ON PETITION FOR REHEARING
Counsel for plaintiffs in his argument in support of a petition for rehearing seems to think that we have not heretofore sufficiently discussed the points raised by him, although we did discuss the vital and controlling points in the case at considerable length — at greater length, perhaps, than the members of the bar generally, who continuously ask for short opinions, would approve. Counsel complains because we did not mention the fact that defendants took what counsel calls fixtures from the land, by which, we presume, he means some casing which defendants had put in the well, and which they removed when the well was abandoned. The only right that plaintiffs had in the land was to explore it for oil and gas and remove these minerals therefrom, if found; and it follows, of course, that they had no right in any fixtures on the land, and they could not complain of the removal of the casing from the well, unless the defendants thereby injured plaintiffs' oil and gas right. But, as pointed out in the original opinion, there was no evidence of such injury, sufficient to take the case to the jury. Nor do we see how plaintiffs can be held responsible, as counsel
claims they are, for the fact that defendants did not plug the well in accordance with the statutes of this state, and why, accordingly, the cost of plugging it in accordance with such statutes, if that should become necessary, should be awarded to plaintiffs. No duty in that respect on the part of the plaintiffs has been pointed out. And we cannot agree with counsel that the case should have been submitted to the jury on the question of damages for injury to the feelings of plaintiffs. No such damages are ordinarily allowable in a case like that at bar. 8 R.C.L. 528; 17 C.J. 836, and see Crawford v. Doggett, 82 Tex. 139, 17 S.W. 929, 27 A.S.R. 859; Chappel v. Ellis, 123 N.C. 259, 31 S.E. 709, 68 A.S.R. 822. Whatever exceptions there may be to the rule, it is clear that no such damages would be allowable in this case, since we held no punitive damages recoverable herein, and since there is no testimony in the record of any injured feeling, aside from what would naturally exist in any ordinary case of dispute or lawsuit between parties. Indeed, the amended petition herein fails to disclose that plaintiffs labored under any mental anguish on account of the trespass of defendants. Again, we did not, as counsel claims, disregard the rule that a question of fact should be left to the jury where the evidence in the case fairly permits different inferences to be drawn therefrom, but believed, as fully explained in the original opinion, that the trial court was justified in holding that the rule was not applicable in the case at bar because of the conjectural character of the evidence.
Counsel also claims that we were wrong in holding that each party should pay his own costs, and claims that under the holding of the case of Kiehl v. Holliday, (Mont.) 251 P. 527, he should have been allowed his costs. The Kiehl case was an action in trespass and the court held that plaintiff was entitled to recover his costs, and based its decision on the provision of a statute which allows costs to plaintiff "in an action for the recovery of real property or damages thereto." The words in italics are not in section 5917, W.C.S. 1920, which provides for costs for plaintiff in an action for the recovery of real property. The Montana case is not, accordingly, in point, and we see no reason for changing our conclusion on this point.
It is also claimed that we erred in not sending the case back for new trial. Judging from counsel's argument, he seems to have overlooked what we said on that point in the original opinion, and he has failed to notice the three Wyoming cases cited in support thereof. Since 1895, when Hecht v. Harrison, 5 Wyo. 279,40 P. 306 was decided, it has been the rule in this state that ordinarily, and except under certain circumstances which we do not think are applicable here, this court will not send a case back for new trial where, as here, plaintiffs have not sustained any actual damages and are entitled to nominal damages only. And that appears to be the universal rule. 4 C.J. 1179, 1180. We know of no special circumstances in this case that would warrant us in departing from that rule.
Counsel argues that plaintiffs paid $5,000 for the oil and gas rights; again, that it cost the defendants $25,000 to drill the well; that by these facts the rights of plaintiffs are shown to have had value. As to whether it is counsel's theory that plaintiffs ought to recover either of these sums instead of the amount claimed in the amended petition is not altogether clear. It is plain, however, that simply because plaintiffs paid $5,000, or any other sum, for their right, cannot be any criterion of value when, according to their own theory, it was proven that their right was in fact of no value. See 22 C.J. 180. And simply because defendants paid out the sum of $25,000 in drilling the well, mistakenly thinking that the money was well spent, surely would be no justification for penalizing them an additional $25,000 or any other sum, and this expenditure, made under these circumstances,
at least, could be no possible criterion of actual value.
Counsel for plaintiffs takes exception because we stated, in the original opinion, the theory of counsel for defendants as to the origin of the gas from the well and as to the origin of oil claimed to have been found in and about the well, and he claims that this casts a discredit upon his clients, which we do not think is true, or which is at least doubtful. The exception taken by counsel is somewhat novel and surprising, particularly in view of the extreme and often unwarranted liberties in which attorneys in a case frequently indulge, as counsel for plaintiffs well knows. We are not responsible for the various positions which counsel in a case may take. But in order to discuss a case understandingly, and make our opinions of future benefit, if possible, it would seem clear that we should be able to freely state the various theories adopted by the respective counsel in a case, even though that might, perchance, entail a discredit on one of the parties, and we think that counsel for plaintiffs, upon further reflection, would hardly want to deny us that right. The case at hand is an important and interesting one, and we have given it the careful and thoughtful consideration which it deserves, but we see no reason for a rehearing, which is, accordingly, denied.
Rehearing Denied.
POTTER, J., and KIMBALL, J., concur.