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[W] Union Pacific Resources Company v. Cooper11/27/2002
OPINION WITHDRAWN and new opinion filed January 22, 2003.
UNION PACIFIC RESOURCES COMPANY, APPELLANT
v.
EUGENE H. COOPER AND WIFE, MARJORIE ANNE COOPER, APPELLEES
APPEAL FROM THE 402ND JUDICIAL DISTRICT COURT OF WOOD COUNTY, TEXAS
Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.
The opinion of the court was delivered by: Jim Worthen Justice
Union Pacific Resources Company ("UPRC") appeals the trial court's judgment entered in favor of Eugene H. Cooper and wife, Marjorie Anne Cooper (collectively the "Coopers"), who were awarded $85,000.00 in damages for their nuisance claim. UPRC raises seven issues on appeal. We reverse and render.
Background
On January 30, 1998, the Coopers executed an oil, gas and mineral lease to Bayou Black Royalty Company ("Bayou Black") on a fifty-acre tract, which included the Coopers' home. Bayou Black later assigned this lease to UPRC.
In April 2000, UPRC applied with the Texas Railroad Commission ("TRC") to drill the Whitetip Well No. 1 ("the well"). All of the Coopers' mineral interest was part of a pooled unit. The well was to be drilled on an adjoining landowner's property within the pooled unit approximately seven hundred feet from the Coopers' home. The record reflects that it was common in the area to encounter hydrogen sulphide gas ("sour gas") when drilling at depths between fifteen and seventeen thousand feet. Sour gas is poisonous and can cause death to people who come into contact with it. Following incidents of death caused by sour gas, the Texas Railroad Commission promulgated its statewide Rule 36 ("Rule 36"). Rule 36 requires a company which might encounter sour gas in drilling a well to develop an evacuation plan for members of the general public who are located within a certain radius of the well. The Coopers' home fell within this radius established by Rule 36.
UPRC retained Denmon H2S Safety Services, Inc. ("Denmon") of Tyler to develop a comprehensive contingency plan should sour gas be encountered during the drilling of the well. In developing this contingency plan, a Denmon employee, Bill Rittenberry ("Rittenberry"), visited the Coopers' home on May 10, 2000. Rittenberry testified that he explained to the Coopers the necessity of an evacuation in the event that sour gas was encountered and how this evacuation would be effectuated. Following Rittenberry's visit to the Coopers and others who might be evacuated, Denmon filed an evacuation plan with the TRC. The TRC approved Denmon's plan before UPRC began drilling the well.
In early June 2000, UPRC instructed its landman, Ken McKinley ("McKinley"), to meet on at least a weekly basis with the Coopers while the well was being drilled to address any concerns or needs they might have. McKinley first met with the Coopers in their home on June 9, 2000. Mrs. Cooper told McKinley that she believed that considering Mr. Cooper's infirmity, they would require at least forty-five minutes to evacuate their home. McKinley testified that it was quickly apparent the Coopers were anxious to leave their home while the well was being drilled and that UPRC immediately acceded to the Coopers' wishes. Mrs. Cooper testified that she had been told by her brother, a retired Dallas fireman, that if they smelled rotten eggs, it was sour gas and they would be sure to die. Mrs. Cooper testified that her brother's remark led her and her husband to believe that it was imperative that they vacate their home while UPRC drilled the well.
The Coopers made arrangements
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