Summary
refusing punitive damages where evidence showed that steps were taken to alleviate problem after defendant received complaints
Summary of this case from Leaf River Forest Products v. FergusonOpinion
No. 43238.
December 7, 1964.
1. Minerals — drilling operations — objectionable drainage — damages.
Where evidence showed that though oil well driller's operations on adjacent property did cause damage to landowners' property, fact that greater part of damage grew out of the breaking of a dam around a slush pit, which occurred after driller had left the site, and while being completed by another contractor, and that damage caused by driller was not clearly pointed out, required reversal of verdict for landowners.
2. Minerals — drilling operations — objectionable drainage — punitive damages.
Evidence that driller's manager, in response to landowners' complaints, promised he would stop objectionable drainage and he did so attempt, to no avail, precluded award of punitive damages to landowners.
3. Release — damages — extent of release.
Release, given to driller by landowner, which recited that it was for damages caused several months prior to actions giving rise to present suit, did not apply to damages caused by later drillings, but landowner could not, in present suit, recover damages he had released by the instrument.
Headnotes as revised by Lee, C.J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, J.
Watkins Eager, Elizabeth Hulen, Jackson, for appellant.
I. The case presented by the evidence here is one of separate and distinct trespasses committed independently by different parties, each of whom could be held liable only for the damage it committed. The damage caused by appellant was damnum absque injuria; or in the alternative, the evidence did not offer adequate assistance to the jury in arriving at the amount of damages resulting from the acts of appellant, and therefore appellees are entitled to have no more than nominal damages.
A. Any injury done prior to July 12th, 1960, was damnum absque injuria in that appellant as an upper riparian owner was entitled to allow the natural wash and drainage of his lands to follow the slue or ravine into appellees' branch even though as an incident thereto the purity of the water was somewhat impaired. American Sand Gravel Co. v. Rushing, 183 Miss. 496, 184 So. 60; Board of Drainage Commissioners of Drainage District No. 10 of Bolivar County v. Board of Drainage Commissioners of Washington County, 130 Miss. 764, 95 So. 75; City of Cape Girardeau v. Hunze (Mo.), 248 S.W. 471; Kennebunk, etc. v. Maine Turnpike Authority (Maine), 71 A.2d 520; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295; Pennsylvania Coal Co. v. Sanderson, 6 A. 453; 56 Am. Jur., Waters, Secs. 405, 405; 93 C.J.S., Waters, 692-3.
B. Even if there is some liability upon the part of the appellant for slight damage done prior to July 12, 1960, the evidence did not offer adequate assistance to the jury in arriving at the amount of damages resulting from the acts of appellant as distinguished from those of other parties occurring after July 12th, 1960, and therefore appellees are entitled to have no more than nominal damage. Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343; Central Oil Co. v. Shows, 246 Miss. 300, 149 So.2d 306; King v. Ruth, 136 Miss. 377, 101 So. 500; McCain v. Wade, 181 Miss. 664, 180 So. 748; Magnolia Petroleum Co. v. Williams, 222 Miss. 538, 76 So.2d 365; Masonite Corp. v. Steede, 198 Miss. 530, 23 So.2d 756; Morrow v. Barron Motor Co., 229 Miss. 51, 90 So.2d 20.
II. The damages assessed by the jury were so excessive as to evince prejudice and passion on the part of the jury; and appellees, having failed to prove more than nominal pecuniary damages to their land by competent evidence, are entitled to recover only the sums of $42.73 for appellee Shows, and $51.60 for appellee Jones together with nominal damage. Central Oil Co. v. Shows, supra; City of Oxford v. Spears, 228 Miss. 433, 87 So.2d 914; Cooper Tire Rubber Co. v. Johnson Rug Cleaners, 234 Miss. 432, 106 So.2d 889; Ginther v. Long, 227 Miss. 885, 87 So.2d 286; Gulf Refining Co. v. Davis, 224 Miss. 464, 80 So.2d 467; Mississippi Mills v. Smith, 69 Miss. 299, 11 So. 26; Missouri Bag Co. v. Chemical Delinting Co., 214 Miss. 13, 58 So.2d 71; Morrow v. Barron Motor Co., supra; Oregon-Washington, etc. v. Reed (Ore.), 170 P. 300; Parker v. Harris Pine Mills (Ore.), 291 P.2d 709; Shaw v. Owen, 229 Miss. 126, 90 So.2d 179; Sloss-Sheffield Steel Iron Co. v. Mitchell (Ala.), 49 So. 851; Southern Wholesalers v. Stennis Drug Co., 214 Miss. 461, 59 So.2d 78; Southland Co. v. Aaron, 221 Miss. 59, 72 So.2d 161; Waggener v. Leggett, 246 Miss. 505, 150 So.2d 529; 25 C.J.S., Damages, Secs. 466, 788; 87 C.J.S., Trespass, 1073; 93 C.J.S., Waters, 787.
III. In the alternative, the jury was not properly instructed on the measure of damages and were erroneously informed that it could award punitive damages. Allen v. Melton (Tenn.), 99 S.W.2d 219; Anderson v. Alcus (Texas), 42 S.W.2d 294; Booth v. Peoples Finance (Cal.), 12 P.2d 50; Broadhead v. Gatlin, 243 Miss. 386, 137 So.2d 909; Crowell v. Collier Publishing Co. (C.A. 5), 170 F.2d 941; Ennis v. Brawley (W. Va.), 41 S.E.2d 680; First National Bank v. Kansas Grain Co. (Kan.), 55 P. 277; Ginther v. Long, supra; Gordon v. McLearn (Ark.), 185 S.W. 803; Gregory v. Sorenson (Iowa), 242 N.W. 91; Greyhound Corp. v. Townsend, 234 Miss. 839, 108 So.2d 208; Laurel Equipment Co. v. Matthews, 218 Miss. 718, 67 So.2d 258; Louisville, etc. R. Co. v. Ritchel (Ky.), 147 S.W. 411; McCain v. Cochran, 153 Miss. 237, 120 So. 823; McCoy v. Price (W. Va.), 112 S.E. 186; Martel v. Hall Oil Co. (Wyo.), 253 P. 862; Meadows v. First National Bank (Texas), 149 S.W.2d 591; Mitchell v. Randal (Pa.), 137 A. 171; Pendleton v. Norfolk, etc. R. Co., 95 S.E. 944; Powell v. Meiers (N.D.), 209 N.W. 547; Raines v. Faulkner (W. Va.), 48 S.E.2d 393; Roggensack v. Winona Monument Co. (Iowa), 233 N.W. 493; Shore v. Shore (Kan.), 205 P. 1027; Thompson v. Mutual Benefit (D.C. Iowa), 83 F. Supp. 656; Yazoo M.V.R. Co. v. Mullen, 158 Miss. 774, 131 So. 101; 15 Am. Jur., Damages, Secs. 270, 271.
IV. Appellant was entitled to a peremptory instruction against appellee F.S. Jones, having obtained a full release. State Highway Comm. v. McClendon, 212 Miss. 18, 53 So.2d 35.
George B. Grubbs, George G. Williamson, Mendenhall, for appellees.
I. The case presented is one of distinct trespass committed by the appellant as shown by the evidence, and all other evidence submitted thereon is a question for the jury which has been properly resolved by the jury. The jury was presented evidence sufficient to arrive at the proper amount of damages occasioned from the acts of the appellant. Board of Drainage Commissioners of Drainage District No. 10 of Bolivar County v. Board of Drainage of Washington County, 130 Miss. 764, 95 So. 75; Broadhead v. Gatlin, 243 Miss. 386, 137 So.2d 909; Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952, 60 A.L.R. 475; Masonite Corp. v. Windham, 210 Miss. 90, 48 So.2d 622; Noonan v. Albany, 79 N.Y. 470, 35 Am. Rep. 540; 15 Am. Jur., Damages, Sec. 109.
II. The damages assessed by the jury are not excessive as to evince prejudice and passion on the part of the jury. Broadhead v. Gatlin, supra; Central Oil Co. v. Shows, 246 Miss. 300, 149 So. 306; Ginther v. Long, 227 Miss. 885, 87 So.2d 286; Gulf Refining Co. v. Davis, 224 Miss. 464, 80 So.2d 467; 15 Am. Jur., Damages, Sec. 109; 56 Am. Jur., Waters, Sec. 422 p. 841.
III. The jury was properly instructed on the measure of damages both actual and punitive. Ginther v. Long, supra; Masonite Corp. v. Windham, supra.
IV. The appellant was not entitled to a peremptory instruction against the appellee F.S. Jones, on the basis of having a prior release. L. A. Construction Co. v. Hube, 241 Miss. 710, 133 So.2d 394; Robertson v. New Orleans G.N.R. Co., 158 Miss. 24, 129 So. 100; State Highway Comm. v. McClendon, 212 Miss. 18, 53 So.2d 35; Yazoo M.V.R. Co. v. Smith, 90 Miss. 44, 43 So. 611; 45 Am. Jur., Releases, Secs. 27, 31.
F.S. Jones owned the surface rights of NW 1/4 of NE 1/4 and NE 1/4 of NW 1/4, Section 27, Township 2, Range 5 East in Simpson County, Mississippi. A.L. Shows owned SW 1/4 of NE 1/4 of said section, township and range, immediately south of Jones' first described forty, with a branch as the recognized line between them. Jones was a son-in-law of Shows. These two parties filed separate suits against Jett Drilling Company, Inc., a Texas corporation, to recover damages, both actual and punitive, to their lands as a result of the alleged negligence of the defendant in and about drilling operations to recover oil and gas on the lands of L.R. Shows, on the SE 1/4 of NE 1/4 of the above described section, immediately to the east of A.L. Shows' land.
The defendant, in its answer to the declaration of Jones, denied the material allegations thereof. It set up that it was drilling the well for the owner of the leases, had completed its work, and was not responsible for any damage that might have accrued subsequent to the completion of its work. Besides, it alleged that Jones, for a valuable consideration, had fully released it from all damages whatever that he had sustained from the defendant's negligence, if any. Besides, it averred that its acts were the natural result of a prudent operation.
In its answer to the declaration of Shows, the defendant also denied all material allegations, and set up the same averments as had been made in the Jones answer, except that it did not claim a release.
The cases were, by agreement, consolidated and tried together with separate instructions, separate verdicts for plaintiffs, and separate judgments.
The evidence for Jones was to the effect that after the defendant began drilling this well, he noticed that the drainage, wash, etc., from the rig was coming down the branch, on his land. This was occasioned because the well was being drilled in the northwest corner of that property, about 300 feet from the common corner of the lands of L.R. Shows, A.L. Shows and himself; that there were two ever-producing springs at the head of the branch a short distance from the common corner above mentioned, on the recognized line between him and his father-in-law; that the springs were being polluted from these washes; that he and Farley Shows, his brother-in-law, went to the drilling site and informed the manager of Jett about what was happening, and that the manager said that he would do his best to "kill it off". However, several days later Jones went back and found that the flow was still coming. About the time that Jett was finishing the drilling, the dam around the pit broke, and all of the slush, filth and mud from the pit spilled out and ran down the drain over his eighty acres and the forty acres of A.L. Shows, doing much damage. While the evidence was that Jett was still drilling when this dam broke, both he and Farley Shows admitted that only a part of its rig was on the drill site at the time. The evidence was to the effect that the two springs have not afforded any water within the last three years, damaging the value of the lands, which were used for cattle grazing. There was evidence of blue mud and chemicals from the slush pit for one-half of a mile. The timber on both sides of this strip, which averages about 60 feet wide, was all practically destroyed.
The evidence of Farley Shows was to the same effect and covered damages to both the A.L. Shows and F.S. Jones lands and gave more details concerning the alleged damages. It was conceded that most of the damage was caused by the breaking of the dam.
Three witnesses, Roy Upton, in charge of Jett's drilling operations, Roy Boggs, superintendent thereof, and G.W. Edison, an employee of Central Oil Company, testified to the effect that the well was being drilled for Southern States Oil Company to a depth of about 13,000 feet; that Jett began its operation on June 1, 1960; that it finished its part of the operation and was released on July 9, 1960; that the rig was moved from the drill site on July 12, 1960; that another drilling machine, operated by another company, was moved upon the site to complete the work; that several weeks later, there was a big rain, and the dam of the pit broke; and that Jett had long since taken its departure.
Practically all elements of damages were in dispute.
(Hn 1) Jett Drilling Company, Inc., was the only defendant. The alleged owner, for whom the well was being drilled, was not made a defendant. Neither was the other contractor, who allegedly completed the well, joined as such. While the evidence for the appellees tended to show that Jett did some damage, the evidence further showed that the greater part of the damage grew out of the breaking of the dam around the slush pit. Besides, the evidence was also conclusive that Jett Drilling Company had already left the site when the dam broke. In other words, there is no basis upon which this Court can say that the amounts of these verdicts for the appellees can be sustained. Besides, the damage, caused by Jett, is not pointed out clearly enough to justify the Court in a conditional affirmance, provided that remittiturs should be accepted. The case must, therefore, be reversed and remanded for a new trial.
It is necessary to call attention to two matters, as they are apt to recur in another trial:
(Hn 2) (a) Punitive damages. There was evidence from two witnesses of the plaintiff that they went to the manager of Jett and told him about the flow immediately after the drilling had begun; and that he promised to stop this flow, but several days later, when they again inspected the drain, the drainage was continuing. The manager admitted that he received this complaint; that he made a change in operation which he thought would redress this grievance; and that he thought this had been accomplished. Under these circumstances, the Court is of the opinion that The Greyhound Corp. v. Townsend, 234 Miss. 839, 108 So.2d 208 (1959), and Laurel Equipment Co. v. Matthews, 218 Miss. 718, 67 So.2d 258 (1953), and the authorities there cited, preclude the award of punitive damages under the facts shown in this record. Since the owner of the well was not a defendant, the principles applicable in Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770 (1944) are not invocable.
(Hn 3) (b) The defendant offered in evidence a release, which it and others, for value, obtained from Jones on account of damage which the offending parties caused to him by the drilling of another well on the lands of A.L. Shows, on the forty acres adjacent to the Jones land on the east. But this alleged damage was caused in 1959, long before the occurrence of the circumstances in his present suit. That release recited that it was in settlement of damages for an incident which occurred on December 12, 1959. It did not, therefore, bar any damage from the drilling of the L.R. Shows well. L A Contracting Co. v. Hube, 241 Miss. 710, 133 So.2d 394 (1961), and authorities there cited. Cf. Yazoo M.R. Co. v. Smith, 43 So. 611 (1907). However, Jones cannot again, in the present suit, recover for any damage which he has released by that instrument.
It follows, therefore, that this cause must be reversed and remanded for a new trial.
Reversed and remanded.
Ethridge, Gillespie, McElroy and Brady, JJ., concur.