740 BURTON V. MILLER. [169 • •BUR • TON V. MILLER. 'Opinion delivered 1•Tovember 2, 1925. 1. MINES AND , MINERALS—ESCAPE OF , OIL FROM . ,WELL.—Pil which • escapes from a well , running wild is personal property and sub:- ject to 'reclamation after its' involuntarir escape from the owner'S pOssessidn. MTNns ANDMINRFAa', R—RTGAT TO FfIrOWIR RSCAPINn OIL.—Where the oil well.of plaintiffs' ran wild, as did s another well belonging to a third party, and the oil ,from each well flowed intO, defendant's pick-up . station, where he impounded the oil, plaintiffs were , entitled to recover , the valne of so much of the impoUnded as could be shown with reaSOnable certainty to haVe come froin their well into"defendant's possession:' MINES AND MINERALSRIGHT: TO 'RECOVER ESCAPING OIL.—Where ,plaintiffs' oil well ran wild as did a well r of. another, and the oil from each well , flowed toward defendant's;pick,up station, where he impounded.the escaping oil,.the mere difficulty of determining wha . t quantity of ' the Oil came from plaintiffs' well did not preclude' Plaintiffs from recbveting if 'proof . Can be niade with such reasonable certainty as to' forin the' basiS of calculation.' .A' pPealf;:om Union Circuit Court ; L:S.Britt,.Judge; reversed. Patterson,&.Rector, for appellant... Mahony, Yocum & 'Saye and* Marsh &Marlin, for apPell . ec, • . , KMITH,, J. ' Mrs. Janet Aughes . owned a forty-acre tract of.land,. which she leased to W. G. Burton, trustee, to explore for , oil and gas. A well, was drilled . , and . a gusher ,came . in , its capacity being estimated, as high as ,seventy tn. r one. hundred thousand barrels of , oil per . day. The well,.blew . its comiections looSe, and . "ran wild, Y as witnesses expressed it, for something . over :three days. While the well was .running wild, M..M. Miller, as trustee for certain persons, erected what is known as ,a `,` pickup .station.'? This consisted. . of. a darn across, .a .small creek, the object being to impound the waters coming down the creek together with such oil as might float on the top thereof and to remove the oil by steam pumps to storage pits, where it could be sold.
ARK.] BURTON V. MILLER. 741 .When the Burton well broke loose, ,a; large b,ody of men were employed.by him , to huild dams and levees ,on the lower side of the well to collect the, oil which- was escaping from the casings. Two large dams and a firewall Were constructed by Burton, and he had impounded behind these levees a, large quantity of oil, ..which witnesses in his' behalf estimated at- from one hundred' to one' hundred and tWenty-five. thousand harrelS. On . the night of March 13, 1923, the dams gave way .and . all of this oil escaped and ran down the creek to . Miller's . pickup station. A quantity of oil, estimated at . thirty-five thousand barrels, was- collected by Miller and: sold by him to the Standard Oil Company of touisiana,for130- 031.85, but when that company- was advised that the oil was claimed by Burton the company .refused to , pay whereupon , he brought suit to, enforce payment. Burton, -as owner of ‘ the lease, and, Mrs.,Hughes, as owner of the land having a royalty interest in the oil, became parties to this.litigation. . The 'Burton well Was located:on . the : *southeast quarter of the •northwest quarter of section -28;.township,15 3outh, range 16 west, in Ouachita County; and there. was another well located on . the .southeast quarter : of the southwest quarter of the same section,, kuown .as ., the Vitek well, and there:is a well-defined small creek running through , section 28, entering that section. about,,the center of . the north line thereof, and,-leaving , it near . the center of the southeast quarter thereof, where it .empties into Smackover Creek, which flows into: Ouachita:River. There is a 'branch or .small tributary oy the . creek .liead-ing in the northwest portion of the:southeast .quarter o:f the northwest quarter of section 28, and running southeast of -the Burton well.and emptying into:the main.creek. There is another.branch heading in the,:s,outheast,corner of the northwest, quarter of the southwest kmarter ,of section. 28, flowing east and just north of the Vitek,well and emptying into the main creek just above the pick-up, station which Miller erected. . •
742 BURTON V. MILLER. [169 The Burton well "ran wild" on Saturday morning, and Miller began the construction of his pick-up station ori the following Monday morning and completed it about one o'clock that night, and the oil was coming down the creek towards the pick-up .station in a stream which the witnesses said was about knee-deep to , a . mule. On the following Tuesday .or, Wednesday the Vitek well .also blew out its connections and "ran wild" for several days. There is a conflict in the testimony as to where the oil from the Vitek well ran, and it is insisted on 'behalf of Miller that the oil from the Vitek well united in the creek with oil from 'the Burton well and the commingled oil from the two . wells flowed into the pick-up station. On behalf of . Burton and Mrs. Hughes it is insisted that the oil from the Vitek well flowed in • another direction and did net flow into Miller's pick-up station. The owners of the Vitek well did not join , in the suit again8t Miller. At the conclusion of all the testimony the doinq directed a verdict in favor of Miller, after refusing all the instructions asked in behalf of Burton • and Mrs. -Hughes, and they have appealed. It appears from the' facts stated that the case is sUb-'stantially identical 'with the reeent caSe Of Crosson v. Lion Oil ce Refining. Co., ante p. 561, except for the testimony here that oil belonging to more than one person flowed 'into the pick-up station. In the Crosson case, supra, we said : "In the case at bar the undisputed facts show that the oil was not voluntarily allowed to . escape, and that the owner asserted Its claim to it as soon as it . ascertained that the oil had escaped and was in the possession of the defendants. There are no facts Or circumstances in the record from which it might be inferred that the plaintiff in this case is estopped frem claiming :the oil. As sobn as it was found out that the oil was escaping, the pipe-line was repaired. and' the plaintiff asserted title to the oil which was impounded by •the defendants in their mud-pit."
ARK.] BURTON . V. MILLER: 743 • What was there said•is applicable here. The oil.was not voluntarily allowed to escape, and Burton and Mrs. Hughes asserted their . title to the oil at once. .The oil haft become personal property and subject to be re-claithed .after it had involuntarily escaped from the owner 's. possession. The jury might have found, had the case been' submitted to them, that all.of the oil impounded at Miller's pick-up station did • not flow from the Burton well and that some of it did in fact flow'from the Vitek well. Such a finding would make it difficult to determine the quAn-: tity of *oil . for' which . a receVery might have been had. The burden would be on 'Burton a.nd Mrs. Hughes to show the quantity'of oil frOm their well Which'had been picked ijj by Miller; and 'they could * not' reCover for a largei; quaiititY : than was s . hown with reasonable certainty • haye come from their well. But they were . entitled to recover the 'value of such oil as could be shoWn • with reaSonable certainty to have . come froin their Well into Miller's possession. , The case of Blair v. , Clear Creek . Oil & Gas Co., 148 Ark. 301, involved a recovery of • damages for permitting gas to be drained by an . adjacent .owner, the suit:being brought against a lessee . whose duty it was to have developed 4 lease on land from which the gas .was , being drained:. Thwas there contended that no recovery could be . had s because it was not possible to determine the quan.- tity of gas drawn from the plaintiff's land. We recog-piied this difficulty, but .we. there. said: "What, iS the measure of , damages recoverable for drainage through wells *operated • by defendants . on their lands near the plaintiff , 's , boundary line May be difficult of determination and : troublesome to ascertain,.but that is no bar to relief in such, cases." Sohere it •May be difficult to determine what quantity of. oil came from the Burton well, as distinguished from the `Viték well, but this difficulty will not prevent
744 BURTON V. MILLER . . [169 a recovery if the proof ca.n be made with such reasonable certainty as-to form the basis of calculation. In the case made Burton and Mrs. Hughes were the oWners . of the oil which came from their well, and they were entitled to -recover' the value of so much of the oil as could with reasonable certainty be shown to have come from. their. well into Miller's possession. , • . It follows, from what we have said, that the court erred in directing a verdict in Miller's favor, and the jUdgmerit sof..t1W court below will be reversed, and the cause xemanded with directions to submit the case to the jury under instructions conforming to what we have here said... Of course, as , was pointed out in the Crosson case;,supra, Miller would haveJhe right to offset . against any recovery the necessary and reasonable expenses incurred by , him in impounding . and preserving the oil. : SMITH, J., (on, rehearing). In the petition for re-heaying it is insisted that the facts in the instant case are not. sufficiently like those in the case of Crosson . v. Lion Oil & Refining Co. to be entirely controlled . by it. It is pointed out that in the former case the oil had escaped from a pi'pe-line, finis indicating that it 'had previously been • reduced to possession, while here only a portion of the oil had been im*mnded- by the darn Or levee which the ownOr of the . well had built,'whereas the larger part of the oil escaping frOrn plaintiffs' well was never in:pounded by • the leiree but -was spread over a lthie territory by the force of the gas in the well which cau s ed it to run wild. It is the opinion of the majority—in which the writer does not concur—that no distinction is to be made be-•ween the oil 'that was impounded by the levee . and the balanee' of it which.escaped from plaintiffs' well without beirig ini.Pounded. • It was all plaintiffs' oil, and they had the right tO recoVer it from any one found in possession thereof, or to sue for its conversion anyone who had appropriated it. Tbis is true because plaintiffs by their efforts had brought the oil to the surface and had riot abandoned it, but, on the contrary, asserted their title
• at all times •to it, and they therefore have the •right to: recover the value ,Of . so much of the . oil escaping from their well as they can show was converted by appellees. The, petition for rehearing is therefore denied,. • •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.