WELCH, J.
The Ohio Oil Company, owner of an oil and gas mining lease, contracted with the Franklin Drilling Company to drill a well on a certain tract of land covered by the lease. In the course of the drilling operations conducted thereunder, oil, gas, and salt water were encountered. These substances sprayed from the well and over an adjoining tract of land held and occupied by Bethel Jackson under an agricultural lease. From the activity of the well Jackson suffered a loss of growing crops and sustained injury to his unplanted land and to his farm equipment, and suffered the loss of the use of living quarters and other rights and privileges under his agricultural lease.
Under this state of facts Jackson recovered judgment as against the drilling company and the oil company.
The drilling company asserts the plaintiff failed to establish his right to recover as against it. Reference is made to the general rule that a contractor who complies with the provisions of his contract is not liable for injuries resulting from conditions creat[688]*688ed by its performance, unless fault on his part is proved.
The oil company asserts the evidence was insufficient to support a judgment against it. Reference is made to the general rule that an employer is not liable for the negligent acts of an independent contractor in the performance of the contract.
The drilling company and the oil company each assert that the other was liable to the plaintiff under the terms of 52 O. S. 1941 §296.
It has repeatedly been held that by virtue of the statute the owner of an oil and gas well may be held liable for damages to another’s premises occasioned by oil, gas or salt water spraying from the well without proof of any specific acts of negligence on the part of the well owner. Comar Oil Co. v. Lawrence, 151 Okla. 187, 3 P. 2d 196; Texas Company v. Mosshamer, 175 Okla. 202, 51 P. 2d 757; I. T. I. O. Co. v. Graham, 174 Okla. 438, 50 P. 2d 720; C. L. McMahon, Inc., v. Lentz, 192 Okla. 153, 134 P 2d 563; and other cases.
In the Mosshamer case, supra, the court said:
“Since the adoption of the Revised Laws of 1910, this statute has been treated as a penal statute and also as a remedy for the benefit of all persons who may suffer injury by violation of its terms. Since the law positively requires that all waste oil and refuse from tanks or wells shall be drained into proper receptacles and be immediately burned or transported from the premises and in no case shall the same or salt water be permitted to flow over the land, it has been repeatedly held that a failure to perform the duty thus enjoined upon the operator of an oil well is negligence per se, and no other negligence need be pleaded or proved. ...”
“The statute prohibits, and negligence as a matter of law is implied,
In the Indian Territory Illuminating Oil Co. case, supra, it was said:
“ . . . the duty of preventing the salt water from escaping from the mas-tér’s premises was a nondelegable duty.”
In the McMahon case, supra, the court said:
“The statute is a penal one and a violation thereof renders the offender liable for ail damages proximately caused thereby. ... In an action to recover damages for a violation of the statute the issues drawn are whether the statute has been violated, and, if so, whether damage has proximately resulted therefrom and the degree of care exercised and the extent to which the statute has been violated are not in issue. . . .”
Clearly the owner of an oil and gas lease who contracts for and procures the drilling of a well is thereby no less bound to prevent oil, gas or salt water from escaping from the well to other premises. It is equally apparent that when a contractor has charge of the operations of a well and substances therefrom escape to other premises, the statute is no less violated. Under the statute and as affects a third party such contractor has an equal duty with the owner of the well of preventing gas, oil or salt water from escaping from the premises.
We hold that when oil, gas or salt water flows or sprays from a well over the surface of land surrounding premises, 52 O. S. 1941 §296 is violated and negligence as a matter of law is implied and imputed to those having charge of the operations of such well and to the owner of the well and such owner, or a contractor in charge, either or both may be held to answer to a third party for the damages resulting from such violation of the statute without proof of specific acts of negligence.
The oil company asserts that the trial court erred in refusing it permission to file a cross-petition against the drilling company for the recovery of such [689]*689amount ior which judgment is obtained against the oil company herein. It was the position of the oil company that the drilling company was liable to it for all acts of carelessness and negligence in the operation of the well resulting in the escape of substance therefrom with resulting judgment against the oil company.
In Tracey v. Crepin et al., 40 Okla. 297, 138 P. 142, the court, in the second paragraph of the syllabus, stated:
“A cause of action set up in a cross-bill must be germane to the original controversy; and where a defendant seeks to set up new and distinct matter, not maintainable under the provisions of the Code as a counterclaim, unless such matter is involved in a proper determination of the subject-matter of the original suit, a defendant will be required to litigate it in a separate action.”
It is apparent that the question of liability of the drilling company to the oil company was outside the issues presented by the plaintiff and wholly unnecessary to a determination of the plaintiffs right of action against either or both of the defendants. The court did not err in denying the application to file the cross-petition.
The drilling company asserts that the amount of damages awarded was excessive.
The record reflects that the well sprayed oil, gas or salt water during a period of 60 days while operation of the well was under the management of the drilling company. Thereafter, and when the well was being operated by the oil company, the well was opened and sprayed substances over the premises of the plaintiff.
The trial court found the extent of the plaintiffs damages from the well spray to be $1,905, of which $1,810 accrued during the 60-day period of the drilling company’s operations, and $95 thereafter; that the drilling company and the oil company were liable for $1,810 damages and that the oil company alone was liable for an additional $95 damages. Judgment was entered accordingly.
The separate items of damages found by the court, and as stated in the journal entry of judgment, include:
“Item No. 1. For value of oats $600.00;
“No. 2. For value of cotton and/ or loss of rental value of cotton land $200.00;
“No. 3. For value of Higear (sic) and/or loss of rental value of Higear (sic) land $100.00;
“No. 4. For value of cane and/or loss of rental value of cane land $100.00.”
The record reflects that cotton, hegari and cane were planted by the plaintiff after the drilling company had ceased management of the well.
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WELCH, J.
The Ohio Oil Company, owner of an oil and gas mining lease, contracted with the Franklin Drilling Company to drill a well on a certain tract of land covered by the lease. In the course of the drilling operations conducted thereunder, oil, gas, and salt water were encountered. These substances sprayed from the well and over an adjoining tract of land held and occupied by Bethel Jackson under an agricultural lease. From the activity of the well Jackson suffered a loss of growing crops and sustained injury to his unplanted land and to his farm equipment, and suffered the loss of the use of living quarters and other rights and privileges under his agricultural lease.
Under this state of facts Jackson recovered judgment as against the drilling company and the oil company.
The drilling company asserts the plaintiff failed to establish his right to recover as against it. Reference is made to the general rule that a contractor who complies with the provisions of his contract is not liable for injuries resulting from conditions creat[688]*688ed by its performance, unless fault on his part is proved.
The oil company asserts the evidence was insufficient to support a judgment against it. Reference is made to the general rule that an employer is not liable for the negligent acts of an independent contractor in the performance of the contract.
The drilling company and the oil company each assert that the other was liable to the plaintiff under the terms of 52 O. S. 1941 §296.
It has repeatedly been held that by virtue of the statute the owner of an oil and gas well may be held liable for damages to another’s premises occasioned by oil, gas or salt water spraying from the well without proof of any specific acts of negligence on the part of the well owner. Comar Oil Co. v. Lawrence, 151 Okla. 187, 3 P. 2d 196; Texas Company v. Mosshamer, 175 Okla. 202, 51 P. 2d 757; I. T. I. O. Co. v. Graham, 174 Okla. 438, 50 P. 2d 720; C. L. McMahon, Inc., v. Lentz, 192 Okla. 153, 134 P 2d 563; and other cases.
In the Mosshamer case, supra, the court said:
“Since the adoption of the Revised Laws of 1910, this statute has been treated as a penal statute and also as a remedy for the benefit of all persons who may suffer injury by violation of its terms. Since the law positively requires that all waste oil and refuse from tanks or wells shall be drained into proper receptacles and be immediately burned or transported from the premises and in no case shall the same or salt water be permitted to flow over the land, it has been repeatedly held that a failure to perform the duty thus enjoined upon the operator of an oil well is negligence per se, and no other negligence need be pleaded or proved. ...”
“The statute prohibits, and negligence as a matter of law is implied,
In the Indian Territory Illuminating Oil Co. case, supra, it was said:
“ . . . the duty of preventing the salt water from escaping from the mas-tér’s premises was a nondelegable duty.”
In the McMahon case, supra, the court said:
“The statute is a penal one and a violation thereof renders the offender liable for ail damages proximately caused thereby. ... In an action to recover damages for a violation of the statute the issues drawn are whether the statute has been violated, and, if so, whether damage has proximately resulted therefrom and the degree of care exercised and the extent to which the statute has been violated are not in issue. . . .”
Clearly the owner of an oil and gas lease who contracts for and procures the drilling of a well is thereby no less bound to prevent oil, gas or salt water from escaping from the well to other premises. It is equally apparent that when a contractor has charge of the operations of a well and substances therefrom escape to other premises, the statute is no less violated. Under the statute and as affects a third party such contractor has an equal duty with the owner of the well of preventing gas, oil or salt water from escaping from the premises.
We hold that when oil, gas or salt water flows or sprays from a well over the surface of land surrounding premises, 52 O. S. 1941 §296 is violated and negligence as a matter of law is implied and imputed to those having charge of the operations of such well and to the owner of the well and such owner, or a contractor in charge, either or both may be held to answer to a third party for the damages resulting from such violation of the statute without proof of specific acts of negligence.
The oil company asserts that the trial court erred in refusing it permission to file a cross-petition against the drilling company for the recovery of such [689]*689amount ior which judgment is obtained against the oil company herein. It was the position of the oil company that the drilling company was liable to it for all acts of carelessness and negligence in the operation of the well resulting in the escape of substance therefrom with resulting judgment against the oil company.
In Tracey v. Crepin et al., 40 Okla. 297, 138 P. 142, the court, in the second paragraph of the syllabus, stated:
“A cause of action set up in a cross-bill must be germane to the original controversy; and where a defendant seeks to set up new and distinct matter, not maintainable under the provisions of the Code as a counterclaim, unless such matter is involved in a proper determination of the subject-matter of the original suit, a defendant will be required to litigate it in a separate action.”
It is apparent that the question of liability of the drilling company to the oil company was outside the issues presented by the plaintiff and wholly unnecessary to a determination of the plaintiffs right of action against either or both of the defendants. The court did not err in denying the application to file the cross-petition.
The drilling company asserts that the amount of damages awarded was excessive.
The record reflects that the well sprayed oil, gas or salt water during a period of 60 days while operation of the well was under the management of the drilling company. Thereafter, and when the well was being operated by the oil company, the well was opened and sprayed substances over the premises of the plaintiff.
The trial court found the extent of the plaintiffs damages from the well spray to be $1,905, of which $1,810 accrued during the 60-day period of the drilling company’s operations, and $95 thereafter; that the drilling company and the oil company were liable for $1,810 damages and that the oil company alone was liable for an additional $95 damages. Judgment was entered accordingly.
The separate items of damages found by the court, and as stated in the journal entry of judgment, include:
“Item No. 1. For value of oats $600.00;
“No. 2. For value of cotton and/ or loss of rental value of cotton land $200.00;
“No. 3. For value of Higear (sic) and/or loss of rental value of Higear (sic) land $100.00;
“No. 4. For value of cane and/or loss of rental value of cane land $100.00.”
The record reflects that cotton, hegari and cane were planted by the plaintiff after the drilling company had ceased management of the well. It is asserted that the drilling company could not be held liable for damages to growing crops which were planted after its management of the well had ceased and that the judgment is excessive as against the drilling company to the extent of the amounts shown in items 2, 3 and 4 above.
In Garrett v. Haworth, 183 Okla. 569, 83 P. 2d 822, in the seventh and eighth paragraphs of the syllabus, it is said:
“In an action for damages for injury to growing crops, the measure of damages is the value of the unmatured crops at the time of the injury. In arriving at such value, it is proper to show by evidence the probable yield under proper cultivation, and the value of such probable yield when matured, gathered, prepared, and ready for sale; also the probable cost of proper cultivation necessary to mature the crop, as well as the costs of gathering, preparation, and transportation to market. The difference between such probable value in the market and the cost of finishing the cultivation, and gathering, preparing and transportation to market, will represent the value at the time of loss.”
“The measure of damages for the anticipated loss of crops which plaintiff [690]*690was prevented, from planting by reason of the damage caused by the defendant, is the reasonable rental value of the land for the season.”
The well was first brought under control and ceased spray of plaintiff’s premises on May 29th, and thereafter plaintiff planted 13 acres of his land to cotton, 15 acres to hegari, and 15 acres to cane. These plantings commenced growth and were sprayed by the well, then under the sole management of the oil company. The plantings never matured. There was testimony concerning the rental value of these lands, ranging from $3 per acre for all the cultivatable lands to $25 per acre for the cotton land, and to $15 per acre for the other planted land. There was testimony concerning the normal probable yield and value of such yield of such lands planted to these crops, and testimony of probable costs of finishing harvesting and marketing. However, this testimony does not appear material as affecting the drilling company. There was testimony to the effect that the plantings after May 29th were too late in the season to base an expectancy of an average year’s yield from the land, or other than a light yield under best conditions.
It is apparent that this last mentioned testimony was the basis for the trial court’s finding of $95 damages as a sole liability of the oil company. These damages accrued after the drilling company had ceased operation of the well, and after the oil company had assumed management of the well. The finding is to the effect that the major damage to the land occurred prior to the plantings, in that timely planting was prevented.
We think the testimony as to the rental value of the cultivatable land and as to the effect of the well on such land as to prevent proper planting is sufficient to support the finding of the trial court as to items 2, 3 and 4.
As pertains to the court’s finding of $600 for the loss of the growing oat crop, the record reflects testimony of maximum probable yield of 920 bushels and maximum probable value of 75c per bushel, or in cash product $690. The testimony or probable cost of harvest and marketing in the minimum and as itemized reaches a total of $121.90, which applied to $690 leaves a balance of $568.10. However, the plaintiff testified in explanation of probable costs of harvesting and marketing that he owned harvesting and marketing machinery and facilities, and it was shown that in use of his own machinery and labor the probable cost of harvest and marketing could be reduced to a total of less than $100.
We find evidence to support the trial court’s finding of $600 damage for loss of the growing oat crop.
Challenge is made of items of damages found by the court and stated: “Loss of pasture $200.00, tractor idleness $125.00, increased expense $200.-00.” Evidence to support these findings is reflected in the plaintiff’s testimony.
The plaintiff testified to the effect that salt water and other substance killed the grass on his pasture lands; that he owned 13 head of cattle, five being milk cows, and that the grass had been adequate to support his cattle without other feed; that after the spray and during regular pasturage season his feed costs had been $250; that due to the well’s activity he was unable to use his tractor for a period of 25 days, that in use of the tractor he made $1.50 per hour and a net profit in excess of $5 per day; that during a period of 60 days he was compelled to stay away from his premises and the living quarters thereon most of the time, and was away from his home 25 full days; that during the period and when he was there, or at his home, with a change of wind direction from the well, he would be compelled to leave; that aside from nuisance, his necessary and added expense in travel and abiding on other premises was $200.
[691]*691Other items of damage found by the court and included ° in the total sum for which the judgment was entered are not disputed.
The judgment is affirmed.
DAVISON, C.J., ARNOLD, V. C. J., and CORN and O’NEAL, JJ., concur.
LUTTRELL, J., concurs as to Ohio Oil Company and dissents as to Franklin Drilling Company.
HALLEY, J., concurs in part and dissents in part. GIBSON and JOHNSON, JJ., dissent.