
    Melvin SOILEAU, Plaintiff and Appellee, v. YATES DRILLING COMPANY, Inc., et al., Defendants and Appellants.
    No. 1587.
    Court of Appeal of Louisiana. Third Circuit.
    Feb. 15, 1966.
    
      Lewis & Lewis, by Seth Lewis, Jr., Ope-lousas, for defendants-appellants.
    Donald Soileau, Mamou, for plaintiff-appellee.
    Before TATE, FRUGÉ and HOOD, JJ.
   HOOD, Judge.

Plaintiff executed an oil, gas and mineral lease affecting a 42.5-acre tract of land owned by him in Evangeline Parish. Pursuant to the rights granted by that lease, a well was drilled on the leased premises in search of oil, but it resulted in a dry hole. Plaintiff instituted this suit for damages for loss of crops and injury to his land, which damages he alleges resulted from these drilling operations and the failure of defendants to restore his land to its former condition.

The suit was instituted against four defendants, including R. E. Williams, to whom the lease had been assigned by the original lessee, and Yates Drilling Company, Inc., the drilling contractor. All of the defendants except Yates were nonresidents, and the suit was dismisssed as to them for lack of jurisdiction, leaving Yates as the sole remaining defendant. Judgment on the merits was rendered by the trial court in favor of plaintiff and against Yates for the sum of $2875.00. Yates has-appealed.

The principal question presented is whether Yates, the drilling contractor, is liable to plaintiff for the damages which, he allegedly sustained as a result of the drilling operations or as a result of the failure of the defendants to restore plaintiff’s property to its former condition.

On March 29, 1963, plaintiff leased this, property for oil, gas and mineral purposes to J. Paul Shelton. Shelton assigned the lease to R. E. Williams, and thereafter Williams entered into a contract with Yates, under the terms of which Yates, agreed to drill a well on the leased premises for the lessee. Pursuant to that agreement, Yates set up a rig on the property,, constructed the necessary mud and water-pits, and drilled a well to the depth required by the contract. The drilling operations were completed in due course, but they resulted in a dry hole. The well was-then cemented up, and Yates moved his-derrick, rig and equipment off the leased premises. Yates did not fill in the mud and water pits which it had used in the-drilling operations, and it did not clean up-the area or restore the land to its former condition. The major part of plaintiff’s, claim is for the cost of refilling these pits- and releveling the land.

In setting up the rig and derrick, it was. necessary for Yates to cut or to remove-about ten feet of a drainage levee which was located on the leased premises. Before cutting this levee, Yates discussed the-matter with plaintiff, and plaintiff consented to the cutting of the levee exactly as was done. After the drilling operations had been completed, Yates refilled the gap which had been made in this levee, but when plaintiff attempted to use it later the new fill which Yates had put in gave-way. A portion of plaintiff’s claim is for-the cost of repairing this levee.

Prior to the time Yates moved his equipment in, a hoard roadway was constructed on the leased premises leading from the public road to the location of the well. This roadway was built by a contractor engaged by Williams,'at Williams’ expense, prior to the time Yates began drilling. When Yates moved out, after completing the drilling operations, he did not remove or disturb the board roadway.

Before any drilling operations were commenced, Lewis Yates, President of the defendant drilling company, discussed with plaintiff the various places where the necessary mud and water pits could be located, and plaintiff agreed with Yates as to where they should be constructed. Yates then located the pits at the places agreed upon, one of the mud pits being located in a gully which ran through the property. In order that drainage would not be impeded, Yates dug a ditch or channel around the north side of this pit through which water from the gully could flow. Later, the Police Jury enlarged that ditch and Yates paid the Police Jury for doing so after a demand for that expense had been made on Yates.

The lease, contract between plaintiff and Williams (as assignee of the original lessee) provides that “Lessor reserves all of the rights to claim damages resulting from drilling operations conducted on the land hereinabove described,” and that “the Lessee shall be responsible for all damages * * * caused by Lessee’s operations.”

The drilling contract between Williams and Yates provides, “Contractor agrees to protect, indemnify, and save harmless the owner (Williams) from and against all claims, demands, and causes of action in favor of * * * third parties on account of * * * property damages * * * arising ortt of the work to be performed by Contractor hereunder and resulting from the negligent acts or omissions of Contractor, Contractor’s agents, employees, and subcontractors.” There is no provision in the drilling contract which requires Yates to clean up the leased premises, to fill in the pits, to level the property, or to restore the property to its former condition. The evidence shows that it is the custom in the oil well drilling business that the lessee or operator of the lease (who in this case was Williams), at his own expenses, fills in the mud and water pits, removes the board roadway, cleans up the area and restores the property to its former condition. The cleaning up and restoring of the property to its former condition is not customarily done by the drilling contractor.

Plaintiff contends that he is entitled to recover against Yates in tort, under the provisions of Article 2315 of the Revised Civil Code, primarily on the ground that Yates was negligent in failing to fill up the mud and water pits, in failing to adequately repair the drainage levee which had been cut, and in failing to restore the property to its former condition. He also contends that the construction of the mud pits near the gully caused water to back up and flood some of his lands, that grass did not grow in the immediate area where the well was drilled after the first year, that a fence which had been broken down was not repaired by defendants and had to be fixed by plaintiff, that all of the boards used in constructing the roadway had not been removed and that some wire had been left on the premises.

Alternatively, plaintiff contends that the “save harmless” provision in the drilling contract constitutes a stipulation pour autri in favor of plaintiff, and that such a provision gives plaintiff a cause or right of action against Yates for the damage which plaintiff sustained.

The trial judge reasoned that “plaintiff does have a right of action against Yates since the lease itself provides that any damage caused by the owner of the lease shall be paid to the plaintiff.” Pie concluded that “plaintiff is entitled to recover from Yates since Yates actually caused the damage herein, even though it might have been working for Williams.” He allowed plaintiff $2825.00 as damages for Yates’ failure to refill the pits and restore the property to its former condition, and $50.00 for repairing the cut in the drainage levee.

We cannot agree with the learned trial judge that plaintiff is entitled to recover against Yates under the circumstances presented here. The lease which was executed by plaintiff gave the lessee the right to drill a well on the leased premises. Yates, having entered into a drilling contract with the lessee, had the right to go on plaintiff’s property and to drill a well in search of oil. Yates was not a trespasser, and it. did not commit a tort when it set up its derrick and constructed the mud and water pits. It conducted the drilling operations in accordance with the provisions of the drilling contract, and the evidence fails to show that Yates was negligent in any respect. Under the terms of the drilling contract, Yates was not required to refill the pits, to clean up the property or to restore it to its former condition, and thus Yates had the right to move off the property after the drilling operations had been completed, leaving the pits as they were. There clearly was no negligence on the part of Yates in its failure to fill up the pits.

We find no merit to plaintiff’s argument that the pits constituted a part of the “equipment” used by Yates in drilling the well, which equipment should have been removed from the premises as was the derrick and drilling rig. And we cannot agree with plaintiff in his argument that Yates assumed the obligations of the lessee to restore the property to its former condition because it “accepted the benefits of the contract authorizing it to dig mud holes as well as being paid for the work.”

Yates also had the right to cut a section of the drainage levee in order to set up the derrick. The evidence does not show any negligence on its part either in the cutting or the repair of this levee. Our interpretation of the contract is that the duty of repairing the levee actually rested on Williams, the lessee, rather than on Yates.

No contractual relationship of any kind existed between plaintiff and Yates, so if plaintiff has a right or cause of action against this defendant at all it must be in tort. Since the evidence fails to show any fault or negligence on the part of Yates, we conclude that the defendant is not liable in tort and that the trial judge erred in allowing plaintiff to recover.

We also find no merit to the argument that the “save harmless” provision in the drilling contract constitutes a stipulation pour autri by Yates in favor of plaintiff. That stipulation was in the nature of an agreement of indemnification and, as such, it was distinguishable from a contract of suretyship, defined in LSA-C.C. Art. 3035. It did not create a right of action in favor of plaintiff and against Yates. See Vuljan v. Board of Commissioners of the Port of New Orleans, La.App. 4 Cir., 170 So.2d 910 (writ refused); 42 C.J.S. Indemnity § 29, pp. 610-611.

Even if plaintiff should be permitted to maintain an action against Yates under this “save harmless” provision, it would avail him nothing, because the contract only obligates Yates to hold Williams harmless from claims “resulting from the negligent acts or omissions” of Yates. We have determined that the evidence fails to show any negligence on the part of Yates.

Our conclusion is that plaintiff is not entitled to recover from Yates, but we express no opinion as to the right which he may have to recover from the lessee or operator of the lease or any other party.

For the reasons herein set out, the judgment appealed from is reversed, and judgment is hereby rendered in favor of defendant, Yates Drilling Company, Inc., and against plaintiff, Melvin Soileau, rejecting plaintiffs demands and dismissing this suit as against this defendant at plaintiff’s costs. The costs of this appeal are assessed to plaintiff-appellee.

Reversed.

TATE, Judge

(concurring).

The landowner sues to recover damages to his tract caused by unsuccessful mineral drilling operations, principally three pits which must he dredged of waste and refilled with dirt and relevelled. Pie originally sued not only the present appellant (“Yates”), the drilling contractor who actually caused the damage, hut also several non-residents, including the holder of the mineral lease, R. E. Williams, d/b/a R. E. Williams Drilling Company (hereinafter “Williams”). The trial court orally maintained an exception dismissing Williams from the suit, based upon the court’s lack of personal jurisdiction over them (a point to which I shall refer again before concluding).

The trial court held Yates liable for the proven damages of $2,875 caused to the plaintiff landowner’s tract by Yates’s operations. On Yates’s appeal, we have reversed and have dismissed the landowner’s suit against this drilling contractor on the ground that Yates had a contractual right to cause the damage to the land but was under no contractual obligation to repair it.

The writer agrees with this majority holding, although for slightly different reasons: By the “save harmless” clause in the drilling contract between Williams and Yates, Yates had agreed to indemnify Williams from all claims of third parties on account of property damage arising out of the work to be performed by the contractor “resulting from the negligent acts or omissions of the contractor.” Since the record fails to show that any of the property damage was caused by any negligence of Yates, for this reason only I do not agree with the position of our dissenting brother that the agreement in question amounted to a stipulation in favor of the landowner. If Yates was obligated to Williams to repair the type of damage here caused, I agree with the dissenting position that this obligation, although in terms indemnifying Williams only, nevertheless would be enforceable by the landowner as the stipulation’s third party beneficiary.

Williams is undoubtedly liable to the landowner-plaintiff for any failure to repair the damage to the land caused by the drilling operations. However, I have been unable to find any provision of the drilling contract between Yates and Williams or any principle of law by which Yates is obligated to refill the drilling pits constructed by Yates pursuant to the contractual authorization conferred by the lease between the plaintiff-landowner and Williams, the mineral lessee. This right was exercised by Yates as Williams’s independent contractor.

Under the present facts, it seems inequitable to me to allow Yates to exercise the benefits under the mineral lease, the right to drill, and nevertheless not to be subject to the lease’s obligations, the restoration of the tract. It would seem that the exercise of rights conferred by the lease should be conditioned upon complying with the duties correlative with such rights.

Again, it might seem that the landowner-plaintiff, as a third person to the Yates-Williams drilling contract, should be able to force Yates either to repair any damage caused by Yates as a result of that contract to which the landowner was not a party, or to call Williams into the suit to do so or else defend on the basis of the mineral lease. Yates relies upon the mineral lease, to which Yates is not a party, to justify his going onto the premises and causing the damage as Williams’s independent contractor. However, Yates avoids the consequent responsibilities of the very lease upon which he relies, by pleading that he is not obligated to repair the damages under the Yates-Williams contract (to which the landowner is not a partyj.

There is thus a great deal of common sense and equity to sustain the holding of the trial court and the view of our dissenting brother that the drilling contract and the mineral lease are so intertwined that the exercise of lease rights through the drilling contract subjects the user to the same obligations to the landowner as if the lessee himself had exercised them (whatever the rights inter se of the drilling contractor and the lessee). If for instance a mineral lessee for a lump sum sold all future production from a producing oil well and then became insolvent, I do not suppose the purchaser could escape an obligation to pay royalties to the landowner upon some theory that a bona fide contract of sale between the lessee and the purchaser had deprived the landowner of any right to receive mineral royalties produced from his land by reason of the lease.

Nevertheless, at the present time I have been unable to ascertain any legal authority by which Yates, an independent contractor exercising Williams’s lease rights to go upon the land and dig drilling pits, is obligated by reason of so doing to fulfill Williams’s corresponding lease obligations to refill these same pits when drilling operations are concluded.

I do notice, however, that Williams is apparently still a party to the suit below. Although the lower court orally dismissed Williams and other non-residents from the suit, no signed judgment to such effect was rendered, and thus apparently the suit is still pending against Williams. See, e. g., Fisher v. Rollins, 231 La. 252, 91 So.2d 28. This being so, upon application for new trial or otherwise, it is possible that the trial court may be able to reconsider its ruling dismissing Williams from the suit because of a lack of jurisdiction over this non-resident, in the light of LSA-R.S. 13:3201(e) as amended by Act 47 of 1964, conferring jurisdiction over causes of action arising from a non-resident’s “having an interest in, using, or possessing a real right or immovable property in this state”, see Reporter’s Comment (e); this long-arm procedural statute being presumably retrospective in operation so as to apply to causes of action arising before its enactment, see Covington v. Southern Specialty Sales Co., La.App. 1 Cir., 158 So.2d 79, 89, see also McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, 1957 (syllabi 4, 5).

I respectfully concur.

FRUGÉ, Judge

(dissenting).

I respectfully dissent from the decision rendered by the majority of my brothers in this case.

Viewing the mineral lease contract and the drilling contract as a whole, it appears to this writer that Yates Drilling Company, Inc. accepted the obligation originally imposed by the plaintiff on the mineral lessee to protect his property from any act or omission.

There is no disputing that when plaintiff gave the oil, gas and mineral lease to the mineral lessees he authorized them to enter his premises and do all reasonable and necessary things to drill and produce an oil well. The digging of the mud and water pits was necessary to the drilling of such a well. In return for this, the mineral lessees and the drilling contractor agreed to diligently seek to produce and save oil, gas and other minerals. Further, the lessees, and then by contract the drilling contractor, obligated themselves to pay the lessor-plaintiff all damages caused to plaintiff’s property. Although Yates was not a party to the mineral lease, it cannot be said he was a stranger thereto, and his contract to drill specifically obligates him to hold harmless his principal from any damages occasioned by his acts or by his negligence.

It is this failure to fulfill these provisions of the contract which gave rise to this lawsuit. Defendant Yates Drilling Company, Inc., agreed by contract to be responsible to third parties (namely, plaintiff) on account of property damage arising out of its work in the drilling of the oil well.

The Louisiana Civil Code, by the following articles, clearly shows the liability of parties to a contract entered into for the benefit of a third party:

Article 1890:

“A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”

Article 1902:

“But a contract, in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, can not be revoked as to the advantage stipulated in his favor without his consent.”

In First State Bank v. Burton, 225 La. 537, 73 So.2d 453, the Supreme Court of Louisiana said:

“The legal result of such a stipulation is to give the party in whose favor it is created ‘another and additional debtor’.”

And at page 457 the same court stated:

“The law does not provide for an express acceptance of or consent to a stipulation pour autrui by the beneficiary nor does it prescribe any particular form of acceptance or consent. In some cases it was held that the appearance of the beneficiary as claimant in a suit before the Court is evidence of acceptance and certainly it would seem, under that jurisprudence that the claim now being asserted by Morris & Kendrick in this proceeding, regardless of any other proof of their assent, is sufficient.”

In this case, Soileau had the right to accept the stipulation in his favor and certainly did so by the institution of this suit.

For the foregoing reasons it is my opinion that the judgment of the trial court was correct, and I respectfully dissent.  