#### ROCK ISLAND OIL & REFINING CO., Inc. et al. v. MARNEY et al.

No. 34845.

Supreme Court of Oklahoma.

Feb. 24, 1953.

Rehearing Denied March 31, 1953.

C. D. Cund, Duncan, Edward Howell, Oklahoma City,- and J. D. DeBois, Duncan, for plaintiffs in error.

H. B. Lockett and Hegel Branch, Duncan, for defendants in error.

O’NEAL, Justice.

In this case there was evidence to sustain the1 finding of the jury 'that in the operation of defendants’ refineries during the year 1948, crude oil and refinery waste escaped from defendants’ plants and drained into Cow Creek. Cow Creek heads north and meanders in a southerly direction as it passes the defendants’ refineries. In the operation of these refineries, especially in the year 1948, substantial quantities of effluent water, impregnated With oil and ' refinery waste',' éscaped from their plants and drained into Cow Creek, which flowed over plaintiff’s farm.

■ Two witnesses, employees of the State Game and Fish Department, testified that after they received'a complaint with reference to refinery waste in Cow Creek, they went to the refineries and found that oil and refinery waste had escaped from certain ponds, as well as in the general operation of defendants’ plants, which refinery waste drained into Cow Creek. From their investigation of Cow Creek, above defendants’ plants, they found the creek water free from oil field or refinery waste. That upon an examination of the water, after it had flown past the refineries, they found it contained refinery pollution. Several farmers living along Cow Creek testified *240that they found live fish, turtles and frogs in the creek above the refineries, but that in the fall of 1948, they found no aquatic life in the stream below the refineries; although they found dead fish in large quantities along the bank of said stream. A witness, owning a farm near the stream, testified that in the fall of 1948, he followed the stream from the refineries down to and below Ryan, and near Terral, where he observed many dead fish along the banks of the stream.

Without dispute it was shown that on several occasions a dike or pond upon the premises of one of the refineries was washed out as a result of heavy rains, causing large quantities of water to flow into Cow Creek. One of these break occurred about the middle of October, 1948. Plaintiff testified that his cattle, after drinking water from Cow Creek in October, .1948, became ill. Seven head of his cattle died and twenty-one of his heifers aborted. Some of his milch cows became ill and ceased to produce milk. There is substantial evidence in the record as to the injury inflicted on his herd of cattle.

We have, today, affirmed the companion case of Rock Island Oil & Refining Co., Inc. v. Hutchinson, Okl.Sup., 255 P.2d 234. Practically the same witnesses were used in that and the instant case to establish that refinery waste drained into Cow Creek, destroying the waters for livestock purposes. With the exception of the question of punitive damages which was in the Hutchinson case but not in this case, the same propositions of law and the same authorities are urged and relied on in this case as were urged and relied on in the Hutchinson case; and since said propositions were discussed and authorities analyzed in the companion case, it is deemed unnecessary to repeat them herein.

The judgment in the sum of $2,900.50 in favor of the plaintiffs and against said defendants is.affirmed.

JOHNSON, V. C. J., and WELCPI, CORN, DAVISON, WILLIAMS and BLACKBIRD, JJ., concur.

HALLEY, C. J., dissents.