Larkins-Warr Trust v. Watchorn Petroleum Co. , 198 Okla. 12 ( 1946 )

I agree with the law stated in paragraph 1 of the syllabus of the majority opinion if nonnegligence of the operating defendant, as a fact, could be accepted for the rule of law.

In the Hoke Case (Oklahoma City v. Hoke, 75 Okla. 211,182 P. 692), relied upon, it was ruled:

"The defendant cannot certainly escape liability for its acts, when in the abatement of a nuisance it creates a condition which in effect is a nuisance as to the plaintiff," but for its "act which results in damages to third persons . . . it will be liable".

The majority say: "Defendants do not deny that this water did this injury to plaintiffs". Plaintiffs sought recovery for damages upon two causes of action, one was negligence, the other trespass. The jury resolved the former in favor of defendants. The trial court declined to submit to the jury plaintiffs' second cause of action, but thereon directed a verdict for defendants.

The general rule of law is that, irrespective of negligence, a person is bound to so use his own property as to save from injury and damage that of another. 1 Am. Jur. 504, 52 Am. Jur. 835. Sic utere tuo ut alienum non laedas.

The issue whether, in a hazardous undertaking, liability which ensues from a harm that befalls all similarly situated is a delicate one. According to local law, Const., sec. 23, art. 2, 76 Ohio St. 1941 § 1[76-1], codifying the common law as to torts, I think the issue was one for a jury to determine by verdict whether plaintiffs were entitled to recover from defendants, damages for injury to them, proximately caused by a physical invasion or trespass in or upon plaintiffs' land, whether resulting from negligence constituted of act of omission, or commission, or otherwise. I cannot conclude that the plaintiffs' second cause of action presented a case of damnum absque injuria.

A private corporation or person has no more right than a municipal corporation, in abating a nuisance, to take or damage the property of another without making payment by just compensation. Oklahoma City v. Hoke, supra; Oklahoma City v. Vetter, 72 Okla. 196, 179 P. 473. "An act which results in a trespass upon and the actual injury or destruction of the property of a citizen is . . . the taking of such property, at least pro tanto." Town of Southeast v. City of New York, 89 N.Y.S. 630. This, the constitutional provision in Oklahoma settles by requiring redress for private property either taken or damaged. ". . . no one is permitted to sacrifice his neighbor's property in order to protect his own". Gulf, C. S.F, Ry. Co. v. Richardson, 42 Okla. 457, 141 P. 1107. Except in such manner as may be prescribed by law, "No private property shall be taken or damaged for private use . . without compensation . . ." Section 23, art. 2, Const. of Okla. Thus, by fundamental law, an owner is afforded protection against an invasion of damage to his freehold.