dissenting. I respectfully dissent from the majority’s opinion. In my view, the majority opinion erroneously concludes that proximate causation is not a genuine issue of material fact in this case, and it fails to address the factors that should guide analysis of proximate causation in cases like this one.
Three Arkansas Supreme Court decisions should govern our review of the circuit court’s determination that appellants failed to present any genuine issue as to whether the appellee’s drilling of its gas well was the proximate cause of the reduction in the amount of water that their first well produced. When considered together, these three cases set forth the sort of circumstantial evidence that a court should consider when determining whether the drilling of an oil or gas well damaged a neighboring water well.
The first of these three cases is Western Geophysical Co. v. Mason, 240 Ark. 767, 402 S.W.2d 657 (1966). In Mason, the supreme court affirmed a jury’s verdict that the Western Geophysical Company had damaged Mason’s water well in the course of conducting seismographic exploration for oil by exploding dynamite in holes fifty to seventy-five feet deep near Mason’s property. After Western Geophysical Company’s detonation of the dynamite, the water in Mason’s well “turned red and muddy, and was unfit for use, allegedly as the result of the shots.” Mason, 240 Ark. at 768, 402 S.W.2d at 658. With regard to Mason’s proof that Western Geophysical Company’s conduct was the proximate cause of the damage to his water well, the supreme court set forth the following summary of the circumstantial evidence that proved proximate causation:
Rather than attempting to set out in full all relevant testimony, we deem it sufficient to point out: appellees testified their well was damaged in 1961 by similar explosions; that they so informed appellant [Western Geophysical Company], and that they warned appellant the explosions were too close to their well. Likewise, there is undisputed evidence in the record that the well was damaged shortly after the explosions occurred, and no other explanation for the damage was shown or even suggested. We are not unmindful of the expert testimony presented by appellant to the effect that vibrations set in motion by the explosions could not have affected the well because of the small size of the shots and the distance from the well. However, in our opinion, a jury-question was presented hy all the testimony.
Mason, 240 Ark. at 769-70, 402 S.W. 2d at 658. Nowhere in its recitation of the circumstantial evidence bearing on the proximate cause issue did the supreme court state the distance between Mason’s water well and the Western Geophysical Company’s subterranean dynamite explosions. Moreover, the supreme court did not state the time that passed between Western Geophysical Company’s dynamite explosions and the appearance of mud and red coloration in the water in Mason’s water well.
The second supreme court decision pertinent to our review of this case is O'Brien v. Primm, 243 Ark. 186, 419 S.W.2d 323 (1967). In that case, the Arkansas Supreme Court affirmed the circuit court’s denial of appellant O’Brien’s motion for directed verdict. Appellant O’Brien owned an oil well that was 2,326 feet deep and was located 550 feet from appellee Primm’s water well, which was approximately 30 feet deep. With regard to O’Brien’s conduct and its relation in time to damage to the water in Primm’s water well, the supreme court noted:
In April 1964, appellants did what is known as a sand fract job on the oil well, and within a week or so following this operation, a change was noted in the quality of the water in appellees’ water well, and the quality of the water rapidly deteriorated until it soon became unfit for human consumption.
O’Brien, 243 Ark. at 188, 419 S.W. 2d at 324.1 The supreme court noted further that O’Brien’s sandfract operation consisted of pouring cement down the casing of the gas well’s shaft, then pouring acid into the well shaft and forcing sand, blended with oil, down through the well shaft under 3,500 pounds of pressure per square inch. Moreover, the supreme court noted that, in performing this sandfract operation, appellant O’Brien made use of an old airplane engine, without a muffler, that generated vibrations of great intensity. The supreme court summarized appellee Primm’s proof that appellant O’Brien’s sandfracting job on his oil well was the proximate cause of damage to his water well as follows:
Appellants’ oil well, only 550 feet from appellees’ water well, contained an undetermined amount of acid. It was the only known source of acid anywhere near the appellees’ well. This acid was forced out into the earth under tremendous pressure along with, or ahead of, an undetermined amount or volume of fracting material. There is evidence of tremendous vibrations in connection with this operation and some evidence that the ground under the appellees’ house vibrated. So giving to the appellees’ evidence its highest probative value, and taking into account all reasonable inferences that may be deduced from it, the jury could have reasonably concluded that the high acid content of the water in appellees’ well, which had suddenly gone bad following the sand ffact operation, was forced into appellees’ well along with other impurities, from the only known and nearest source, appellants’ oil well.
O’Brien, 243 Ark. at 195, 419 S.W. 2d at 328.
The third Arkansas Supreme Court decision that should be considered in our review is Continental Geophysical Co. v. Adair, 243 Ark. 589, 420 S.W.2d 836 (1967). In that case, the supreme court reversed the trial court’s denial of Continental Geophysical Company’s motion for directed verdict. Adair, like Mason, involved an appellant that conducted seismographic exploration for oil by detonating dynamite in holes that had been drilled into the earth. Adair and the other four appellees were homeowners who lived in the vicinity of Continental Geophysical Company’s dynamite blasts. Each appellee had a water well on his property that had gone dry in the spring or summer of 1964. With regard to the precise nature of Continental Geophysical Company’s conduct and its spacial and temporal relation to the appellees’ damaged water wells, the supreme court noted:
The record facts show that sometime prior to March 13, 1964, appellant [Continental Geophysical Company] drilled ten holes in the vicinity of the Sugar Grove and Dry Creek areas of south Logan County, at a depth of 100 feet.... In each of seven of these holes appellant placed 200 pounds of dynamite, which took up 40 feet of the hole. The remaining 60 feet was filled with gravel. The charges packed in the holes were set off by appellant on March 13, 14, and 15, 1964. The closest test hole to any of appellees’ wells was 1,600 feet; the farthest was 6,300 feet. It was also undisputed that in 1963 Logan County was declared a drouth area. . . .
Adair, 243 Ark. at 590, 420 S.W. 2d at 836. The supreme court also noted the testimony of Continental Geophysical Company’s expert witness, who apparently was a geologist. This expert witness testified that all of the wells in the town of Sugar Grove drew water from an underground saturated mass and that this body of water did not flow in streams but moved as a body en masse. This expert witness testified further that there were no underground streams in the area. The supreme court held that the circuit court erred in denying Continental Geophysical Company’s motion for directed verdict because there was no evidence that showed Continental Geophysical Company’s dynamite blasts were “a cause which, in a natural and continuous sequence, produced the damages to the [appellees’] wells and without which the damages would not have occurred.” Adair, 243 Ark. at 593. In reaching this conclusion, the supreme court specifically noted the distance from Continental Geophysical Company’s dynamite blast holes and the appellees’ water wells and the lag in time, from the middle of March 1964 to the spring or summer of 1964, as proof that Continental Geophysical Company’s dynamite blasts did not cause the appellees’ water wells to dry up.
Study of Mason, O’Brien, and Adair establishes that when considering whether seismographic exploration for or operation of an oil well was the proximate cause of damage to neighboring water wells, the Arkansas Supreme Court considers proof of the following factors, which can be circumstantial evidence of causation: (1) the nature of the oil well operator’s activity; (2) the distance between the oil well and the water wells; (3) the proximity in time between the oil well operator’s activities and the first appearance of damage to the water well; (4) the presence of (and nature of) contaminants in the water well; (5) the drought conditions in the locality; (6) the period of time that the water well had previously been in operation; (7) the difference between the rate of the water well’s production before and after the oil well operator’s conduct; (8) the manner in which subterranean water in the locality flows; and (9) the possibility that there is some other cause, other than the conduct of the oil well operator, for the damage to the water wells. Because this case was decided below in appellee’s favor on a motion for summary judgment, this court should consider the proof bearing on these factors in the light most favorable to appellants, who were the nonmoving parties, and any doubts or inferences must be resolved against appellee. See Cash v. Lim, 322 Ark. 359, 361, 908 S.W.2d 655 (1995).
Application of the factors, noted above, to the circumstantial evidence set forth in the depositions and affidavits before the circuit court does not yield a conclusive result. The appellee did establish a prima facie case for summary judgment by introducing proof that the water that fed appellants’ well flowed through strata of rock and that when its gas well was drilled the well shaft did not strike water. The appellee’s prima facie case is buttressed by the confined nature of its activity — the drilling of a gas well — when compared to the blasting of the earth and intense vibration of the earth done by the defendants in Mason, O’Brien, and Adair. Neither party produced proof pertaining to the possibility of drought in the locality during the spring and summer of 1995. Neither party produced proof of any contaminants present in appellants’ well water, prior to its purification, after the well’s production dropped from eight gallons of water a minute to about half a gallon a minute.
Although appellee established a prima facie case to the entitlement of summary judgment in its favor, appellants placed before the circuit court proof that, if viewed in the light most favorable to them, would establish a genuine issue as to whether appellee’s conduct was the proximate cause of damage to their water well. Appellants proved that appellee’s gas well was approximately 800 feet from their water well, which is comparable to the 550 feet between the water well and the sandfracted oil well in O’Brien. Moreover, appellant Randy Wirth introduced proof that approximately two weeks after March 26, 1995, he first noticed that there was low pressure in his water well and he also proved that the appellee began to drill its gas well in March of 1995. This approximate two-week period is comparable to the “week or so” in O’Brien that passed between the sand fract operation and the change in the water in Mr. Primm’s well. In addition, Wirth proved that there was a significant reduction in the amount of water produced by his well after the appellee began drilling its gas well and this low production of water remained constant. Moreover, Wirth proved that in the six-month period prior to March 1995, when the appellee began to drill its gas well, his water well consistently produced enough water for his family’s use. Moreover, appellee did not introduce proof that there was some other cause, other than its drilling of the gas well, for the damage to appellants’ water well. This “no other explanation for the damage” factor was noted by the supreme court in Mason as a matter that presented an issue for the jury to determine. Mason, 240 Ark. at 770.
Based upon my analysis of the Mason, O’Brien, and Adair cases and based upon my review of all of the proof presented to the circuit court in the light most favorable to appellants, as the nonmoving parties, and because this court should resolve any doubts or inferences against appellee, as the moving party, I conclude that the circuit court erred in granting appellee’s motion for summary judgment. When I apply the appropriate standard of review to the proof in this case, I conclude that appellants did present a genuine issue of fact regarding whether appellee’s drilling of its gas well was the proximate cause of damage to their water well. I would reverse the granting of the summary judgment and remand this case for a trial on the merits.
Crabtree, J., joins in this dissent.“Sandfracting” is defined as “[a]n operation designed to loosen or break up tight [sedimentary rock] formations which contain oil or gas, thus causing such formations to have more permeability and greater production.” Howard R. Williams and Charles J. Meyers, Oil and Gas Terms 880 (7th ed. 1987).