Appellees sued alleging their ownership of a pasture through which a stream ran after passing by appellants' oil well; that appellants discharged salt water and refuse oil from said well into said stream and that such conduct was negligent and that same was carried in said water course into appellees' pasture and was injurious and fatal to cattle; and that appellees had been compelled thereby to keep cattle out of their pasture and had lost the use of same for two years, which use was of the reasonable rental value of $100 per year. There was also an allegation of a cow killed thereby, which was not proven. Judgment, in a trial without a jury, was for $150, being for loss of use of the pasture for eighteen months.
There was evidence that such water was injurious to cattle, that the pasture was for that reason not used for eighteen months, and that the reasonable rental value was $100 per year.
The court allowed appellees to prove that appellants had by contract paid appellees $100 for keeping appellees' cattle out of the pasture the year before those years named in the pleading. Assuming that this evidence was not justified by the pleading and should have been excluded, we think the error is not reversible. At most, it shows an admission of liability for the previous year, which could have had no effect on the court. The only evidence of reasonable rental value was in the exact figure of the contract of the previous year and of the judgment of the court.
Appellants offered no testimony.
We must assume, if it be necessary, which we think it is not, that the court considered only the testimony properly admissible. We do not see how the court could have rendered any other judgment unless he believed that appellees were wholly mistaken in their testimony.
The judgment is affirmed.
On Rehearing. In regard to the insistence of counsel for appellants that we should set out the evidence that sustains the judgment, we quote the following upon the only contention of appellants that there was no evidence that cattle in the said pasture would be exposed to injury from drinking the waters of Farmers' Branch:
J. B. Foster, cattleman all his life, knows that the water in Farmers' Branch is salty, with oil on banks and a reddish sediment in the branch common to oil well water. He could testify of his own knowledge to the effect of salt water from oil wells on cattle. The effect on a cow from drinking salt water from an oil well is that they don't have much action afterward. It takes them a good while to recover. If she gets a good dose, it makes her sick, affects her bowels. "To my own knowledge it will kill them, at times."
G. I. McCallister testified that he was a cattleman of experience, and swore to facts substantially as above quoted and also that cows which had drunk such water had died and that a "scummy" substance known as oil was passed from them.
Andrew Smith, a cattleman of thirty years' experience, testified he was familiar with the water in Farmers' Branch; that he had observed a cow that had drunk it and died.
In addition thereto the record shows a great deal of testimony offered from these and other witnesses which was excluded by the trial court, apparently because no one except a veterinarian could testify as an expert on what had caused the death of a particular cow. The testimony was wrongfully excluded, for expert testimony on this subject is not confined to him who is a licensed *Page 751 veterinarian, but in the affirming of the judgment we did not find it necessary to resort to that portion of the record.
One assignment which the motion complains of our failure to discuss refers to the following event, as shown by the record: The witness Smith, above quoted, was on the stand:
"Q. Mr. Smith, is it your opinion that the water in Farmers Branch is injurious to live stock?
"Objection.
"The court: Overruled.
"Mr. Arnold: We except.
"Q. What do you think it will do to them? A. I think it will kill them.
"Mr. Arnold: We object because the witness is not qualified.
"The court: Objection overruled."
We did not discuss the assignment because the same was of no importance.
The judgment is not for killing a cow. It is for loss of use of a pasture. There was ample evidence without the answer objected to as above quoted. The trial was before the court without a jury.
The motion for rehearing is overruled.