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Houck v. Hold Oil Corp.12/21/1993
ing operations. They also claim wanton or negligent conduct of Hold caused temporary damage to other portions of the tract in that in building the road and clearing the well site numerous trees (estimates ranged as high as 400-450 trees were involved) were merely pushed to the side of the well site and the sides of the road and left there after the drilling activities were complete. The Houcks also claim temporary damage in the form of Hold using soil or dirt from their property to build a road off their property. Thus, under Lanaham the Houcks would be entitled to recover both temporary and permanent damage for these claimed injuries as long as it is made clear to the jury no double recovery can be recovered for the same item of damage.
Further, in that for temporary damage alone under Enid & A. Ry. Co. v. Wiley, supra, recovery cannot exceed the diminished reasonable market value of the tract immediately before and after the injuries if the land was left unrestored, when injuries are both permanent and temporary a defendant can in no event be held liable for more than the total diminution in reasonable market value assuming the temporary injuries were left standing or unrestored. We now turn to a discussion of the proper measure of damages under the Act.
On at least three occasions we have held the damage standard intended by the Legislature under the Act is the diminution in the fair market value of the surface property resulting from the drilling operations. Davis Oil Co. v. Cloud, supra, 766 P.2d at 1352-1353; Andress v. Bowlby, 773 P.2d 1265, 1267 (Okla. 1989); Dyco Petroleum Corp. v. Smith, 771 P.2d 1006, 1008 (Okla. 1989). This measure of damages was found to be the appropriate one because of our determination an action under the Act partakes of the nature of a condemnation action by virtue of 52 O.S.Supp. 1982 ยง 318.5 (F), which provides that a trial under the Act shall be conducted and judgment entered in the same manner as railroad condemnation cases. Davis, 766 P.2d at 1347; See also Dyco Petroleum Corp. v. Smith, supra, 771 P.2d at 1009 (an action under the Act clearly partakes of the nature of a condemnation action); Santa Fe Minerals, Inc. v. Simpson, 735 P.2d 1206, 1208 (Okla. Ct. App. 1987) (recognized Davis specifically held factors and elements of damages under condemnation law are properly applied under the Act).
We also held in Dyco Petroleum Corp. v. Smith, supra, that it was not error to consider the affect the drilling operations may have on an entire tract, i.e. compensation is not limited only to the value of the land actually occupied by the drilling operations (access roads, drill site, etc.), but the diminished value of the entire tract caused by the drilling operations is a proper measure of damages under the Act. 771 P.2d at 1008. This determination was simply a recognition of the longstanding measure of damages under condemnation law to the effect, where only a part of a tract is condemned and damages are sought for the value of that taken, and for damages to that not taken, the measure of damages is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the portion left immediately after the taking. State ex rel. Department of Highways v. Robb, 454 P.2d 313, 315 (Okla. 1969).
We also approved of an instruction in Davis which listed various factors that might be considered in arriving at the decrease in fair market value. Davis, supra, 766 P.2d at 1352. One of the factors approved of was whether or not the damages were of a temporary or permanent nature. Id. The several factors identified in Davis are not to be considered as separate items of damage, but must
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