65 P.2d 553 | Kan. | 1937
Lead Opinion
This is another damage suit for the pollution of a stream caused by salt water and noxious refuse from an oil field.
Defendants are corporations which during the past twenty years have developed a considerable oil field bordering on Turkey creek and its tributaries in Butler county.
Plaintiffs are the owners of a farm which they inherited from their father, who died in 1931.. It is situated on Turkey creek' downstream from defendants’ oil field, from which salt water, oil and noxious refuse have found their way into Turkey creek and its tributaries. In seasons of plenty of rainfall this discharge into the creek has done little or no damage, but in times of prolonged drought the water in the creek becomes unfit for domestic livestock to drink; poisonous and filthy sediment settles on the bottomland of the farm; and numbers of trees have been killed by the salt water and other harmful substances coming from defendant’s oil wells. By these causes the value of the farm itself has been depleted.
This action was begun on September 26, 1934. Plaintiffs alleged the material facts. Defendants’ answer contained a general denial and pleaded the statute of limitations.
The cause was tried before a jury on evidence adduced by the parties, together with a formal stipulation of facts which may re-, quire notice as we proceed.
Defendants’ demurrer to the evidence was overruled; likewise their motion for a directed verdict.
The jury returned a general verdict for plaintiffs in the sum of $3,500, and answered special questions, some of which read:
“1. When was the first oil well completed upstream from the plaintiffs’ land? A. 1917.
“2. Approximately how many oil wells had been completed upstream from the plaintiffs’ land by January 1, 1930? A. 63.
“3. Were any oil wells drilled upstream from plaintiffs’ land after January 1, 1930? A. No.
“4. Has oil, salt water or other refuse escaped, to some extent, from each of said wells at all times after its completion into the waters of Turkey creek or its tributaries? A. Yes.
“6. Did the plaintiffs, or any of them, at any time prior to the death of their father [in 1931], see any oil or other pollutive matter in Turkey creek on the land in question in sufficient quantities to mark the banks of the stream and the vegetation growing thereon? A. Yes.
*218 “6. At all times since Turkey creek on plaintiffs’ land has been to any extent polluted has the degree of such pollution been affected by seasonal conditions, as rainfall or lack of rainfall? A. Yes.
“7. What, if any, change has there been in the manner in which the defendants had handled the oil, salt water and other refuse from their said wells after January 1, 1930? A. Building salt-water ponds.
“9. If you find that plaintiffs’ land depreciated in value, what act or acts, if any, of these defendants, or either of them, caused such depreciation? A, By the act of letting pollution escape into Turkey creek.
‘TO. What, if any, refuse from defendants’ leases caused any damage to plaintiffs’ land in or after October, 1932, which had not been present, to some extent, in Turkey creek on plaintiffs’ land prior to said date? A. Salt water.
“11. When was the water in Turkey creek on the plaintiffs’ land first damaged to a substantial degree from oil wells upstream therefrom? A. October, 1932.”
The usual post-trial motions were filed and overruled. The trial court, with consent of plaintiffs, reduced the verdict to $2,800 and rendered judgment thereon.
Defendants appeal, contending chiefly that plaintiffs’ own evidence clearly proved that their cause of action was barred by the two years’ provision of the statute of limitations; and that the jury’s special findings 4, 5 and 6 foreclose all controversy on that point.
It was the theory of the trial court that the cause of action did not accrue when the pollution from defendants’ oil field first invaded Turkey creek and began to smear oil and other refuse over the bottomland of the Seglem farm; but that the cause of action arose only when the noxious materials began to cause “substantial” damage, which the jury found was in October, 1932 (Finding 11), and therefore this action, which was begun in September, 1934, was within the statutory time. •
The adjective “substantial” is a familiar and convenient word used to appraise the sufficiency of evidence to withstand a demurrer or to sustain a verdict, in contradistinction to evidence which is too insubstantial, too attenuated, too shadowy to be the basis of an adjudication on controverted facts in litigation. In 4 Words and Phrases, 2d, Sec. 750, the word is defined thus:
“ ‘Substantial’ means 'belonging to substance; actually existing; real; . . . not seeming or imaginary; not illusive; real; solid; true; veritable.’ (Elder v. State, 50 South. 370, 374, 162 Ala. 41, citing Webst. Int. Dict.)”
Under this definition of “substantial,” plaintiffs’ own evidence was clear and incontrovertible that long prior to 1932, before the death
“. . . A good many years ago I saw evidence of oil along the banks of the creek. Oil was on the water of the creek. It was before my father died. Long before he died. The creek was up and oil was coming down the creek. You could tell it was there, streaks of it. . . .1 observed oil coming down the creek several years before my father died. ... It has its origin in the oil field to the east. ... I had seen oil along the sides on the brush and edges of the bank after the creek had been up. I observed it several times before my father’s death. I noticed a streak of oil along the bank. It showed where there had been oil. This was about the time of my father’s death or maybe before.”
Another of plaintiffs testified:
“I have known at all times since the field came in above our place that if any pollutive matter would escape from those wells it would flow into Cave Springs creek and Turkey creek and through our farm. It couldn’t go any place else. About 1921 when I first moved on the farm I noticed oil on the water. The water came up around the house and the barn and I had to fix some water gaps. While walking through the weeds oil would get on my trousers, and there was enough to get kinda nasty when I was around fixing the fence. I also observed the same condition on several occasions after 1921.”
This testimony and much more which appears in the record abundantly supports findings 4, 5 and 6, which indeed are not attacked by either of the parties. Can it be said on the face of this testimony and findings 4, 5 and 6 which were responsive thereto that plaintiffs’ father, as owner of this farm in his lifetime, could not have maintained exactly the same sort of action against these defendants for the pollution of Turkey creek and for consequent damage to his farm? It is not conceivable that any court would have denied him legal redress on the facts as adduced by plaintiffs and as found by the jury in this action. But by the same token it becomes apparent that the damage to the Seglem farm occurred more than two years prior to the bringing of this action. The fact that the damage to the farm may have been greater since 1932 on account of the unusual drought of that year, which decreased the average flow of water in the creek and consequently increased the relative percentage of salt water, oil and refuse in the stream is not a sound basis for a ruling that there was no “substantial” damage, no “real,” no “actually existent” damage caused by defendants prior to that date.
A careful examination of the other special findings of the jury and the evidence pertaining to them takes nothing from the legal effect which must be given to findings 4, 5 and 6. Thus, finding 7 says that since January 1, 1930, defendants’ former method of handling oil, salt water and refuse from their oil wells has been changed, and that since 1930 the method has been “building salt-water ponds.” Given its fair significance this finding indicates no actionable wrongdoing. And if it did, and has been going on since 1930, it would be barred as a cause of action prior to September, 1934, when this action was begun.
Noting next the finding No. 9, the depreciation in value of plaintiffs’ land is specifically stated to have been the result of defendants’ “act of letting pollution escape into Turkey creek.” There was no evidence that letting the escape of such pollution was greater at any time after September, 1932, than it had been prior to that time; and indeed the fair significance of finding No. 7 compels the conclusion that it must have been less. The same observation must be made in respect to the answer to question 10:
“10. What, if any, refuse from defendants’ leases caused any damage to plaintiffs’ land in or after October, 1932, which had not been present, to some extent, in Turkey creek on plaintiffs’ land prior to said date? A. Salt water.”
This answer seems to be at variance with finding No. 7; but in any event the answer is either contrary to the evidence or altogether uncandid. Salt water had been present in Turkey creek prior to October, 1932, and the fact sought to be elicited by the question was that refuse was present in the creek afterwards which had not been present, to some extent, before that date.
At the onset we took note that this cause was tried in part on a stipulation of counsel. A somewhat surprising statement appears in appellees’ brief. It is said:
“Appellees deny that-they entered into any stipulation in this case. There was a stipulation in the Fulmer case, and an attempt made by the appellants*221 to have the attorney for appellees to stipulate in this case, but he refused to do so, and called the court’s attention to the fact that he would not stipulate in this case.”
On the contrary, the stipulation not only appears to the extent of five pages in the record, but in the instructions to-the jury the substance of the stipulation was included without objection of plaintiffs. It reads:
“3. The defendants have each admitted by the stipulation read to you that they now and for several years last past, as set forth in said stipulation, have owned one or more oil leases in the watershed drained by Turkey creek and its tributaries; that they are now and for several years last past have been operating said oil leases and producing oil therefrom. They also admit that some oil and some salt water have escaped from their wells, tanks, ponds and pipe lines onto the surface of the ground included in their leases.”
In their brief appellees urge this court to follow the early case of K. P. Rly. Co. v. Mihlman, 17 Kan. 224, “which has never been departed from until the Fulmer opinion [Fulmer v. Skelly Oil Co., supra] attempted to change the law.” We cannot concede that the later cases of this court cited in this opinion have taken anything from the potency of the Mihlman case. The remark of counsel that this court’s opinion in the Fulmer case “attempted to change the law” was unlawyerlike to say the least, no matter how strongly counsel may disagree with the court’s decision. In the oral argument counsel admitted that his hope of sustaining this judgment was measurably predicated on the overruling of the Fulmer case. In our view many well-considered precedents of this court besides the Fulmer case would have to be overruled, and particularly those cited in this opinion, before this judgment could be permitted to stand. It should not be overlooked that this was an action for permanent damages to the farm, not for recurring damages, nor for the abatement of a recurring or continuing nuisance.
The judgment is reversed and the cause remanded with instructions to enter judgment for defendants.
Dissenting Opinion
(dissenting): Appellants no longer contend plaintiffs are not damaged in the amount of the judgment rendered in this case by salt water and other oil-well waste which they permitted to escape from their oil-well operations. The sole contention here is that plaintiffs did not bring their action in time. They say the action should have been brought when the oil-well operations began