Summary
In General Geophysical Company v. Brown, 38 So.2d 703, this Court spoke in no uncertain terms as to the injuries sustained due to destruction of water wells.
Summary of this case from Mississippi Butane Gas System v. WelchOpinion
February 14, 1949.
1. Trial — issue upon conflicting evidence — jury.
The question whether the defendant in making geophysical explorations by the use of dynamite came wilfully within an area near the water well and residence which had been excluded from the permission granted by the landowner, and which, if true, would render the defendant a trespasser ab initio, is properly submitted to the jury when the evidence is substantially conflicting.
2. Damages — destruction water well — the before and after rule applicable.
In an action for the destruction of a water well by dynamite explosions in making tests for oil and gas with the further result that plaintiff had been unable to obtain an adequate new well owing to the physical conditions caused by the explosions, the before and after rule as to value is properly applied in the assessment of damages for the permanent injury to the farm.
3. Trespass — care in manner of committing immaterial as to compensatory damages.
In an action for the destruction of a water well by dynamite explosions in making tests for oil and gas, which according to plaintiff's version, sustained by substantial evidence and so adjudged by the jury, was within an area near the water well and residence which had been excluded from the permission granted by the landowner, the fact that the tests were conducted without negligence and according to approved rules is immaterial when, as found by the jury, the defendant was a trespasser.
4. Pleadings — unnecessary averments — failure to prove — effect of.
When he has pleaded and proved facts sufficient to establish liability against the defendant, the plaintiff is not to be denied recovery because he failed to prove other and further facts alleged in his declaration.
5. Damages — proximate cause — proof as to reasonable probability.
When it is shown that, immediately following the explosion of dynamite at a depth of 120 feet and within 550 feet of water well, the water became muddy and that immediately following the second explosion at the same point the water again became muddy and so remained and that when a new well was bored the water has at all times been inadequate, supplemented by the testimony of a well borer of twenty nine years experience in that vicinity that he had not been able to obtain an adequate well in that area since the explosions whereas he had never had any difficulty before, the testimony is sufficient to establish as a reasonable probability that the explosions were the proximate cause of the damage.
6. Verdict — not excessive.
A verdict for $1,000 for the destruction, so far as adequate uses were concerned, of the water wells on a seventy acre homestead farm, there being included in the amount the expense of $225.00 in boring a new well in the unsuccessful attempt to remedy the situation, and the inconvenience of having had to obtain water from a neighbor three quarters of a mile away, is not excessive.
7. Instruction — amount of damages.
An instruction that if their verdict is for the plaintiff, the jury should assess the damages "in an amount reasonable to compensate him not to exceed the sum sued for, namely $1,500" will not require a reversal because of the mention of $1,500, inasmuch as verdict was $500 less than amount mentioned and was not excessive as rendered.
Headnotes as revised by McGehee, C.J.
APPEAL from the circuit court of Simpson County; HOMER CURRIE, J.
Jackson, Young, Daniel Mitchell, for appellant.
Appellee's declaration is predicated upon "the careless, wanton, reckless and gross negligence of defendant company" in the conduct of its geophysical explorations on appellee's land, with the consequent alleged destruction of appellee's water well; for this appellee sought Fifteen Hundred Dollars ($1,500.00) in damages. All of appellee's instructions are drafted along the lines of presenting to the jury the question of the negligence of appellant. Appellee's Instruction No. 1 provides that the jury must find that appellant "recklessly and negligently" shot or caused to be shot an explosive. Appellee's Instruction No. 2 provides that the jury must believe that the appellant "recklessly and negligently" shot an explosive which caused damage to appellee's water well. The only other instruction given for appellee was a form of verdict instruction. The theory upon which appellee's case was tried and submitted to the jury was upon the ground that appellant negligently conducted its geophysical operations on appellee's land. And yet, there is not one iota of evidence in the entire record to show any negligence on the part of appellant, its agents, servants, or employees. There is no evidence that the charge used was greater than the minimum amount with which readable results could be obtained. There is no evidence that the depth used was other than the optimum depth at which readable results could be obtained. There is no evidence that appellant failed to use reasonable care in the location of its shot — point with relation to the location of appellee's water well. See Indian Territory Illuminating Oil Company v. Rainwater (Tex.) 140 S.W.2d 491; Uvalde Construction Company v. Hill, (Tex.) 175 S.W.2d 247; LeBleu v. Shell Petroleum Corp. (La.) 161 So. 214; Benefiel v. Pure Oil Company, 322 Ill. App. 57, 53 N.E.2d 726.
Based on the cases shown above, it is apparent that appellee has shown absolutely no negligence on the part of the appellant in conducting its geophysical explorations. In the absence of such showing of negligence, it is also apparent that there can be no recovery by appellee. None of appellee's witnesses testified to any facts which can be construed in any way, shape, form or fashion as negligence, nor do they attempt to do so. In the absence of negligence, there can be no recovery. Conversely, each of appellant's witnesses testified that the operations were conducted in accordance with reasonable standards — that the charge used was the smallest with which readable results could be obtained, that the depth used was the only reasonable depth at which readable results could be obtained, and that the shot-points were located with reference to the readability of results and the protection of property in the vicinity. Since appellee shows no negligence on the part of appellant, does the doctrine of res ipsa loquitur apply? This question has been answered in the negative in Carter v. Simmons (Tex.) 178 S.W.2d 743.
Appellee has shown no better or different way which could have been followed in conducting these operations. His evidence discloses no depth, size or other change which would have altered the situation — he has utterly failed to sustain the burden of proof, for which the judgment must be reversed. Viele v. Mack Paving Constr. Co., 144 App. Div. 694, 129 N.Y. St. 604.
In order to support a verdict in his favor, appellee must show by a preponderance of the evidence each element of the offense charged — in this case appellee must have shown by a preponderance of the evidence that the appellant was negligent in conducting its geophysical explorations. The verdict of the jury cannot be based on surmise, guess and conjceture, but must be based on and supported by substantial and believable evidence. Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Mutual Benefit Health and Accident Ass'n. v. Johnson (Miss.), 186 So. 297; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Missouri Pacific Transportation Co. v. Beard, 179 Miss. 450, 176 So. 156. Where is such evidence in this case? The scintilla of evidence rule is not recognized in Mississippi. Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80. Viewing the evidence of the appellee in the light most favorable to him, he has failed completely to meet the minimum requirements of legal proof necessary to sustain a recovery in his favor.
As pointed out in Point I of this brief, negligence must be shown in order to sustain a recovery. When all of the testimony introduced by appellee is examined in the light most favorable to him, it is immediately seen that there is not one iota of testimony supporting allegations of negligence. Appellee's testimony is directed solely to the alleged damage to his water well, and not to any negligence on the part of appellant's agents, servants, or employees.
On the base of this record, there is no evidence to sustain the verdict of the jury and the verdict of the jury is therefore contrary to the overwhelming weight of the evidence. In Holland House Company v. Baird, 169 N.Y. 136, 62 N.E. 149, where the evidence was held insufficient to show negligence in blasting which caused damage to the plaintiff's property, the court said: "That a vibration of the earth, or of the atmosphere, is the invariable accompaniment of an explosion, is a fact of universal observation or knowledge, and to make that a source of liability which may be an ordinary result of a lawful work requires that it shall be made to appear that the explosion was unnecessarily violent and carelessly prepared for, having regard to the place and the surroundings. The failure on the part of a defendant to observe some duty of care or precaution owing to the plaintiff, general or specific, will constitute negligence, and will give rise to a cause of action for resultant injury; but it should be established by the evidence, directly, or upon clear inferences from the facts. It cannot rest upon a conjecture simply."
The issue of liability was submitted to the jury solely on the basis of negligence of the appellant, its agents, servants and employees. There is no evidence to sustain the finding of the jury that appellant was negligent in the conduct of its geophysical operations. Verdicts cannot stand which are based purely on conjecture ad surmise. In order for the verdict of the jury to stand, it must be supported by competent, believable evidence of negligence in the conduct of these operations — such competent, believable evidence is not present in this record. Therefore, the verdict of the jury was against the overwhelming weight of the evidence and the trial court erred in not granting a new trial for this reason; for this error the judgment of the trial court should be reversed and the case remanded for a new trial.
Appellee was given three instructions. These instructions (excluding his "Form of Verdict" instructions) are as follows: "The court instructs the jury for the plaintiff, that, if you believe from the preponderance of the evidence in this case, that the defendant, General Geophysical Company, did enter upon the land of the plaintiff, Newton L. Brown, and recklessly and negligently shoot or cause to be shot an explosive, the results of which caused damage to the said plaintiff, Newton L. Brown, then you, and it is your duty to find for the plaintiff, Newton L. Brown, in an amount reasonable to compensate him, the said Newton L. Brown, for damages sustained by him in an amount not to exceed sued for in declaration, namely; one thousand dollars.
The court further instructs the jury for the plaintiff, Newton L. Brown, that, if you believe, from the preponderance of the evidence in this case that the General Geophysical Company, did enter upon the land of the plaintiff, and recklessly and negligently shoot an explosion which caused damage to the said Newton L. Brown, in the destruction of his water well, then it is your sworn duty to assess the amount of the damages that you believe from the evidence that will reasonable compensate him for such damages."
Both of appellee's instructions quoted above entirely pretermit the major question of whether appellant had permission to do the acts complained of; this issue constituted one of the principal issues in the case. The giving of these instructions, without an instruction requiring the jury to find that appellant exceeded its license, virtually amounted to peremptory instructions for the jury to find for the appellee. According to these instructions, all that the jury was required to find in order to impose liability against appellant was that appellant shot an explosive "recklessly and negligently", and that appellee was thereby damaged. The issue of whether appellee had given permission for these acts to be done, or had ratified the permission given by his wife, was one on which the jury should have passed, but which was completely removed from their consideration by the two instructions quoted above, given for appellee. The appellant contended that it had and it offered evidence to show a permission to do the acts which were done. By pretermitting this question, appellee removed one of the principal requirements before recovery could be sustained in his favor, and these instructions were thus fatally defective.
In addition to the foregoing, appellee's instructions failed to give to the jury a yard-stick or standard for the proper determination of damages allowable under the facts of this case. Appellee's instructions simply tell the jury to fix the damages at such amount as will reasonably compensate appellee, and the only limitation placed thereon is that such damages will not exceed the amount sued for in the declaration. These instructions permit the jury to completely abandon all proper evidence on the question of damages, and to fix any figure which they see fit up to the amount sued for, to-wit, fifteen hundered dollars, ($1,500.00). This pratice has been condemned in case after case in this court. Bounds, et al v. Watts, 159 Miss. 307, 131 So. 804; Yazoo M.V.R. Co. v. Smith, 82 Miss. 656, 35 So. 168; Gulfport Mississippi Coast Traction Co. v. Keebler, 130 Miss. 631, 94 So. 795; Dixie Yard v. Ferguson, 192 Miss. 166, 4 So.2d 724; Boston Insurance Co. Wade, (Miss.) 35 So.2d 523.
The instruction must furnish to the jury a proper guide with which to compute damages. Sears Roebuck Co. v. Creekmore, (Miss.) 23 So.2d 250; Greenwald v. Yazoo M.V.R. Co., 115 Miss. 598, 76 So. 557.
In his declaration appellee alleges that the appellant's negligent conduct of its geophysical operations "caused the water well to go completely dry . . . and that plaintiff has thereby been damaged in the total sum of fifteen hundred dollars ($1,500.00)". Appellee was permitted to testify, over the objection of appellant, that the value of his land, which was said by him to be worth between $3,00.00 and $4,000.00 before his alleged damages, was worth nothing at all. This testimony was admitted, over objection of appellant, in spite of the fact that appellee admitted that the value of his property was as much at the time of the trial as before appellant's activities, except that he had had to expend the sum of $225.00 to have a new well dug. In this connection, the testimony of appelle is as follows: "Q. Is your property worth as much as it was then, except you had to spend $225.00? A. If the well stands up, it is."
Appellee offered four elements of damage which he seeks to recover in this action. These are (1) alleged diminution in the value of his property before and after the claimed damage to his well; (2) expenses of $225.00 paid by appellee for a new well; (3) appellee's lost time in the amount of "approximately . . . a couple of hundred dollars; probably more" and "somewhere around $250.00 or $300.00"; and (4) appellee's wife lost time, which she, "just guessing at it", figures will be worth "$100.00".
In the first place, even if appellant is liable, the measure of damages is so highly speculative and uncertain as to provide the jury with no proper yard-stick with which to assess appellee's damages. Appellee sued for and demanded damages for alleged destruction of his well. His instructions encompass only the damages for alleged destruction of his well, and his declaration is directed only toward recovery of that item, yet he was permitted to testify to the diminution in the value of his land and thus highly prejudiced the jury, misleading them on the correct rule for the determination of damages, over the objection of appellant. Appellee's action was based on damages to his well, not diminution of the value of his farm. The evidence which the court thus admitted sustained a rule for the determination of damages which is not applicable to this case. The "before and after rule" was not intended for cases of this nature, and its application would result in the greatest injustice. Appellee himself admitted that the value of his property was as much at the time of the trial as before, execpt that he had had to expend the sum of $225.00 for a new well. Of course, appellee would not be entitled under any circumstances to damages for the diminution in value of his property, unless such diminution in value is permanent. Appellee's own testimony completely negatives this idea in this case.
Simple examples suffice to show the ineptness of the "Before and after rule". Suppose that one broke another's farm gate, thereby preventing ingress and egress from the property. Of course, the farm would be worth practically nothing without a means of ingress and agress. Could the rule of damages be said to be the difference in the value between the farm before the injury and its value after the injury, deprived of its means of ingress and egree? Surely not — the measure of damages would be the cost of replacement or repair to the gate, because replacement or repair would fully compensate the land-owner.
Secondly, the elements of damage on which testimony was presented were highly speculative and conjectural, and were so indefinite and vague as to prohibit proper determination of the amount by the jury. "Damages which are uncertain, contingent, or speculative in their nature cannot be made the basis of a recovery." 25 C.J.S. 489, Sec. 26. In State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277, citing Kress and Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167, the court stated: "Damages recovered in any case must be shown with reasonable certainty both as to their nature and in respect to the cause from which they proceed."
Grubbs Farmer, for appellee.
Appellee's farm was worth between $3,000.00 and $4,000.00 prior to this explosion and without water it wouldn't be of any value. With its present limited supply, two or three buckets at a time, witness, Jones, valued appellee's land prior to the explosion at $25.00 per acre, and now its present limited water supply, "it cut it just about half", i.e. $12.50 per acre. For this new well, appellee spent $225.00 for the purpose of trying to secure an adequate water supply for his home and farm use, which well only affords a limited supply of water. Appellee was permanently damaged in that the new well does not afford an adequate supply of water for the family use.
It is the contention of the appellant that, as a licensee of the appellee, having secured permission from Mrs. Brown, appellee's wife, its crew was lawfully upon the premises. And, therefore, not liable, unless its aces were negligent, for this tortious act. This is the main, if not the only point of law involved herein. We refer the court to the record that discloses that Mrs. Brown (appellee's wife) did mention staying a distance from the house, and, further to Mrs. Brown's own testimony of "staying away from the plum trees and not under the light line in the field". Appellant does not deny that the charges of explosives complained of was not set off "under the light line in the field" after these specific instructions, as above set forth, and the facts certainly reveal that the distance was not a safe one from appellee's well.
Appellant's Geophysical crew, in utter disregard of the specific instructions of the appellee's wife concerning the safe "distance from the house and well" and not shooting near the plum trees and light line, so abused this privilege granted by appellee's wife, in respects by shooting exactly where they had been warned and cautioned not to do so, and shooting at a distance, which as above stated certainly was not safe, until they became trespassers, ab initio, on the property of appellee and are therefore liable for their acts, regardless of negligence vel non.
As the facts in this case reveal, when appellant's geophysical crew exceeded the authority given to them by parol license of appellee's wife, in which they had been cautioned and specifically warned not to set off explosives a certain distance from the house and well, and not within a certain specified area of appellee's premises and they (appellant's crew) did what they had been cautioned not to do, they, then and there, became trespassers on the property of appellee.
This court in the case of Agnew v. Jones, 74 Miss. 247, 23 So. 25, stated as follows concerning trespassers: "What is a trespass? Every entry upon the land of another without lawful authority, is a trespass, though it only be trodden, and no matter whether the land be inclosed or not, and no matter whether any damage be done or not. The gist of the action is the wrongful entry. Whatever is done after that is but aggravation of damages. If a man's land be not inclosed, the law encircles it with an imaginary inclosure, to pass which is to break and enter his close. The mere action breaking through this imaginary boundary constitutes a cause of action, as being a violation of the right of property. 2 Wat. Trespass, pages 219, 220, 227, and 810, citing many cases; 26 Am. Eng. Enc. Law. p. 592.
Therefore, one who enters upon the land of another under the authority of parol license with specific instruction not to enter a specified area, and licensee enters the prohibited area, he is no longer a licensee, but a trespasser because of the "wrongful entry" without "lawful authority" and is therefore liable for any damage done by the tresspasser
"Trespass lies whether the injury to the plaintiff's possession is wilful or not, if the act which is injurious to the plaintiff is the immediate result of the force originally applied by the defendant." 52 Am. Jur., Sec. 12, p. 845.
Summers, Oil and Gas, Perm. Ed. Vol. 4, Sec. 661, pages 58 states in speaking of "Liability or operator for injury caused by geographical exploration".
"If the operator goes upon the lands of another without permission to explode such charge he is a trespasser and liable for all damages done to the land, person or personality resulting from the wrongful act." Cary Bros. Hannon v. Morrison, 8 Cir., 129 F. 177, 63 C.C.A. 267, 65 L.R.A. 659; Fitzsimons Connell Company v. Braun, 65 N.E. 249, 199 Ill. 390, 59 L.R.A. 421; Langhorne v. Turman, 133 S.W. 1008, 141 Ky. 809, 34 L.R.A. (N.S.) 211; Hickey v. McCabe Bihler, 75 A. 404, 30 R.I. 346, 27 L.R.A. (N.S.) 425, 19 Ann. Cas. 783.
"The courts hold that such a person is liable without any regard to the degree of care with which the work is carried on". Colton v. Onderdonk, 10 P. 395, 69 Cal. 155, 58 Am. Rep. 556; Munro v. Pacific Coast Dredging Reclamation Company, 24 P. 303, 84 Cal. 515, 18 Am. St. Rep. 248; Fitzsimons Connell Company v. Braun, supra; City of Chicago v. Murdock, 72 N.E. 46, 212 Ill. 9, 103 Am. St. Rep. 221; Longtin v. Persell, 76 P. 669, 30 Mont. 306, 65 L.R.A. 655, 104 Am. St. Rep. 723, 2 Ann. Cas. 198; Gossett v. Southern R. Company, 89 S.W. 737, 115 Tenn. 376, 1 L.R.A. (N.S.) 97, 112 Am. St. Rep. 846; Hickey v. McCabe Bihler, supra; City of Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408; Louden v. City of Cincinnati, 106 N.E. 970, 90 Ohio St. 144, L.R.A. 1915E, 356, Ann. Cas. 1916C, 1171; Patrick v. Smith, 134 P. 1076; 75 Wn. 407, 48 L.R.A. (N.S.) 740; Schade Brewing Company v. Chicago, M. P.S. Ry. Company, 79 Wn. 651, 140 P. 897; Watson v. Mississippi River Power Company, 156 N.W. 188, 174 Iowa 23, L.R.A. 1916 D, 101; Johnson v. Kansas City Terminal Ry. Company, 170 S.W. 456, 182 Mo. App. 349; City of Muskogee v. Hancock, 158 P. 622, 58 Okla. 1, LRA 1916 F, 897; Feinberg v. Wisconsin Granite Company, 224 N.W. 184, 54 S.D. 643.
In all of these cases the courts were engaged in a struggle to protect and preserve the property rights of neighboring landowners. It is sound social policy that one who seeks to improve his property should be protected in the exercise of his privileges of user of his land, but it is likewise sound policy that the person and property of neighboring owners should not be destroyed or injured by such user. Regardless of whether the appellee proved negligence vel non, the appellant as a trespasser is liable for the damages sustained by appellee.
The appellant's counsel predicates a reversal of this case upon the sole question of negligence, and cites many cases where the question of negligence was discussed at length.
On the land owned by the appellee there was located, and had been for many years, a well of an inexhaustible supply of water. On March 31, 1947, the appellant's crew set up a shot-point five hundred and fifty feet from appellee's well. A tremendous charge consisting of 30 pounds of "Atlas Petrogel No. 1 High Velocity 60 per cent Twistite dynamite" was set off, with the crew who was experienced in such work seeking shelter underneath the truck and running down the road. The well was completely ruined. The damage was recognized "immediately" thereafter, in fact, appellee's wife was on her way to draw a bucket of water. Res ipsa loquitur, obviously.
The case of Universal Atlas Cement Co. v. Oswalt, et al, 138 Tex. 159, 157 S.W.2d 636, is very much in point and similar to the case now before this court. Appellee in that case was damaged by explosion of appellee by two water wells being destroyed by certain blasts and other damages. The court discussed there, also, the doctrine of res ipsa loquitur, as well as the damages, etc., also, before this court.
Quoting from this famous Universal Atlas Cement Co. v. Oswalt et al case, on page 649 thereof, the Texas court continues: ". . . And there was evidence that before the blast plaintiff's two wells held water sufficient to furnish water for all home use and farm purposes. Both plaintiff, Joe Oswalt, and his son testified that they were at one of the wells when the blast went off, that the earth trembled, the trees shook and the water then within eight feet of the top of the wells rippled and shook. The next day the water was gone out of both wells and they have not held water since. And witnesses testified to finding cracks in the wells after the blast . . ." "The weight to be given this testimony was well as the credibility of the witnesses giving it were passed on by the trial jury. They established facts and circumstances and supported the inferences that the blast in question did crack the rock formation under plaintiff's farm, thereby draining his wells and releasing the subterranean waters. There was some evidence offered to support the trial court's judgment . . . and we cannot disturb their findings."
All of the above facts, as similar to those in the case at bar were passed upon by the trial court. According to the opinions of all appellant's witnesses the blast set off was not the cause of appellee's damage, but, of course, as above stated by the writer, and also in the Simmonds, et al v. St. L.B. M. Ry. Co., 91 S.W.2d 332, ". . . the jury in determining facts is not bound by opinions of witnesses".
Appellee testified that the value of his land was worth between $3,000.00, and $4,000.00, and without water it would not be worth anything. The record further reveals that appellee spent three days trying to restore the old well to its normal operations. Appellee was advised by the witness, Mike Woods, that "it would be cheaper to bore a new well than try to fix the old one". Even after the completion of the new well it affords only a limited supply of water, (two or three buckets at a time).
It is undisputed that the old well before the explosion served an abundant supply of water.
In Tupper, et al. v. Continental Oil Co., 73 F. Supp. 4, a Louisiana case decided in 1947 (September 12), that court had before it a case very, very similar to the one at bar, other than this was a mausoleum damaged instead of a well.
Appellee's wife without any "just guessing at it" places a value of fifty cents per hour for the time spent due to the inconvenience of their destroyed well and "I would not think it less than $100.00 at least". Therefore, from the above testimony which is in no respect speculative, conjectural, immaterial, irrelevant, which having been heard by the jury, this writer wonders why the verdict was limited to the sum found by the jury, namely $1,000.00. Sears, Roebuck Co. v. Creekmore, 23 So.2d 250, stated that: "In case of total and tortious destruction of a house by fire, the basis for computing damage to the owner is a comparison of the value of the whole property before and after the firc. 15 Am. Jur., Damages, Sec. 109, p. 517; 25 C.J.S., Damages, 85, p. 608. This is and should be the general rule. Admittedly cases arise in which other factors are found which must be taken into account. Conceivably the lot may be worth more without the structure than with it. See Kaw Feed Coal Co. v. Atchison T. S.F.R. Co., 120 Mo. App. 498, 107 S.W. 1034; Murphy v. City of Fond Du Lac, 23 Wis. 365, 99 Am. Sec. 181. Again the house may be an inconsequential item in the total valuation of a large tract on which it is located so that the value of the entire property is not substantially changed, yet there is damage in its loss. Some authorities attempt to value the house apart from the lot while others follow the more practical and safer rule to consider the house and lot, at least, where it is urban residence property, as an entity. It would not be helpful to enlarge our opinion with the authorities supporting these exceptional bases."
Therefore, in view of the above, wherein this court stated that the house was a part, and also, an important improvement to the land, is it not true that a well of water on a farm is just as essential to that farm as any other improvement? It is even a greater prerequisite that the very house located thereon, because all that is needed in order to erect a house is a foundation which all farms possess, but to deprive one of their water supply only to a limited amount, after using every method, and Mike Woods, appellee's witness, stated that had been done, is a damage of such permanent nature that certainly the "before and after" rule will apply.
This appeal is from a judgment for damages for the destruction of a water-well, by the use of explosives by reason of geophysical explorations, and for the loss of time in obtaining water elsewhere for use on the farm of plaintiff.
The appellant, General Geophysical Company, was engaged in making certain geophysical explorations for oil and gas in Simpson County, and particularly in the community where the appellee, Newton L. Brown, owned seventy acres of farm land on which he resided with his family. The appellant had previously located what is termed a "shot-point," a distance of 550 feet from the water-well and residence of the appellee and on his land, but without any express permission, either oral or written, from the owner to do so. The land had never been leased to anyone to be explored for oil and gas.
On March 31, 1947, the defendant had exploded a charge of dynamite at a depth of from 120 to 150 feet at the "shot-point" above mentioned, in connection with its use of a seismograph and galvanometer for readings as to the formations several thousand feet beneath the surface, and the explosion had caused the water-well of the appellee, which was a depth of 76 feet, to become muddy and to remain so for a period of three days thereafter, according to the testimony on behalf of the plaintiff.
It appears that within about three days after the water in the well had cleared up, the agents and employees of of the appellant, Geophysical Company, again went upon the land of the appellee and obtained from his wife a limited consent to again make geophysical explorations on the land. At that time, the appellee was on the farm doing some work in connection with his farming operations, and he observed the agents and employees of the appellant before they shot another charge of 30 pounds of dynamite at the depth aforesaid, and in the same hole, where this had been done on March 31, 1947. His explanation as to why he did not go to where they were and request that they not shoot this test well again is that he was afraid to go near where such an explosion was to take place.
Mrs. Brown testified that she consented for them to make geophysical tests on the land on the said 5th day of April, 1947, but that she based such consent upon the express condition that they not do so near the plum orchard where they had been before, which, according to the testimony on behalf of the plaintiff, was too near the water-well and residence; but that they exploded this second charge of dynamite at the very place where she had told them not to do so, using the same hole, as aforesaid, where the first charge of dynamite had been placed, and which had previously caused the water-well to become muddy, as aforesaid.
The only witness who testified on behalf of the appellant as to the extent of the permission which Mrs. Brown undertook to give did not expressly deny in particular her testimony as to the extent of consent given, but conceded that she "did mention staying a distance from the house and well." (Hn 1) At any rate, there was presented an issue for the jury as to whether or not the defendant had willfully violated the express terms of the limited consent given and had thereby become a trespasser ab initio.
The proof on behalf of the plaintiff further discloses that the supply of water in the well had been inexhaustible for many years before the explosion complained of, that the plaintiff had not been able to draw enough water therefrom to lower the depth of the water in the well to any appreciable extent for the reason that it would refill as fast as water was drawn therefrom until the explosion of this last charge of dynamite on the said 5th day of April, 1947; that immediately prior to the said explosion Mrs. Brown had drawn a bucket of clear water from the well, and that immediately thereafter she returned to the well for another bucket of water and found that it was very muddy and unfit for use; and that the water supply was released and disappeared to such an extent that the well was of no further use to the plaintiff, and she was amply corroborated by the plaintiff and other witnesses in that behalf. And from this date to July 9, 1947, the plaintiff had been unable to obtain another well, and in the meantime he and his wife had had to bring all of the water used on the farm from the well of a neighfor three-fourths of a mile away.
(Hn 2) It was further shown that the supply of water in the new well which was obtained at an expense of $225 on July 9, 1947, had at all times up to the date of the trial been inadequate to such an extent as to greatly reduce the value of the plaintiff's seventy-acre farm; and that the injury done by the act of the defendant is therefore a permanent injury to the realty, making applicable "The Before and After Rule as to Value," the measure of damages to the farm.
The declaration of the plaintiff alleged, among other things, that the defendant went upon the land of the plaintiff "and without authority did then and there negligently, carelessly, wantonly and recklessly shoot and cause to be shot a test well" and caused the damage complained of. But, it is contended by the appellant that the case was tried solely on the theory of negligence, and that there was no proof that the geophysical operations were not conducted according to approved methods and practices, and that the defendant would not be liable unless it was guilty of negligence in the manner and method of conducting such explorations. (Hn 3) We find that we are not able to agree with this contention for the reason that the declaration alleged, as aforesaid, that the defendant went upon the land without authority, and the plaintiff presented his proof upon the theory that the defendant was a trespasser ab initio because of its violation of the limited permission for the exploration to be made, and was also negligent in exploding the dynamite too near the well and residence of the plaintiff. (Hn 4) In other words, the plaintiff assumed a greater burden than was necessary in that behalf, since the defendant, if a trespasser, was liable for the damages to the property and for the value of the loss of time and of the labor done in bringing water from a distance for use on their farm, without regard to the degree of care with which its explorations may have been carried on.
This principle of liability is sustained by approximately twenty decisions from other jurisdictions cited in the brief of the appellee, and is in accord with the settled law of our own State. We find that the authorities cited by the appellant in support of its contention of nonliability in the absence of a negligent manner of conducting such operations are based upon the theory that the defendant had obtained authority to make the exploration at the place in question, or anywhere on the land of the plaintiff.
(Hn 5) It is also contended by the appellant that the proof is insufficient to show that the damage to the well was proximately caused by the explosion complained of, but we think that the evidence was amply sufficient to present an issue for the jury on that question. A well-borer of approximately twenty-nine years experience testified as to the trouble that he had been having in that area in getting an adequate supply of water since the explosions occurred, whereas he had never had any difficulty in doing so theretofore, if he went deep enough. Then, too, the testimony of Mrs. Brown clearly established that the effect on the well from the explosion was immediate, and the damage was clearly shown to have been a permanent injury to the realty.
(Hn 6) It is next assigned for error, and the point was properly reserved in a motion for a new trial, that the verdict is excessive. But, we think that the proof as to the value of the farm before and after the adequate supply of water was destroyed, and as to the other damages, was such that we are unable to say that the verdict is so grossly excessive as to evince bias, passion or prejudice on the part of the jury against the defendant.
(Hn 7) Special emphasis is placed upon an assignment of error which is based upon an instruction which told the jury, in effect, that if they believed the facts testified to on behalf of the plaintiff, a verdict should be rendered for the plaintiff "in an amount reasonable to compensate him, the said Newton L. Brown, for damage sustained by him in an amount not to exceed the sum sued for in the declaration, namely $1,500." The jury returned a verdict for $500 less than this amount, and we cannot therefore say that it adopted any suggestion as to the amount that this instruction may have contained; and that since we do not think the verdict is grossly excessive, we are not justified in reversing and remanding the cause for a new trial on that account. Then, too, we point out that the instruction read: "In an amount reasonable to compensate him", not to exceed, etc.
We have carefully examined all of the assignments of error and have reached the conclusion that the case should be affirmed.
Affirmed.