[17] Apparently under the evidence in this case the $150 to $200 claimed by plaintiff would have been a proper charge only for a drilling operation. No proper estimate of the value of the water taken in this case was given.
[18] However, whether the lease had been abandoned by defendant in the trial court, Mr. Broadhurst, was a proper matter for determination by the jury. In its verdict there inheres a finding against him upon the issue.
[19] It would further appear that plaintiff tried his case as regards alleged damage to the allegedly abandoned oil well involved upon both the theories of permanent and of temporary damage to realty.
[20] No objection having been made or order requiring that he elect between such theories having been requested, it would appear that an instruction permitting recovery in the alternative would not be so erroneous as to warrant reversal since there was proof of temporary damage or special damage by way of testimony that it would cost some $2,500 or more to put the well back in shape to produce water for irrigation purposes, such one item alone thus more than covering the total amount of the verdict of $2,066.
[21] I feel the authorities cited by the Court in the majority opinion amply sustain the result reached.
[22] I therefore concur specially. *Page 960