Midland Oil Co. v. Thigpen , 4 F.2d 85 ( 1924 )

PHILLIPS) District Judge.

A. J. Thigpen and A. J. Thigpen, Jr., members of a copartnership, hereinafter called plaintiffs, brought this action against Midland Qil Company, 'hereinafter called Midland Company, and Fred 0. Davis, to recover 'damages for alleged injuries to cattle owned by the copartnership.

The Midland Coinpany was the owner of a departmental oil and gas lease dated January 24, 1916, running from the Osage Tribe of Indians to the Midland Company, and covering the N. E. % of section 17, township 24 N., range 9 E‘.

Paragraphs 16, 19, and 20 of the lease read as follows:

“16. This lease is subject to the regulations now or hereafter prescribed by the Secretary of the Interior, relative to such leases, all of which are made a part of this lease: Provided, that no regulations made after the approval of this lease' shall operate to affect the term of lease; rate of royalty, rental or acreage, unless agreed to by both parties.”

“19. Assignment of this lease or any interest therein may be. made with the approval of the Secretary of the Interior and not otherwise.

“20. Each and every clause and covenant of this indenture shall extend to the heirs, executors, . administrators, successors, and lawful assigns of the parties hereto.?'

, Sections 21 and 61 of the Regulations of the Secretary of Interior, approved August 26, 1915, read as follows:

“21. Approved leases or any interest therein may be sublet, transferred, or assigned with the consent and approved of the Secretary of the Interior, and not otherwise. Subleases, transfers, or assignments, when so approved, shall be subject to the terms and conditions of the original leases and the regulations under which such leases were approved, as well as to such additional requirements as the Secretary of the Interior may prescribe. The sublessee, transferee, or assignee shall furnish with his sublease, transfer, or assignment a satisfactory bond as hereinbéfore prescribed in connection with leases.

“Any attempt to sublease, transfer, or assign an approved lease or any interest therein without the consent and approval of the Secretary of the Interior shall be absolutely void and shall subject the original lease to cancellation in the discretion of such Secretary.”

' “61. All B-S or water from tanks or wells shall b.e drained off into proper receptacles located at a safe distánee from tanks, wells, or buildings, to the end that same may be disposed of by being burned or transported from the premises.

“Where it is impossible to burn the B-S; or where it is necessary to pump salt water in such quantities as would damage the surface of the leased land or adjoining property, or pollute any fresh water, the lessee shall notify the superintendent who shall give instructions in each instance as to the disposition of such B-S or salt water.”

Section 45 of the Regulations of the Secretary of Interior approved August 26, 1915, as amended May 13, 1919, reads as follows:

“45, as amended May 13, 1919. — Lessee shall provide two properly prepared slush pits, into one of which he must deposit sand pumpings and other materials extracted from the well during the process of drilling, but other material as is suitable for the mudding of a well shall be run into the other pit. The construction of such pits shall be subject to the approval of the inspector. Sand pumpings and such materials shall not be allowed to .run over the surface of the land.”

The plaintiffs were the owners of three agricultural leases, running from members, of the Osage Tribe to'the plaintiffs, covering lands located in sections 17, 18, and 19, township 24 N., range 9 E., and lying adjacent to the tract of land covered by the oil and gas lease.

The oil and gas lease required the Midland Company to drill a well on the leased premises to the Mississippi lime unless oil or gas should be found in commercial quantities at a Ifesser depth.

On November 28, 1919, the Midland Company entered into a contract with its eodefendant, Davis. This contract described the above-mentioned oil and gas lease, and recited that the Midland Company was the owner of mining leases covering adjoining lands, and was desirous of having the same tested for oil production, and provided:

“That for and in consideration of the sum of one ($1.00) dollar by the second party (Midland Company) to the first party (Davis) paid, the receipt of which is hereby acknowledged, and of the terms, covenants, agreements and conditions hereof, the party of the first part agrees to drill a well on the land hereinbefore specifically described at a proper location offsetting land held under lease by second party adjoining the same, in a proper manner and with due diligence, at his own costs and expenses, with proper tools and equipment, furnishing all the labor, tools, material, fuel, water and equipment, and to commence the drilling thereof within thirty (30) days from the delivery of the parts hereof, duly approved by the Secretary of the Interior, and to prosecute the drilling thereof with due diligence to a depth of 'three [ ] (300) feet in'-the Mississippi lime, unless the drilling thereof is ordered stopped at a lesser depth by the superintendent of the Osage Indian Agency or other proper representative of the Interior Department of the United States, and to fully comply with the terms, covenants and provisions of said lease in so doing and with the requirements of the rules and regulations heretofore promulgated by the Secretary of the Interior, now in force, governing drilling operations in the Osage Indian Reservation and those that may hereafter be promulgated by said Secretary, and with the rules and reglations heretofore or hereafter promulgated by the Corporation Commission of the state of Oklahoma. * * *

“The party of the second part, in' consideration of said drilling, agrees to execute and deliver to thé party of the first part, upon the completion of said well, as aforesaid, an assignment of said lease hereinbefore specifically described. * * * ”

It further provided: That Midland Company should pay the rentals on the oil and gas lease falling due prior to the completion of the well and that Davis should reimburse it therefor on the execution and delivery of the assignment'; that upon the failure of Davis either to commence the well within the time fixed by the contract ,or to prosecute the drilling thereof with due diligence, his rights under the contract should terminate; and that Davis should not acquire any interest in the lease until the assignment above referred to had been executed and delivered with the approval of the Secretary of the Interior.

This contract was approved by S. G. Hopkins, Assistant Secretary of the Interior.

Davis entered into a contract with one Martin, a drilling contractor, to drill the oil well. This contract provided that Davis should construct the derrick, rig, and slush ponds, and that Martin should furnish the tools and other equipment and drill the well at a certain price per foot. Davis constructed the derrick, rig, and one slush pond.

On February 10, 1920, Martin began the drilling of an oil well on the lease. About February 29, 1920, he encountered salt water; he bailed out about 75 barrels of the salt water and deposited same in the slush pond. This amount more than filled the slush pond and about 50 barrels of the salt water escaped and ran down Into a creek which runs through the lands of plaintiffs. The cattle of plaintiffs drank this water, with the resultant injuries for which damages are sought in this action.

The Midland Company had nothing whatever to do' either with the construction of the slush pits, the drilling of the oil well or the permitting of thq salt water to escape. The alleged wrongful acts complained of were caused wholly by Davis and his drilling contractor, Martin.

The cause of action set up in plaintiffs’ amended petition sounded in tort. Plaintiffs alleged therein-, in effect: That the Midland 'Oil Company and Davis were guilty of negligence, in that they failed to comply with the rules and regulations of the Department of the Interior,- the laws of the state of Oklahoma, and the regulations of the Corporation Commission of the state of Oklahoma with respect to providing slush ponds for the purpose of catching salt water and other poisonous substance coming from the oil well, and in that they negligently permitted salt water and other poisonous matter coming from the pil well to escape and flow down onto the -lands leased by plaintiffs; and that as a result of the negligent acts of the Midland Company and Davis, plaintiffs were damaged in the particulars set but in their amended petition.

The trial resulted in a 'verdict for the plaintiffs in the sum of $4,292. Judgment was entered on the verdict and the Midland Company sued out a writ of error therefrom to this court.

At the trial the court instructed the jury in part as' follows:

“At the outset, you are instructed that the defense is not available to the company that it was relieved of liability by the fact that Davis was an independent contractor. The leases to the company and the regulations of the Interior Department were such that the company and Davis, and each. of them, are responsible for the acts and omissions of Davis, and the agents, employees, and servants engaged in the drilling of the well and- taking part in the construction and- maintenance ' of the" slush ponds used for the deposit, of waste products including salt water, drawn from the well. * * *

“But'the defendant oil company and defendant Davis had no right-to construct or maintain or cause or permit persons employed at the well to construct or maintain ponds in such a way that the salt water -would escape and enter the plaintiffs’ cattle water supply. It was the .duty of the defendants to so construct and maintain the ponds that salt water would be effectively confined therein, and this was an absolute requirement of the jaw.”

The Midland Company duly excepted to this instruction. It requested the court to instruct the jury that if Davis drilled the oil well in question under the authority given him by the contract with Midland Company dated November 28, 1919, and the Midland Company did not participate in the drilling thereof or direct or control the work of drilling, the jury should not return ,a verdict against the defendant, Midland Company. The court refused to instruct the jury as requested and Midland Company duly excepted.

1. Counsel for plaintiffs contend that the provisions of the lease and the regulations promulgated by the Secretary of the Interior which by reference were made a part of the lease, imposed a positive duty upon the Midland Company which it could not avoid by-entering into the contract with Davis, and that the violation thereof by Davis or his drilling, contractor rendered the Midland Company liable for the damages to the cattle of plaintiffs.

Whether or not an action could be maintained against Midland Company for a breach of the covenants of the -lease, either by the lessor, or by the plaintiffs upon the theory that certain covenants of the lease were made for their benefit, is not before us. As above stated, the action sounded in tort. It was predicated upon alleged negligence. Upon that theory, it was presented both to the trial court and to this court. Therefore,- the liability of the Midland Company to plaintiffs,, if any, must be based upon the breach of a legal duty to plaintiffs imposed by law upon the Midland Company.

At the outset it is important that we determine the relation of Midland Company, Davis, and plaintiffs to, the lease, to the leased premises, and t.o each other, at the time the wrongs complained of were committed.

Clearly plaintiffs were strangers to the lease, to the demised premises, and to Midland Company and- Davis. They were occupiers of adjoining property.

Paragraph numbered 19 of the lease provided that the lease, or any interest therein, might be assigned with the approval of the Secretary of the Interior. The regulations provided that the lease, or any interest therein, might be sublet, transferred, or assigned, with the consent and approval of the Secretary of the Interior, and that subleases, .transfers, or assignments when so approved should be subject to the terms and conditions of the original lease and the regulations under which such leases were approved, as well as to such additional requirements as the Secretary of the Interior might prescribe. Midland Company covenanted to assign the lease to Davis on the performance by him of certain things set out in the contract, namely, the commencement of the drilling of an oil and gas well on the lease within the time specified in the contract and the prosecution of the drilling thereof with due diligence. The contract would have been the same in legal effect if the Midland Company had agreed to assign the lease to Davis at a futuro date upon the payment by him on such date of a stipulated cash consideration. It was an executory contract to assign the lease. It gave to Davis the equitable title to the lease. It did more, it placed Davis in possession and gave him the right and imposed upon him the duty to perform the covenants of the lease with reference to the drilling of the well and to reimburse Midland Company for rentals paid by it in the meantime. From the date of the execution, delivery and approval of this contract, Midland Company had no longer the right nor was it in position to drill the oil well. There was no interest left in Midland Company except the legal title to the lease. Davis held the equitable title subject to the condition that it might be defeated upon his failure either to commence within the time specified the drilling of the well or to prosecute the drilling thereof with due diligence. The language of the 0 contract that Davis should acquire no interest in the lease until the execution and delivery of the formal assignment must be read in the light of the other portions of the contract which clearly passed the equitable title, and when so construed must be held to mean that Davis would not acquire the legal title until the execution and delivery of the assignment. Plaintiffs in their amended petition alleged: “ * * * Davis is the owner of an interest in and to said leasehold, under and by virtue of” the contract entered into between Midland Company and Davis. Davis therefore acquired by this contract an interest in the lease, to wit, an equitable assignment thereof with the right to the control and possession of the leased premises, and upon completion of the oil well, to receive the formal assignment and the full benefit of any oil discovered and developed on the properly.

After the execution of the contract Midland Company did not retain either possession or control of the leased premises. The same passed to Davis, and at the time of the commission of the wrongs complained of Davis was the occupant in full control thereof.

Davis having possession and control of the leased premises his relation thereto was substantially the same as it there had been an absolute assignment of the lease. Tie was a tenant in possession. See 1 Tiffany on Landlord and Tenant, § 158, p. 974, and section 65, pp. 379 to 381, inclusive.

Upon the assignment or sublease by the original lessee and the entry into possession and control of the leased premises by the assignee or sublessee, the original lessee stands in a position similar to a lessor, and Ms duties and responsibilities to third persons are no greater than that of a landlord. Note, 92 Am. St. Rep. 507; Miller v. McElin et al., 208 Ill. App. 605; Kilroy v. City of St. Louis et al., 242 Mo. 79, 145 S. W. 769, 772; Borman v. United Merchants’ Realty & Improvement Co., 264 Pa. 150, 107 A. 682; Clancy v. Byrne, 56 N. Y. 129, 15 Am. Rep. 391; Kelly v. United Cigar Stores Co. (Sup.) 170 N. Y. S. 933.

From the foregoing we conclude that the relation of Midland Company was that of lessor or landlord, and Davis that of equitable assignee in lawful possession and control of the leased premises.

First, then, did the covenants of the lease impose a legal duty on Midland Company so that a breach thereof by Davis gave rise to a cause of action in tort against Midland Company in favor of plaintiffs? A somewhat similar question came before the Supreme Court of Iowa in the case of Willis v. Snyder, 190 Iowa, 248, 180 N. W. 290. In that ease, the plaintiff, a licensee of the tenant of a dwelling house, brought an action against the landlord, who had covenanted in his lease to keep the premises in repair and suitable for use, for personal injuries alleged to have been caused by the •negligent failure of the landlord to repair the steps leading from the front poreh to the walk or ground below. The court said :

“The allegations of negligence are based upon the failure of the landlord to repair the steps within a reasonable time after express notice thereof had been given Mm by the tenant. Counsel’s principal reliance is upon Flood v. Pabst Brewing Co., 158 Wis. 626, 149 N. W. 489, L. R. A. 1916F, 1101; Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289; Frischberg v. Hurter, 173 Mass. 22, 52 N. E. 1086. In so far as these cases sustain a recovery based upon tort for damages resulting to a tenant 'because of the failure of the lessor to maintain the premises in repair as agreed in the lease, they are opposed to the overwhelming weight of authority. Hill v. Day, 108 Me. 467, 81 A. 581, Ann. Cas. 1913C, 971; Anderson v. Robinson, 182 Ala. 615, 62 So. 512, 47 L. R. A. (N. S.) 330, Ann. Cas. 1915D, 829; Glynn v. Lyceum Theater Co., 87 Conn. 237, 87 A. 796; Cromwell v. Allen, 151 Ill. App. 404; O’Neil v. Brown, 158 Ky. 118, 164 S. W. 315; Korach v. Loeffel, 168 Mo. App. 414, 151 S. W. 790; Kohnle v. Paxton, 268 Mo.-463, 188 S. W. 155; Davis v. Smith, 26 R. I. 129, 58 A. 630, 66 L. R. A. 478, 106 Am. St. Rep. 691, 3 Ann. Cas. 832; Dustin v. Curtis, 74 N. H. 266, 67 A. 220; Miller v. Rinaldo, 21 Misc. Rep. 470, 47 N. Y. S. 636; Shackford v. Coffin, 95 Me. 69, 49 A. 57.”

In the case of Dustin v. Curtis, 74 N. H. 266, 67 A. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169, the New Hampshire court, in a well-reasoned opinion touching this question, said:

“The plaintiff claims' that he was there as the tenant, or as a guest of the tenant. It is doubtful whether the evidence is sufficiently definite to warrant either conclusion; but if we assume that the plaintiff was present as a tenant, that one of the terms of the tenancy was that the defendant should make, all necessary repairs, and that the plaintiff’s injury was due to the defendant’s omission to repair, it does not follow that this action of tort for negligence can be maintained against' the defendant because of her omission in this respect, unless her failure resulted in the breach of a duty imposed by law, as well as -the breach of an obligation created by the agreement- of the parties. * --* * -

“In Courtenay, v. Earle, 10 C. B. 73, Jervis, C. J., in speaking of the case of Boor-man v. Brown, 3 Q. B. 511,. said: ‘That case will-be found to proceed upon the principle that, where there is an. employment-which employment itself creates a' duty, an action on the case will lie for a breach of that duty, although it may consist in doing something contrary to an agreement made in the course of such employment by the party upon whom the duty is cast. * * * Before that case it had been supposed, upon the authority of Corbett v. Packington, 6 B. & C. 268, that the violation of a bare' promise, without any such general duty, might be the subject of an action of tort. That clearly is not so. • Without altogether destroying the well-known distinction between actions of contract and actions of tort, I think we cannot hold the counts in this declaration to be well joined.’ In Legge v. Tucker, 1 H. & N. 500, Pollock, C. B., in stating thp distinctiofi between actions of contract and actions of tort, said: ‘When the foundation of the action is a contract, in whatever way tlie declaration is framed, it is an action of assumpsit; but when there, is a duty ultra the contract, the plaintiff may declare in ease.’ And in Tattan v.. Railway,. 2 E. & E, 844, Coekburn, C.-J., in considering the subject, said: ‘Whatever may be the distinction between an obligation arising out óf a contract and a duty imposed by the common law on persons entering into a contract, it is impossible to refer to the cases to which our atteniión has been called, without seeing that they establish that a duty was imposed upon the defendant (common carriers) * * * by'the custom of the realm so soon as they entered into the contract with the plaintiff, and independently of the terms of the contract itself. The plaintiff might, had he thought fit, have brought his action on the contract; but he was also entitled to sue the defendants for the breach of their common-law duty. Having chosen the latter course, he cannot, according to the authorities, be said to have brought an action of contract. * * * The action is an action on the case, not in form only, but in substance.’ See, upon the same subject, Tuttle v. Company, 145 Mass. 169, 13 N. E. 465; Rich v. Railroad, 87 N. Y. 382; 1 Ch. Pl. (16th Am. Ed.) 196.

“In accordance with the foregoing- au-; thorities, it may be stated as a principle of law that, where the only relation between the parties' is contractual, the liability of one to the other in an action of tort for negligence must be based upon some positive duty which the law imposes, because of the relationship, or because.of the negligent manner in which some act which the contract provides for is done; and that the mere violation of a contract, where there is no general duty, is not the basis of such an action. This being so, and the relation between the parties to this suit being that of landlord and tenant, and it having been decided in Towne v. Thompson, 68 N. H. 317, 44 A. 492, 46 L. R. A. 478, that no duty is* imposed by law upon a landlord to make repairs upon leased premises for the benefit of his tenant or a member of the tenant’s family, it follows that the present action cannot be maintained because of the mere failure of the defendant to keep her agreement to repair. In fact, it is generally held that a tenant, a member of his family, or his guest, cannot sue a landlord in tort for personal injuries due to his omission to repair premises which have passed into the possession and control of the tenant, oven if the landlord has agreed to make repairs. Shackford v. Coffin, 95 Me. 69, 49 A. 57; Tuttle v. Company, 145 Mass. 169, 13 N. E. 465; Davis v. Smith, 26 R. I. 129, 58 A. 636, 66 L. R. A. 478, 106 Am. St. Rep. 691; Schick v. Fleisehauer, 26 App. Div. 210, 49 N. Y. S. 962; Frank v. Mandel, 76 App. Div. 413, 78 N. Y. S. 855; Stelz v. Van Dusen, 93 App. Div. 358, 359, 87 N. Y. S. 716; Rushes v. Ginsberg, 99 App. Div. 417, 91 N. Y. S. 216; Sherlock v. Rushmore, 99 App. Div. 598, 91 N. Y. S. 152; Boden v. Scholtz, 101 App. Div. 1, 91 N. Y. S. 437; Feary v. Hamilton, 140 Ind. 45, 39 N. E. 516; 1 Mc Ad. L. & T. 438; Jones, L. & T. § 592; 18 Am. & Eng. Enc. Law (2d Ed.) 231, 234; 24 Cyc. 1115.”

We therefore conclude that the breach of ■the covenants of the lease did not give rise to an action in tort in favor of the plaintiffs.

Second. Is the Midland Company responsible to plaintiffs for the negligence upon or misuse of the property by Davis and his drilling contractor, Martin?

A tenant or occupant of premises having the entire control thereof is, so far as third persons are concerned, the owner. 16 R. C. L. p. 1095, § 613; City of Lowell v. Spaulding, 4 Cush. (Mass.) 277, 50 Am. Dec. 775; Maloney v. Hayes, 206 Mass. 1, 91 N. E. 911, 28 L. R. A. (N. S.) 200.

The relation of landlord and tenant in itself involves no idea of representation or of agency. It is a relation existing between two independent contracting parties. The landlord is not responsible to third persons for the torts of his tenant. In Norton v. Wiswall, 26 Barb. (N. Y.) 618, it was sought to make the proprietor of a ferry responsible for the wrongful act of the servant of the lessee of the ferry. In that case the court said:

"Where one is the master or principal of another, he is responsible for his acts within the scope of his employment, because, he has conferred authority upon the latter to do the act, and because ho has the power and the legal right to control hi? conduct. Where one is the partner of another, he is liable for his acts within the scope of the partnership, because he has agreed to be so, and because the very nature and object of this relation imply that each acts with the authority and assent of the other. But where the parties stand towards each other simply in the light of contracting parties, having no relation towards each other which draws into operation the principle of agency, the rule does not apply. Such is the condition of lessor and lessee. The lessee, for the time being, takes the place and assumes the duties and obligations of the lessor. He is a substitute for the lessor. He acts independently of him. He cannot be controlled by him. He has an agreement under which, in consideration of a stipulated compensation, he is, for the time being, elothed with the rights and responsibilities of the lessor. The lessee of a house or a farm is, during the continuance of the lease, owner — at least quasi owner. He has the. rights of owner. The lessor cannot, without his consent, set foot upon the premises. The lessee of a ferry has similar and equal rights. By the very terms and legal effect of the lease the lessor is displaced from the possession and temporary ownership of the ferry. He cannot run it; He cannot control it. He cannot give directions in regard to it. He has no more rights in regard to it than a third person. To attempt to take possession or to exercise control, or to give directions, would be to make him a usurper, an intruder — a trespasser. How then can he be liable for the acts of the lessee? The servants of the lessee are not his servants. He cannot control them. He cannot give them orders which they are bound to obey. They owe no allegiance or service to him. Having no power over them, and having conferred no authority upon them, he is not responsible for their aets. He stands in no relation to them which - makes applicable to him the maxim 'respondeat superior.’ ”

In order to make the landlord liable to the owner or occupant of adjoining property for injuries caused by the improper use of the demised premises by his tenant, the nuisance causing such injuries must necessarily result from the reasonable, ordinary and expected use of them by the tenant, or from the purpose for which they were leased, and if the use of the premises by the tenant may or may not become a nuisance according as the tenant exercises ordinary care, or uses the premises negligently, the tenant alone is liable. The landlord will not be liable for injuries caused by the misuse of the premises by the tenant merely beeau'se there was a manifest possibility of their being used in such a way. 16 R. C. L. p. 1074, § 593; note, 92 Am. St. Rep. 524; Maenner v. Carroll, 46 Md. 193; Wood on Landlord & Tenant (2d Ed.) § 536; Langabaugh et al. v. Anderson, 68 Ohio St. 131, 67 N. E. 286, 62 L. R. A. 948; Murray v. McCormick et al. (Spring field Court of App., Mo.) 282 S. W. 733; Pennington v. Klemanski, 278 Pa. 591, 123 A. 491; Meyers v. Pepperell Mfg. Co., 122 Me. 265, 119 A. 625; Rice v. White et al. (Mo. Sup.) 239 S. W. 141; Shellman et al. v. Hershey et al., 31 Cal. App. 641, 654, 161 P. 132; Baker v. Allen, 66 Ark. 271, 50 S. W. 511, 74 Am. St. Rep. 93; Murray v. Richards, 1 Allen (83 Mass.) 414; Todd v. Collins, 6 N. J. Law, 127; Ferguson v. Hubbell, 26 Hun, 250; Edgar v. Walker, 106 Ga. 454, 32 S. E. 582; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 15 N. E. 84, 4 Am. St. Rep. 279; Gardner v. Rhodes, 114 Ga. 929, 41 S. E. 63, 57 L. R. A. 749; Metropolitan Savings Bank v. Manion, 87 Md. 68, 39 A. 90.

In Maenner v. Carroll, supra, the court-said:

“If a landlord demise premises which are not in themselves a nuisance, but may or may not become such, according to the manner in which they are used by the tenant, the landlord will not be liable' for a nuisance created on the premises by the tenant. He is not responsible for enabling the tenant to commit a nuisance, if the latter should think proper to do so [citing Owings v. Jones, 9 Md. 108; Rich v. Basterfield, 4 Com. B. 805, 56 Eng. Com. L. 782], In such case it may be said, in one sense, that the landlord permitted the tenant to create the nuisance, but not in suck sense as to render him liable.”

In Langaba-ugh et al. v. Anderson, supra, the plaintiff brought an action against the lessor and lessees in an oil and gas lease to recover for the burning of plaintiff’s building on a lot adjoining the leased premises through the alleged negligence of the lessees, whereby oil escaped from a tank on the leased premises; and flowed under the building and thence down the slope of a hill to a creek, where it came in contact with a Are, which followed back the track of the oil and burned plaintiff’s building. The lessor had leased her premises for the purpose of producing oil or gas therefrom, reserving to herself one-eighth of the oil produced, delivered in tank or pipe lines. She reserved' no control or right to direct the manner of drilling or of the erection of-tanks on the leased premises, but surrendered complete possession and control thereof to the'lessees during the term of the lease. The. court in holding that the lessor was not liable said:

“Merely permitting another to -commit a nuisance does not render one liable for its consequences. Wood on Landlord & Tenant (2d Ed.), in section 536, sums up a discussion of the liability of the landlord as follows: ‘The rule may be stated, as the result of the authorities, to be that, in order to charge the landlord, the nuisance must necessarily result from the ordinary use of the premises by the tenant, or for the purpose for which they were let; and where the ill results flow from the improper or negligent use of the premises by the tenant, or, in other words, where the use of the premises may or may not become a nuisance, according as the tenant exercises reasonable care, or uses the premises negligently, the tenant alone is chargeable for the damages arising therefrom.’ We have observed that the storage of crude oil is not of itself a nuisance to adjacent or adjoining premises; and if the lessor even knew that oil would be produced by drilling and stored on the leased premises, she would not be contemplating the creation or maintenance'of a nuisance, unless she also knew that it would be negligently stored and cared for by the lessees, aid it cannot be held as a matter of law that the lessor should -presume that the lessees would be negligent in that behalf.”

In Miller v. MeElin, supra, the court, said :

“As to third persons and the public generally, they [the original lessees], as owners of .the term, could put somebody else in possession, control and occupancy as tenant and free themselves from liability for his negligence on the same principle and to the same extent that any owner of an interest in land may in that manner do. * * * She [appellant] also says where the land-' lord has leased the premises from which the overflow originated, the tenant, being the one entitled to possession and control, is liable for the negligent use of such premises, citing Chicago Tel. Co. v. Commercial Union Assur. Co., 131 Ill. App. 248, and Lederer v. Fox, 151 Ill. App. 300. This is a correct statement of law applied to negligence in earing for a water pipe and to many other acts of negligence of tenants as will appear by reference’ to Thompson on Hegligence (2d Ed.) § 1154 et seq. It applies not only as between the owner of the fee and his tenant but also to subletting, notwithstanding, a contract duty of the sub-lessor to his landlord to keep the premises in repair. Id. 1161. The owner is not liable for nuisances created during the term of the lease. Id. 1162. It is not a question of title but of legal occupancy and control. Id. 1166. If appellees had put some other man in possession as a tenant it would hardly be conceived that because they were owners of an estate for years they were more liable than if they had owned the fee. We see no difference in principle.”

In the case of Murray v. McCormick et al., Springfield Court of Appeals, supra, the owner of a tract of agricultural land leased it to a tenant. The land was planted to wheat. The tenant employed one McCormick to thresh the wheat. The engine of the threshing outfit was placed in close proximity to the house of plaintiff on an adjoining tract of land. It had no proper spark arrester. Sparks escaped, set on fire, and burned the household goods of the plaintiff. The plaintiff brought an action against the owner of the land to recover damages upon the theory that the same were caused by a nuisance existing on the latter’s property. The owner of the property had no control over the placing or management of the engine. The court held the owner not liable, and, after citing ipany authorities, said:

“From these authorities we can declare the rule to be that, where land is leased for a certain use, from which, use a nuisance will naturally arise, the landowner will be liable to strangers who are injured by such nuisance necessarily arising from the contemplated use; but if the nuisance does not • necessarily arise from such contemplated use, but through the manner in which the lessee uses it, the landowner will not be liable in damages to ^strangers.”

We therefore conclude that Midland Company was not liable for the improper or negligent use of the leased premises by Davis.

2. Counsel for plaintiffs further contend that the regulations promulgated by the Secretary of the Interior, section 7969, Comp St. Okl. 1921, and rule 25 of the regulations of the Corporation Commission of the state of Oklahoma imposed certain legal' duties upon the Midland Company which continued after the contract between Midland Company and Davis, and that the wrongful acts of Davis and his drilling contractor constituted a violation thereof rendering the .Midland Company liable to plaintiffs. In our opinion the regulations of the Secretary of the Interior were not intended to apply to the Midland Company after it had assigned the lease. By the express terms of the > lease and regulations, upon the execution, approval and delivery of a sublease, transfer or assignment, the regulations became binding upon, and the duties imposed thereby devolved upon, the successor of the lessee. The lease obligated, not the Midland Company solely,., but either the Midland Company or its assigns, to drill the well in accordance with the terms of the lease and the regulations. By the assignment Davis acquired an interest in the lease and covenanted to drill the well. Upon the approval of this assignment by the Secretary of the Interíór, the terms of the original lease and the regulations became binding upon Davis, and as contemplated by the Secretary of the Interior when he framed the regulations and the original parties to the lease when they executed the same, the duty of drilling the well devolved, not upon the Midland Company, but upon Davis, its assignee. Under such circumstances we do not believe these regulations were intended to bind cumulatively each succeeding owner of the lease or to create a cumulative liability. They were rather intended to operate upon the person who owned the lease or an interest therein and who actually developed and operated the same whether he be lessee, sublessee, transferee or assignee. They do not fall within the class of statutes enacted for the protection of the general public and which impose primary and nondelegable duties.

The Oklahoma statute above referred to reads as follows:

“No inflammable product from any oil or gas well shall be permitted to run into any tank, pool or stream used for watering stock; and all waste of oil and refuse from tanks or wells shall be drained into proper receptacles at a safe distance from the tanks, wells or buildings, and be immediately -burned or transported from the premises, and in no case shall it be permitted to flow over the land. Salt water shall not be allowed to flow over the surface of the land.”

This is a penal statute. Midland Company had nothing whatever to do with the drilling of the oil well or the permitting of the salt water to escape. Clearly, a violation of this statute by Martin, the drilling contractor, was not a violation thereof by Midland Company. By invoking this statute plaintiffs attempt to hold Midland Com>pany for a tortious act, to the commission of which it was in no way a party.

Rule 25 of the Corporation Commission reads as follows:

“Fresh water, whether above or below the surface, shall be protected from pollution, whether in drilling or plugging.”

' There is nothing in the regulation of the Corporation Commission to indicate an intent to make the same applicable to an owner who has leased and surrendered control and possession to his tenant or to a lessee who has assigned or sublet and surrendered' control and possession to the assignee or sublessee. To so hold we would have to read into the regulation language not contained therein.

We therefore conclude that . the Midland Company violated no legal duty imposed upon it by law in favor of the plaintiffs, and that no cause of action in tort ever accrued to plaintiffs as against the Midland Company.

It follows that the court erred in its instructions to the jury above set out, and in failing to give the instruction requested by the Midland Company. The cause is reversed, with instructions to grant Midland Company a new trial; and it is so ordered.