(dissenting): Appellants no longer contend plaintiffs are not damaged in the amount of the judgment rendered in this case by salt water and other oil-well waste which they permitted to escape from their oil-well operations. The sole contention here is that plaintiffs did not bring their action in time. They say the action should have been brought when the oil-well operations began *222several years ago in the region of the headwaters of the stream which runs through plaintiffs’ land and several miles from it, or that the action should have been brought when there was the first showing in the stream on plaintiff’s land of oil-well refuse which had escaped in the operation of oil wells near the headwaters of the stream. To my mind both contentions are fundamentally unsound. When the oil-well operations first commenced, several years ago, plaintiffs had no reason to think defendants would permit the escape of oil-well refuse which would be injurious to them. Had plaintiffs brought an action for damages at that time it would have been premature, and any claim of prospective damages would have been so speculative as not to have justified a recovery. So the action would have been futile. Had the action been brought after it was known by plaintiffs, sometime prior to December, 1931, that at times of high water there were traces of oil on the water enough to be seen on the banks of the stream, or upon weeds or brush where the stream had overflowed, but at a time when there had been no injury or damage to their land in any appreciable degree, it would have been premature for the reason that any anticipated damages to their land would have been too speculative to have formed the basis of a judgment in their behalf. In the somewhat similar case of Gardenhire v. Sinclair-Prairie Oil Co., 141 Kan. 865, 44 P. 2d 280, it was held that the action did not accrue to plaintiffs until they were injured, and that the statute of limitations did not begin to run until that time. Also, in Fulmer v. Skelly Oil Co., 143 Kan. 55, 53 P. 2d 825, the same rule was applied. There the trial court had made findings of fact. Among others was one that at times, more than two years before the action was brought, the water in the creek on plaintiff’s land “was polluted to some extent and its purity and quality substantially lessened.” This finding was the basis of the judgment of this court reversing the judgment of the trial court favorable to plaintiff. In both of these cases the test applied by the court was whether there had been any real or substantial injury to plaintiff’s land more than two years prior to the time the action was brought. The same principle controlled our decision in Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 297 Pac. 679. There plaintiff pleaded and proved actual damages to his land more than two years prior to bringing his action, and it was held he could not recover. To my mind that is a sound basis for determining when a cause of action *223accrues and when the statute of limitations begins to run in an action such as this. Each of these cases cited many earlier decisions, and the rule applied in them is sustained bóth by reason and authority. It is true, as-set out in the opinion, one of the plaintiffs testified that prior to the death of his father in December, 1931, on several occasions after a freshet he had seen evidences of traces of oil upon the water of the creek. Answering question No. 5, the ■jury found that was true, but this is neither evidence nor a finding that plaintiffs’ land was injured in any substantial or appreciable degree, or, indeed, injured at all by such slight traces of oil. The stipulation referred to in the court’s instructions, set out in the opinion, is simply an admission on defendants’ part that some oil and salt water had escaped from their wells, tanks, ponds and pipe lines into the surface of the ground included in their leases. I understand their leases did not cover the land of plaintiffs. This is not an admission by plaintiffs that the oil and salt water from defendants’ operations had injured their land more than two years before this action was brought. Answering question No. 11, the jury found the water in the creek on plaintiffs’ land was first damaged to a substantial degree from the oil wells upstream therefrom in October, 1932. If that is true this action was brought in time. Any controversy over that question arising in the evidence simply made a controverted question of fact. The jury has found the fact, and this finding has been approved by the trial court. I see nothing in the record which requires us to set it aside as a matter of law.
Smith, J., joins in this dissent.