O'BRIEN v. Primm

419 S.W.2d 323, 243 Ark. 186, 27 Oil & Gas Rep. 465, 1967 Ark. LEXIS 1090
CourtSupreme Court of Arkansas
DecidedOctober 9, 1967
Docket5-4261
StatusPublished
Cited by11 cases

This text of 419 S.W.2d 323 (O'BRIEN v. Primm) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'BRIEN v. Primm, 419 S.W.2d 323, 243 Ark. 186, 27 Oil & Gas Rep. 465, 1967 Ark. LEXIS 1090 (Ark. 1967).

Opinions

J. Fred Jones, Justice.

This is an appeal by R. J. O’Brien and Dowell, Division of Dow Chemical, from a judgment for damages in the amount of $4,000.00 rendered by the Ouachita County Circuit Court on a jury verdict in favor of the appellees, Lester and Edith Primm, who were plaintiffs in the trial court.

Appellants contend that verdicts should have been directed for them and designate four points relied on as follows:

“1. The Court erred in not directing verdicts for the defendants at the close of plaintiffs’ case and again after plaintiffs were permitted to produce additional testimony and again closed their case.
“2. The Court erred in not directing verdicts for the defendants at the close of all of the testimony and before instructing the jury, and in refusing to enter a verdict for the defendants notwithstanding the verdict of the jury.
“3. The Court erred in not directing verdicts for the defendants inasmuch as there was no substantial evidence of negligence on the part of appellants.
“4. The Court erred in not directing verdicts for the defendants inasmuch as there was no substantial evidence that appellants’ acts were the proximate cause of the injuries complained of.”

The record reveals the following facts:

In April 1964 appellees owned a forty-acre tract of land in Ouachita County with their home and a tenant house located thereon. Both houses had been supplied, for about eighteen years, with water from a well about thirty feet deep and containing twelve or fourteen feet of good soft water. The appellant, It. J. O’Brien, owned an oil well 550 feet from appellees’ water well. The oil well was 2,326 feet deep, and in April 1964, was providing 1.4 barrels of oil per day. Seven hundred feet and four hundred and eighty-five feet, respectively, from appellees ’ water well, there were two salt water disposal pits which had been in use for a number of years. The evidence is in conflict as to whether the pits were higher or lower in elevation than appellees’ water well.

In April 1964, appellants did what is known as a sand fract job on the oil well, and within a week or so following this operation, a change was noted in the quality of the water in appellees’ water well, and the quality of the water rapidly deteriorated until it soon became unfit for human consumption.

There was ample evidence presented by appellees that during the eighteen years prior to the sand fract operation, the water in their well had been palatable and wholesome and that within a month following the sand fract operation, the water became unfit for household use, even for bathing and laundry. Aside from the testimony of the appellees and their witnesses as to the change in the appearance and taste of the water, there was evidence that the water killed flowers watered with it; that new galvanized pipe fittings on hot water tanks had been eaten through with rust and acidic-like corrosion in a period of eighteen months. Undated reports of chemical analyses made after the sand fracting job, showed a variation in total dissolved salts from 60,800 ppm with a pH factor of 6.1 to 851 ppm dissolved salts with a pH factor of 4.9.

Chemical analyses presented by appellants from samples taken from the Primm well on December 7, 1964, and December 7, 1965, show changes as follows: chloride from 160 in 1964. to 340 in 1965; sodinm 80 to 190; total solids 305 to 613 and pH factors from 6.2 to 6.7.

Although the terms “dissolved salts,” “chloride ” “sodium,” and “total solids” are indefinite terms in relation to the problem here, appellees ’ undated reports of chemical analyses show a tremendous variation in the chemical contents and acidity of the water, and appellants ’ reports show that the named chemicals and solids more than doubled within the one year period from December 1964 to December 1965, and during the same period, the relative acidity of the water changed slightly toward alkalin (pH 7 being- neutral) from 6.2 to 6.7. The analyses reports introduced by appellees bear no date so we are unable to tell when the water attained its highest relative acidity, but appellants’ own expert witness testified that pH 4.9 is a strong acid for human consumption or use.

As a matter of fact, appellants offered expert testimony to the effect that the chemical content of the water in appellees’ well was consistent with the chemical content of the salt water disposal pits near his land, so certainly there was ample evidence of damage to appellees’ water well to go to the jury at the close of appellees’ proof, and there was ample evidence to support the jury verdict on this point.

Appellees’ witness, Mr. Hogg, testified that appellees’ land had a true market value of $20,000.00 with good usable water, and $8,000.00 or $10,000.00 without usable water. Mr. Honeycutt, a witness for appellants, placed the before and after value at $12,500.00 and $11,-000.00, or a difference of $1,500.00 based on the value of the two houses and one acre of ground with each house and $1,000.00 for drilling a new well.

From this testimony and the testimony of appellees as to their inconvenience in having to haul water for domestic use, together with the testimony of Mr. Hamlin as to the two water strata in the area; one 25 to 30 feet deep and the next 360 feet deep; we are of the opinion that appellees submitted ample competent evidence to go to the jury on the over-all damages, and that there was sufficient evidence to support a jury verdict of $4,000.00.

We now come to the most important issue; the negligence of appellants and the proximate cause of the damages to appellees.

The appellants produced considerable testimony while using charts or diagrams drawn to scale, apparently showing detailed diagrams of the oil well, including the location of oil bearing sands, perforations, and the location or locations of cement in or around the casing.

As we understand the testimony, the appellees were trying to prove, by circumstantial evidence, that because of the pressure forced into the oil well in the sand fracting operation, a channeling occurred from the oil well into the water strata of appellees’ well thus bringing impurities from the oil well to appellees’ water well, and that appellants were negligent in applying the pressure they did apply in bringing this about.

Appellants were attempting to disprove appellees’ theory by showing that even with a pressure of 3,500 pounds per square inch, a channeling did not occur as evidenced by no sudden drop in pressure on a pressure gauge at the well-head. And that as a matter of fact a channeling could not occur, because of the protective cement around the casing as indicated on the charts.

Apparently the charts were not offered in evidence since they do not appear in the record before us, but in their use before the jury Mr. Zwahlen, a petroleum engineer for appellant, testified as follows:

“Q. Mr. Zwahlen, I have some diagrams. Are yon familiar with that diagram?
A. Yes, I am.
Q. Would you explain it, please?
A. Yes, I will.

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O'BRIEN v. Primm
419 S.W.2d 323 (Supreme Court of Arkansas, 1967)

Cite This Page — Counsel Stack

Bluebook (online)
419 S.W.2d 323, 243 Ark. 186, 27 Oil & Gas Rep. 465, 1967 Ark. LEXIS 1090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-primm-ark-1967.