105 P.2d 230 | Okla. | 1940
The defendants in error, as plaintiffs, commenced this action on July 10, 1937, against the plaintiffs in error and others, as defendants, for the recovery of damages from alleged injuries to their farm by reason of said defendants' pollution of Black Bear creek, which traverses same.
The parties will hereinafter be referred to as they appeared in the trial court.
The only actual damages that the plaintiffs alleged was the sum of $7,680, of which $7,500 was for the depreciation in the value of said farm as of January, 1935, by the subsequent diminution of its "pasture value" and the injury of certain growing timber thereon. The other item of $180 was alleged to represent the extent to which two of the plaintiffs' milch cows had depreciated in value from drinking the polluted water. *638
The jury awarded plaintiffs damages in the sum of $1,700, and the court entered judgment in accordance therewith.
In their appeal from said judgment, the defendants take the position that the trial court erred in overruling the demurrers to the evidence and motions for a directed verdict they interposed at the trial because of the absence of any competent evidence showing that the alleged pollution caused the death of plaintiffs' timber and injuries to their cattle and for the further reason that their alleged cause of action is barred by the statute of limitations.
It is conceded by the defendants that Black Bear creek was permanently polluted in the year 1925, and they do not deny their responsibility for the presence of salt water in the stream in the year 1937, but it seems to be their contention that there is no evidence that the condition of said creek changed during the two-year period preceding the latter date in such a manner as to inflict injuries plaintiffs claim to have suffered during said period.
Neither of the propositions formulated by defense counsel directly controverts the plaintiffs' claim that the pasturage value of their farm was depreciated during the period in question, but our attention is directed to portions of the testimony which tend to prove that the stream was polluted in 1935 as it had been in former years. If it were true that the water in said stream was unfit for the watering of livestock in 1935, then, of course, proof merely that the same was true in 1937, would in no wise indicate that the value of plaintiffs' land had been permanently diminished on that account during the intervening period. However, not all of the testimony is in accord with that which defense counsel has pointed out. More than one of the witnesses who were interrogated concerning the condition of the stream during 1935 testified to the effect that by the first part of that year it had improved so that livestock could drink from it without injury, but that later the same year, the proportion of salt water in the stream increased so that this was no longer possible. While it is true that the only particular portions of the stream that said testimony concerned were farther away from the source of the pollution than the plaintiffs' farm, there is evidence tending to show that the condition of the water at those points was not peculiar to them or local, but existed generally along the course of the stream in the vicinity of said farm.
The increase in the proportion of salt water to fresh water in the stream might in a measure have been due to a decrease which the evidence shows in the amount of rainfall in its drainage basin, yet it could also have been the result of additional exploration for and production of oil and gas which the evidence shows occurred up the stream about the same time. However, since the defendants do not claim the evidence is insufficient to show that they were polluting the stream during the period in question, we deem it unnecessary to consider the evidence concerning the possible causes of its condition.
The plaintiff, Abe Kent, testified in substance that after the stream became polluted he was compelled to restrict the grazing of his cattle to a smaller area than formerly used, where they did not have access to the stream's injurious waters, and to thereafter make other arrangements for their drinking water, and ultimately to purchase it. From this and other evidence unnecessary here to mention, there is no doubt that plaintiffs' farm was rendered less suitable and valuable for the raising of livestock during the two-year period in question than it had been immediately prior thereto. For this reason it is unnecessary to consider whether the evidence sufficiently establishes that the polluted condition of the stream further reduced the value of said farm by killing the trees described in plaintiffs' petition or was the source of injury to the cattle also mentioned therein. If such evidence was entirely absent from the proof presented, this would not preclude the *639
plaintiffs from recovering the damages they sustained from the other injury which they alleged. The question before the trial court in ruling upon the defendants' demurrers to the evidence and motions for a general verdict in their favor was not whether the evidence sustained the plaintiffs' right to recover damages for all the injuries alleged, but was whether it sustained this right with reference to any of such injuries. See Hamilton v. Brown,
The remainder of the defendants' argument is advanced in support of the contention that plaintiffs' injuries from the pollution of Black Bear creek commenced in the year 1925 and were obvious to them more than two years prior to the commencement of this action, and consequently their recovery of damages therefor is barred by the statute of limitations operative in such cases.
As a preface to this argument, counsel call our attention to the cases of Sinclair v. Allen,
In connection with portions of the evidence tending to prove that Black Bear creek was injurious to plant and animal life long before July, 1935, defense counsel also call our attention to the allegation in plaintiffs' petition that a portion of the timber described therein began to die in the "spring" of 1935. These portions of the record are made the basis for the argument that the injuries claimed by the plaintiffs were obvious more than two years before the filing of this action and hence under the rule followed in Richards v. Flight,
As we have found no cause for reversal in either of the specifications of error urged by the defendants, the judgment of the trial court is hereby affirmed.
BAYLESS, C. J., WELCH, V. C. J., and HURST and DANNER, JJ., concur. *641