Enders v. Sinclair Refining Co.

Fowler, J.

{dissenting). I am compelled to, dissent from the decision of the court. This court has accepted the proposition that a finding can rest upon a preponderance of probabilities. Vilter Mfg. Co. v. Industrial Comm. 192 Wis. 362, 212 N. W. 641; Pfister & Vogel L. Co. v. Industrial Comm. 194 Wis. 131, 215 N. W. 815. In the instant case, to my mind, the preponderance of probabilities clearly is that the contamination of plaintiffs’ well came from leakage from defendant’s storage tanks. It manifestly came from leakage of petroleum products somewhere. All possible sources of leakage are shown by the evidence. To my mind, from none of them but the defendant’s leaking tanks, and from all of them together but those tanks, is it probable or even possible that sufficient leakage occurred to have percolated the plaintiffs’ well and the three other contaminated wells in its vicinity, one one hundred fifty feet and two others each about one hundred feet away from it. Therefore, it is most probable, it is reasonably certain, that the contamination came from plaintiff’s leaking tanks. Upon no other hypothesis can the contamination be accounted for except that there is a reservoir of natural oil or a stratum of oil-bearing shale in the immediate vicinity, and it is a matter of common knowledge that no such depository of natural oil exists anywhere in the geological formations of this region. We must either conclude that the contamination of plaintiffs’ well came from defendant’s leaking tanks, or that his well is not contaminated because there is no possible source of contamination.

But the finding of the circuit judge need not rest wholly upon the above reasoning. A test hole was made twenty-five feet east of the test pit dug at defendant’s tanks. There is a well one hundred twenty-five feet or thereabouts west and slightly south of it, and another well three hundred feet directly west of it. None of these contained any trace of contamination. A test hole about two hundred feet to the west and somewhat north of the test pit, which was practically in line between the test pit and the contaminated wells, showed contaminated soil at bedrock like that at bedrock in plaintiffs’ well. The contamination first showed in plaintiffs’ well after leaking in defendant’s tanks had existed for some considerable time. It lessened on removal of the leaking tanks. It is true, as suggested in the opinion of the court, that there is no direct evidence of any fissure leading from defendant’s tanks to plaintiffs’ well. But that rock fissures exist in the limestone rock underlying the vicinity is proven by the testimony and undisputed, and is moreover a matter of common knowledge of intelligent people of the region. The testimony may not show it, but fissures can be seen wherever outcroppings of the strata of rock underlying the region appear, as the trial judge, resident of the region, doubtless .knows and as every intelligent person of the region must know. This and the fact of contamination support the inference of a connecting fissure, and in connection with the above amply support the conclusion of ultimate fact that the contamination comes from the leaking tanks.

Much stress is laid in the opinion of the court upon the fact that the colored water put into the pit did not show up in plaintiffs’ well. There are obvious reasons why it may not have done so. Fissures in limestone rock fill with earth and disintegrated rock and progress through a fissure is by percolation rather than flowing. The quantity of water put into the pit may have been insufficient to saturate the intervening soil; or the time may have been insufficient for it to reach the well by percolation; or the coloring matter may have been wholly absorbed by the soil, and the percolating water entirely freed from it before it reached the well; or the coloring matter may have spread in all directions and have been wholly absorbed by the pad of sand and gravel overlying the bedrock and never have reached the fissure that feeds the well. To my mind the fact that the color did not show up in the well is wholly inconclusive.

To my mind it seems that to reject the finding of the trial judge is to reject a common-sense inference. The situation is like that in E. L. Chester Co. v. Wisconsin Power & Light Co. 211 Wis. 158, 247 N. W. 861. An explosion occurred in a building. A gas main broke in the street adjacent. The explosion was simultaneous with the escaping gas. There was testimony of learned experts that the leaking gas could not have penetrated the soil between the main and the building within the time that elapsed between the breaking of the main and the explosion. Learned experts also testified that had the explosion been an explosion from gas ignition the fall of the building walls would have been inward instead of outward, or vice versa-. From this testimony the inference is plain that gas from the broken main did not cause the explosion. But to so find would have been contrary to common sense, and the finding of the jury was upheld. The finding of the trial judge should be upheld in this case for the same reason.

It is claimed by. the appellant that, the evidence does not support the award of damages, and that evidence was improperly received upon that issue. Under the decision of the court there is no need to consider these contentions. But to me it seems plain that the judgment of the circuit court should be affirmed or .a new trial ordered on the issue of damages.

The following memorandum was filed February 4, 1936: