevent' supervising government, which is (above cited) Regulations Departmental making, of such terms and enforcement require Paragraph positively this. spe- is leases. the lessee which alone amended, is: regulations; cifically named pre- properly provide “Lessee shall two obligated by alone contract which he must pared into one of pits, slush by a alone bound bond for benefit materials deposit pumpings and other sand ar- .very evident intent and the owner. The process from extracted the well rangement is to look the lessee as is suitable drilling, but such material performance the full alone for lessee run into mudding of well shall be regulations permit sub-leases lease. of such pit. The construction the other assignments (Reg- transfers of leases subject approval of the pits shall be un- ulations, are invalid 21), No. but such and such mate- inspector. pumpings Sand un- department and approved less to run over the rials not be allowed shall sublessee, ‘transferee or less such of the land.7 surface, conveyance the same shall furnish with Paragraph 61, amended, is: required original kind of bond as tanks and salt water from “All B-S attempt sublease, trans- lessee; “any recep- off into be drawn wells shall assign any in- approved lease or fer per- retain without tacles to hold and same ap- consent terest therein without" the it to'' run over the mitting surface' proval of the Interior shall ravines and creeks and land or absolutely be void and shall used, sump tanks or holes are where earthen shall, lease to cancellation the discre- any located draw be Secretary” (Regulations, lío. tion of such places be located in ravine, must 38-67, 21). Regulations (paragraphs will be so constructed that water from rains inclusive) minutely define the duties of them and wash out the B-S not flow into operation under the lease. “lessee” as to dams, destroy and in where the cases 38-67) (paragraphs All treating pro- run some B-S is no.t to be be vain unless the would lessee cess, quantities shall when sufficient same responsible did the ac- held no matter who every at least once week and burned be (repeat- word “lessee” tual That the work. frequent possible. when more intervals Regulations respecting edly used these B-S, impossible it is to bum “Where loosely used is evident operation) was necessary pump salt water it is or where Regulations that the the circumstance damage the sur- quantities would in such actual work drill- in mind that the adjoining prop- land or face of and mot ing might be done any water, pollute fresh erty, or (38) paragraph The first the lessee direct. shall superintendent, who notify shall heading pro- “Duties of Lessees” under the as to the instance each instructions agents of the lessee for resident vides salt water.” of such B-S or disposition This action served. notice whom department Further, the solicitude incapacity or that, in case of provides water from contamination protect pure designated agent or substi- absence paragraphs shown from oil wells is upon the tute, “any employe of the lessee paragraph 43 no oil well 46 and 58. contractor premises, or the feet of “es- located within 200 can op- charge or related person in express watering place” tablished considered as shall be thereon” erations Paragraph required “meas- permission. “any employee, agent and service pollu- the contamination or prevent ures to deemed person shall be or other contractor supply water encountered any fresh tion of lessee.” gas.” oil or Para- service drilled for considerations, preceding From protection of fresh water requires graph 58 to establish such an unusual for this injury. Obviously, the injury was tion whether no basis whatsoever ment below ter enjoined by the Oklahoma statute (quoted lessee, Midland Oil the result of al proposition. fore, any injury statute, independent plaintiffs) was subordinate same land former because of the certainly require present the defense of was tracts to do a certain to take the tractor’s tract of lease. utes) and assumed as quoted lands under out ployed to take a certain liable for their another to do it.” 14 posed open liability. required the As would seem that to which the cuse his required by the lease form bound municipal ordinance here, employs another, and where this Affirmed. I This leaves for determination The numerous citations “Under some circumstances is no defense dealing suggests delegated by paragraphs done and conclude, therefore, recourse. There right to the the actual work. those duties majority upon one which he 4 F. —7 occasioned next contention to the text ease, departmental failure negligence. usual, (2d) do the work under precaution was abundantly grazing (with company, yet contractor was not independent there was prevention charging violation of a performance lease was independent precaution opinion). non-pérformance right 45 and careful duty was that a mineral naturally some affirmative saying precaution Company. leases such view. obligations in requires a Likewise, if regulation and should be R. C. L. injury complained of lessee is, operation thing, he cannot and that the failure Thus if a statute way support that the trial court contractor was such contractor to leases, cannot expressly that, is the ease in my judgment, when work is be- that I think both absolute (such contractor is not resulting due to the con- for with release of those (above quoted) would be with- the defense of was SCRIBER force the use of the duties are positive position. - use as could is not he even enjoined by open Regulations and, the above- it. very delegate to of the lat- nor course as held exception- though ho person to absolutely It would employed one con- showing subject. though In the things to the taken, there- judg- he is ques- thing stat- 4 F.(2d) con- per- em- im- ex- No UNITED STATES ky; the same paid him Acts, bile he would plaintiff in error. Mich., on the brief), informed that ing attempted, was firmed. section Detroit, sion, arranged Baird, below was a customs inspector Michigan; Code said, conviction, United States for the Eastern son, both of Detroit, ed their wishes HUE, dock at Detroit. fense, because for tion. a 10287), tion of though 2. Criminal eral 1. (Circuit bribe, 1 Upon defense to ed, held to warrant conviction permit act, Before DENISON, MACK, and DONA- Andrew C. Baird Criminal bribe, In Error DENISON, Chester Morse, Bribery support A customs A favorably in at accepting coming agents depending (Comp. SCRIBER v. UNITED STATES. Circuit doing proposal not in trap contrary to section 117 of the Penal under Court cannot Claude S. Beriber. Mich. he day, for his that afternoon Detroit, Arthur J. J. and defendant (®=3l(2) Acceptance prosecution conviction of as a in from as well. —for intended to let them accepted charge trial, illegal though not plainly before actual fact point officer, prosecuted inclined; Pen. Judges. bring the bribe intoxicating ruary 6, bribe to (Delos Circuit set thing <©=337— arrested the District Court of the Appeals, test, expected No. 4194. particular him. prepare the indictment Prohibition intended, Mich., Code, — up entrapment Canada illegally import stated Tuttle, Judge. 10287).1 he Asst. bribery. G. 1925.) by the United States Judge. Respondent Entrapment permit was Mich. they They the United was offered pass § him Sixth money Smith, Detroit, brings Frank favors. customs whisky; was com is sufficient basis liquor importation containing sections of Tariff U. S. bribed Scriber’s test — arranged hinted to in fact their automo Judgment agents, being offense such Circuit. Feb- (Fleming for His defense (Comp. of bribe to go error. Distinct of brief), W. Atkin- accepting Atty., or, as a accepting inspector he seem States. Later along held not importa- whisky, treated permit. intend inten- collu under whisr ferry St. § was him fed- Af- for de- &

Case Details

Case Name: Midland Oil Co. v. Thigpen

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 9, 1924

Citation: 4 F.2d 85

Docket Number: 6469

Court Abbreviation: 8th Cir.