WESTMORELAND ET AL. v. CALIFORNIA CO

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Docket Number

No. 41732.

Attorney(S)

O.B. Triplett, Jr., Forest, for appellants. I. Appellants' title to the gravel was sufficient to support their suit for damages; by deed and by possession under claim of title. Hickenbottom v. Lehman, 124 Miss. 682, 87 So. 149; Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298; McCleary v. Anthony, 54 Miss. 708; Witherspoon v. Campbell, 219 Miss. 640, 69 So.2d 384; Sec. 711, Code 1942. II. By preparing and accepting the deed from W.B. Crumpton, and by the representations of its president to Crumpton, Central Oil Company was bound by estoppel and election to limit its mineral title so as to protect the rights of Crumpton to sand and gravel, excepting only those rights of way "necessary" for exploring and extracting its minerals. Marfield v. Cincinnati, etc. Traction Co., 111 Ohio St. 139, 144 N.E. 689, 40 A.L.R. 357; Peeler v. Hutson, 202 Miss. 837, 32 So.2d 785; Schindel v. Danzer, 161 Md. 384, 157 A. 283; Sullivan v. Board of Suprs. of Lafayette County, 58 Miss. 790; 31 C.J.S., Sec. 78 p. 286. III. The lower court erred in sustaining objections to the testimony offered by Crumpton relative to the conduct and representations of Central Oil Company. 22 C.J., Sec. 1531 p. 1144. IV. Both the recorded deed from Crumpton to Central Oil Company and the possession of Crumpton and Westmoreland gave notice to the California Company of appellants' rights when the SW 1/4 of SW 1/4 was placed in the corrected lease and paid for by appellee. Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771; Russell v. Scarborough, 155 Miss. 508, 124 So. 648; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641. V. The confiscation of appellants' gravel pit and of their gravel for the construction of a fill was not the exercise of a necessary right of way for the exploration or development of the minerals under SW 1/4 of SW 1/4. Gulf Refining Co. v. Davis, 224 Miss. 464, 80 So.2d 467; Pace v. State, 191 Miss. 780, 4 So.2d 270. Wells, Thomas Wells, Charles Clark, Jackson; Luther D. Pittman, Raleigh, for appellee. I. The only and ultimate question presented by this appeal is whether appellee reasonably used and occupied the surface of leasehold premises, and did only such damages as were necessary to the owners of surface estates in the lands, which question is a question of fact decided by the Chancellor on disputed evidence and such decision is not manifestly wrong. American Sand Gravel Co. v. Rushing, 183 Miss. 496, 184 So. 60; Bullock v. Green, 224 Miss. 278, 80 So.2d 37; Cities Service Oil Co. v. Dacus (Okla.), 325 P.2d 1035; Cranston v. Miller, 208 Ark. 156, 185 S.W.2d 920; Gulf Refining Co. v. Davis, 224 Miss. 464, 80 So.2d 467; Koury v. Morgan, 172 Ark. 405, 288 S.W. 929; Lang v. Jones, 224 Miss. 649, 80 So.2d 783; Rohner v. Austral Oil Exploration Co. (La.), 104 So.2d 253; 4 Summers Oil Gas (perm. ed.), Sec. 652 p. 2; 26 Tulane Law Review 522. II. Appellants had no legal rights in the sand and gravel sufficient to support this action for damages. Ford v. Rhymes, 233 Miss. 651, 103 So.2d 363; Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298; Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Shepherd v. Mahannah, 220 F.2d 737; Witherspoon v. Campbell, 219 Miss. 640, 69 So.2d 384. III. The California Company was not estopped to deny that Central Oil Company took its mineral title to the subject premises under and by virtue of the Crumpton quitclaim deed. McLaurin v. Royalties, Inc., 231 Miss. 240, 95 So.2d 105; Sec. 867, Code 1942; 19 Am. Jur., Sec. 158 p. 815; 21 C.J.S., Sec. 133 p. 401. IV. Appellants are limited to a review of this case on the theory on which it was tried in the lower court. Seward v. First Nat. Bank of Meridian, 193 Miss. 565, 8 So.2d 236; Griffith's Mississippi Chancery Practice, Secs. 675, 677.

Judges

ARRINGTON, J.

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WESTMORELAND et al. v. CALIFORNIA COMPANY

1. Minerals — drilling operations — liability of lessee for negligent operations.

Drilling may be done anywhere within boundaries of oil and gas lease provided operations are not negligently performed.

2. Minerals — drilling operations — trespass — negligence — evidence failed to establish negligent operations.

Evidence sustained finding that oil and gas lease owner was not negligent in locating oil well drilling site in plaintiff's gravel pit which was within boundaries of lease.

Headnotes as approved by Arrington, J.

ARRINGTON, J.

W.C. Westmoreland and W.B. Crumpton filed bill of complaint in the Chancery Court of Smith County seeking damages against The California Company for the unreasonable location of an oil well drilling site in their gravel pit, and seeking a money judgment for trespass and negligence. From an adverse decree the complainants have appealed.

(Hn 1) It is admitted that The California Company had an oil and gas lease. The general rule is that drilling may be done anywhere on the land, within the limitations of the lease, provided operations are not negligently performed, such operations not constituting a nuisance. Summers Oil and Gas, Vol. 4, Sec. 652, page 4. Gulf Refining Company v. Davis, 224 Miss. 464, 80 So.2d 467, clearly adopts and applies that rule, requiring a showing of negligent operation precedent to recovery.

(Hn 2) We have carefully examined the record in this case and find that the chancellor was warranted in finding that the appellee was not guilty of negligence. We cannot say that the chancellor was manifestly wrong in his findings.

Affirmed.

McGehee, C.J., and Ethridge, McElroy and Rodgers, JJ., concur.

WESTMORELAND et al. v. CALIFORNIA COMPANY

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