
    (Monroe County Common Pleas.)
    WILLIAM WHEELER v. THE FISHER OIL CO.
    (1). Operators of an oil well drained salt water from their well into an adjacent creek. Lower riparian owners sued for damages claiming that the waters of the creek and their wells were spoiled thereby for domestic purposes. Held, that defendants had the right to conduct the salt water, necessarily pumped from the wells in the successful operation thereof, into and away by the natural drains — in this case into and away by said creek; but if by so doing the quality of the water in such run was so affected as to render it unfit for domestic purposes by plaintiff and other lower riparian owners, and such injury was plainly to be anticipated by the defendant, and was preventable by the exercise of reasonable care at a reasonable cost, it was incumbent upon the defendant to use su'ch care, and if it failed to do so, when by the use of such care the fouling of the water in the run could have been avoided, it would be liable. But if the damage to the water in said run was necessary and unavoidable plaintiff can not recover.
    (2). Defendant contended that the water in plaintiff’s well was spoiled by his own fault in draining his privy into the creek. Held that if the filth from his privy contributed in any substantial degree to the pollution of the water in said run and in said well, then the plaintiff cannot recover.
    This suit was brought by the plaintiff to recover damages for the alleged fouling by the defendant of a certain stream of fresh water that flowed through plaintiff’s premise, by it permitting salt water from certain oil wells drilled and operated by it on land above plaintiff’s premises, to flow into said stream and down the same, and from thence to percolate through the gravel into plaintiff’s water well, thereby rendering the water in both said stream and well totally unfit for use for domestic purposes.
   Charge to Jury.

Coultrap, J.

Gentlemen of the jury:

The ground upon which plaintiff seeks io recover damages in this case is-negligence. Negligence is the want of ordinary care. Ordinary care in any case, is such care as ordinarily careful and prudent persons are accustomed to exercise under like or similar circumstances.

(Here the court called attention to the allegations of the pleadings, and explained to the jury the rules of law as tc the burden of proof, and then proceeded as follows:)

One of the allegations of the petition denied by the answer is that the salt water from oilwells of the defendant, known as the Deborah Evans and L. O. Bradfield wells, was permitted to flow into said stream, from whence it percolated through the gravel into plaintiff’s water well and fouled the water therein, and rendered the same unfit for use for domestic purposes. The 'burden of proving that the salt water from said wells did spoil the water in plaintiff’s well and render it unfit for use rests upon the plaintiff. The defendant admits that some salt water from said wells flowed into said stream,but it denies that it was negligent or careless in permitting it so to do, and avers that in so doing it did as all other producers of oil did along said run. But you are instructed that what other operators and drillers of oil wells along said run may have done could in no way justify defendant in permitting the salt water from its wells to flow into said run, if it did not have a legal right to do so. The fact-that others may have been m the habit of disregarding plaintiff’s rights could not justify defendant in doing so. The first question then, for you to determine from the evidence is, did the salt water that flowed into said run from defendant’s wells percolate through the soil and gravel into plaintiff’s water well and render the water therein unfit for use for domestic purposes. If it did, and plaintiff was injured thereby, defendant is liable for damages for the injury so sustained, unless you find that the injury was one which could not have been prevented with reasonable care and expense on the part of the defendant, and unless plaintiff himself contributed to such injury as hereinafter explained.

If the water in plaintiff’s water well was spoiled by salt water from oil wells of other operators, and plaintiff had ceased to use it for any purpose, before the Evans and Bradfield wells had been drilled, and before saltwater from said wells could have reached plaintiff’s well, there could be no recovery of damages on account of salt water from defendant’s wells percolating into said water well, unless the defendant had acted with malice in permitting the salt water from its wells to flow into said run. But it is not claimed by the plaintiff that the defendant acted maliciously in the matter, and therefore there can be no recovery at all of damages on account of injury to said well if you find from the weight of the evidence that the water therein was already spoiled for domestic purposes at the time salt water was first pumped from defendant’s wells.

Drilling aud operating for oil and gas is a lawful business. It may be carried on by the owner of land himself, or by another under a lease from the owner, and in either case the rights and obligations of the operator are the same. The defendant in this case, who drilled the Deborah Evans and the L. C. Bradfield wells, under a lease from the owners,is therefore, for the purposes cf this suit, to be treated as the owner of the lands on which said wells were drilled, and as having the same rights and being under the same obligations with respect to adjoining lands as the owners themselves would have been.

“So use your own that you will not injure your neighbor’-’ is a maxim of the law applicable to cases of this kind. As applied t.o this particular case, being tried to you, it means that while the defendant had the right to drill and operate its leaseholds for oil and gas, if such operation was likely to injure the plaintiff, and such injury could reasonably be prevented, it was bound to use the reasonable precaution. In other words, while the defendant bad the right to drill and operate oil and gas wells on its leaseholds, it was bound to exercise this right in a reasonable manner, and with due regard to the rights of plaintiff and others. Prima facie the defendant had the right to conduct the salt water, necessarily pumped from the wells in the successful operation thereof, into and away by the natural drains — in this case into and away by said run; but if by so doing the quality of the water in said run was so affected as to render it unfit for domestic purposes by plaintiff and other lower riparian owners, and such injury wa3 plainly to be anticipated by the defendant, and was preventable by the exercise cf reasonable care at a reasonable cost, it was incumbent upon the defendant to use such care, and if it failed to do so, when by the use of such care the fouling of the water in the run could have been avoided, it would be liable.

If the damage to the water in said run was necessary and unavoidable, there can be no recovery in this case.

If the damage to the water in said run was not necessary and unavoidable, was it sufficiently obvious to have been foreseen that if the salt water from defendant’s wells was permitted to flow into said run, it would percolate through the gravel into plaintiff’s well and render the water therein unfit for use for domestic purposes, and, if so, could such injury have been prevented fay reasonable care and expenditure? These are questions you will be required to .answer in case you find that the water in said run and in plaintiff’s water well was not fouled and rendered unfit for use for domestic purposes before defendant’s wells were drilled, but were rendered foul and unfit for use by the salt water from defendant’s wells.

What then is meant by reasonable care and expenditure? It is not a question whether the injury could have been avoided by any degree of care and at any expense, but whether it could have beon done by the exercise of reasonable care and at a reasonable expense. The npgligence complained of is that defendant did not convey the salt water from its wells to a point in the run south of plaintiff’s premises by means of pipes, instead of running the water into said run, and hence-it is only necessary in this connection to instruct you as to what is meant by a reasonable expense, for if the injury to plaintiff’s well couid have been reasonably anticipated, and could have been prevented at a-reasonable expense, the exercise of such care required such reasonable expenditure to prevent the injury. By reasonable expense is meant such an expenditure as the production of said wells would reasonably have justified. If the expense of piping away said water .was such as practically to counterbalance the profit and benefit from said wells, then it would have been clearly unreasonable, and beyond what the defendant could justly be called upon tc assume, and in that case the defendant was not required to assume it. On the other hand, however large the expense would have been, if it was small in proportion to the gain to defendant from said wells, it was reasonable in regard to plaintiff’s rights, and the defendant should have paid it to prevent the damage, or he should now make compensation for the injury done. But in determining whether or not the salt water from defendant’s wells could have been conducted away at a reasonable expense by means of pipes, you are instructed that the defendant did not have the right to conduct said salt water aw'ay from its wells in pipes and empty it upon lands that did not belong to it, and if yow find from the evidence that it did not own the lands cn said run below p'aintiff’s land, you should take into consideration, in estimating what it w'ould have cost to conduct said salt water away in pipes, what it would have cost tc construct and maintain water pipes to the Ohio river, or to some point where the salt water could have been emptied without infringing on the rights cf any of the lower riparian owners. Could pipes to such point have been constructed and maintained at an expense small compared with the gain from said wells, or would the expense have practically counter-balanced the profits of defendant from said wells?

If the former, defendant should have constructed and maintained the pipes, if the quantity of salt water from said wells was sufficient to injure plaintiff and did injure him; if the latter, defendant was not bound to construct and maintain such pipes, but had-the r;ght to allow said salt water to flow into said run at the nat-’ urai point of drainage from its wells, and from thence down said run fo the river, and for sc doing it would not be liable in damages to the riparian land owners who may have been injured thereby; and this is true although the waters of said run, and the wells along the same, mav thereby have been rendered entirely useless for domestic purposes. In such cases, the injury done to the property cf persons living on the stream is one for which the law provides no remedy, and which must be borne by the individuals for the general good.

What the facts are you must determine from the evidence. If the expense of conducting the .salt water from said wells by> means of pipes would not have been reasonable, the plaintiff can not recover. If the water in plaintiff’s well was not spoiled before defendant’s wells were drilled, and if it was spoiled and rendered unfit for use by salt water from defendant’s wells permitted to flow into said run, and if said water could have been conducted away m pipes at a reasonable cost, you will next inquire whether or not the plaintiff himself contributed to the fouling of the water in said run and in his well; and this brings me to the timd defense in the answer.

The substance of this defense is that before the drilling of the Evans and Bradfield wells the plaintiff had erected and maintained until after the bringing of this suit a family privy on said run above plaintiff’s water well, and that about the 9th day of June, 1895, an oil well was completed on the lands of plaintiff which produced about the same quantity of salt water as said Evans and Bradfield wells, and that the same flowed into said run below said Evans and Brad-field wells and above plaintiff’s water well, and it is claimed that if the water in said water well was spoiled and rendered unfit for use for domestic purposes by the percolation of impure water from said run, it was in part due to the contributory negligence of the plaintiff himself. The allegations of this defense are denied by the reply, and the burden upon the issue thus joined is upon the defendant. That'is, the defendant is required to establish by a preponderance of the evidence that the allegations of his third answer are true. And you are instructed that if you find frcm the weight of the evidence that salt water from plaintiff’s own oil well, or the filth from his privy contributed in any substantial degree to the pollution of"the water in said run and in said well, then the plaintiff cannot recover. To defeat the right of recovery, it is not necessary that the plaintiff should have contributed to the pollution of the water in the same degree that the defendant did, but all that is required is that the plaintiff should have contributed thereto in some degree. The reason for denying a recovery in such cases is that the amount of damages caused by each in such cases cannot be apportioned, and the plaintiff cannot be permitted to recover damages of another for an injury done by himself.

If the plaintiff has established his right to recover anything in this case under the rules I have given you, you will next proceed to a consideration of his damages. If entitled to recover anything, he is entitled to such an amount as will fairly compensate him for the injury done. This is the amount, if any, that his property is rendered less valuable by the pollution of the water in said stream for the time that it was rendered unfit for use for domestic purposes, as well as by the pollution cf the water in said well and the rendering of it unfit for use, if you find that the water in either was rendered unfit for use by salt water from defendant’s wells. If you find for the plaintiff, you will insert the amount in your verdict after the dollar mark. If the plaintiff has failed to establish his right to recover anything in this action, your verdict will be for the defendant.

(Verdict for defendant.)  