dissenting.
In this case, the majority makes an assumption of procedural fact and redefines the English language to sustain a jury verdict in the face of an erroneous special verdict form which submitted a case to the jury for decision that had not been presented as the issues of the litigation. Agreeing to do neither, I dissent.
I agree with appellants in their contention that allowable discretion of the trial court in procedural decisions was exceeded in late granted authorization to appellees for additional expert witnesses and in denied rebuttal evidence presented for use by appellants. However, in these other regards except to state disagreement with the trial court’s decision, the subjects will not be extensively pursued since reoccur-rence in future cases should not be expected.
The principal problem of this case is submission for jury decision of a factually erroneous and substantively conflicting special jury verdict form. In actual result, if we apply the often but usually overstated declination that it is presumed the jury will follow the court’s instructions, Goggins v. Harwood, 704 P.2d 1282 (Wyo.1985); State Highway Commission v. Peters, 416 P.2d 390 (Wyo.1966), the instruction actually given in this case constituted a directed verdict for appellees. The pre-clusive decision occurred in the phraseology of the verdict for the issue then remaining after other claims had been rejected by the trial court’s preemptory partial directed verdict.
The facts of this case, relating to the terminology used in the dysfunctional form of the jury verdict, require some recitation for proper analysis of the preclusive error. Appellants in this case are several second or third generation homesteader ranchers in an irrigated farming area of the Big Horn basin first settled about 1892. The area was the Shell Creek Valley in the north central part of Wyoming. The families in the area over the many years of farming and ranching raised small grains, beets, hay and cattle.
In 1974, appellees came to the valley to drill an exploratory oil well on a federal oil and gas lease in Herren Gulch which was located about a mile from the farming land of the appellants. The test well was reasonably shallow-, about 2,700 feet to the Ten Sleep formation. The record, however, reasonably demonstrates that the test continued 200 feet deeper and entered the Madison formation where high bottom hole pressure was then encountered which blew the drilling mud out of the well. Ultimately, the test was unsuccessful and the well was plugged and abandoned.
The six week trial tested and contested what was done or not done in plugging and abandoning the unsuccessful saline water pressured Madison formation well. In oil patch parlance, this could have been called a “duster,” but in fact it was a high pressure salt water non-oil producer.
Appellee Consolidated Oil & Gas, Inc., as the driller and principal in the wildcat effort, received specific instructions for plugging and abandoning the well from the United States Geological Service. It does not appear to be questioned that the instructions were not actually followed and that a false affidavit of plugging was filed by Consolidated Oil & Gas, Inc. with the governmental agency. Consolidated Oil & Gas, Inc. continued to pretend by supplying the same false and misleading plugging information for about ten years thereafter and even after questions subsequently de*852veloped about the well’s involvement in subsurface water problems which came to develop under the appellants’ property. This much is clear from the record. Nearly everything thereafter is in controversy except for another trial time development of catastrophic significance to the appellants arising from the form of jury verdict used.
About four years after the abandonment of the well, appellants started to observe changes in their ranch and farmlands and the desert areas near the well. Subsurface water problems began to develop, progressively destroying the productivity of the agricultural lands. Alkaline seeps developed and general alkaline subsurface water raised the underground water table.
The resulting theory of litigation that followed is succinctly outlined in one of appellants’ briefs:
1. The Appellees drilled an exploratory well which penetrated the high pressure Madison formation (this was admitted by the Appellees);
2. The Appellees intentionally failed to seal off the Madison Formation in accordance with the approved plan for doing so (this was admitted by Appel-lees);
3. The approved plugging plan would have resulted in a cement plug ending more than 100 feet into the formation above the Madison Formation (this was admitted by Appellees);
4. The actual plugging by Appellees left a cement bottom plug which was 23 feet below the top of the Madison Formation (this was admitted by Appellees);
5. After this took place, the subsurface water table in the valley floor below the well was increased by 16%, and the Appellants suffered water damage to their ranches.
Without being able to specify the specific median of intrusion by which the Madison waters were affecting the upward movement of water from the 2,845 foot elevation, or exactly how the underground extrusion of pressure occurred, appellants argued that the down hole Madison pressure was intruding into the subsurface water level and forcing the water up underneath the soil to saturate and alkalize the lands from underneath the surface by a raised water table of contaminated water.
The case from this point became a battle of forensic experts with defenses directed to analysis that the plugging was adequate, even if improper, and that the resulting killing of the farmland by subsurface water could not be properly attributed to the Madison formation plugging in the abandoned well whether leaky or not. This scenario within the six week trial provided the eternal quandary between cause and effect and sheer happenstance for application of logical reasoning. An overabundance of experts provided fodder for jury cogitation with one group concluding that the Madison formation pressure released upwards was raising the water table, while the others responsively discerned that it could not possibly be so.
Those contested issues, despite the unquestioned circumstance that the plugging was not done in accordance with United States Geological Service instructions and that a false affidavit had been filed, now come here on appeal on a verdict which, on its own surface, was improper. These were subsurface events and not surface flow controversies. The jury verdict form asked a question not involved in the litiga-tive controversy and did not ask the question actually presented.
The jury was given a special verdict form with included instruction that if the first question was answered “no,” the jury need not go further. That part of the special verdict form stated:
We, the jury, present the following answers to the questions submitted by the Court:
1. Have plaintiffs proven by a preponderance of the evidence that ineffective plugging and abandonment of the Herren Gulch # 2 well caused Madison water to flow on to any of their ranches?
Yes_ No X
If your answer to this question is “no” do not answer any other questions, have the foreperson sign the verdict form and notify the bailiffs. If your answer to *853this question is “yes” answer question number 2.
2. Did the defendant Consolidated Oil & Gas, Inc., commit a subsurface trespass onto or under the land of the following plaintiffs?
John Davis Yes — No —.
Wayne Barnett Yes — No —
Fred Barnett Yes — No —
Clair Cheatham and Vida Cheatham Yes _ No _
(Emphasis added.)
The problem in the instruction is illuminated by the difference in terminology found in questions one and two:
Question 1: “flow on to”
Question 2: “commit a subsurface trespass onto or under.”
The entire theory of appellants’ case was upward subsurface pressure which raised the saltine contaminated water level. This case and its six week trial had absolutely nothing to do with Madison water flowing “on to” appellants’ ranches. This was not a surface flow case. The majority now recreates a case that did not then exist by redefining “on to” to include concepts of upward pressurized migration of water into zones at the closer surface elevation. If this is not so, why was the second interrogatory, which the jury was not permitted to answer and which more appropriately stated the case, not presented?1
I believe the English language, physics, and even common knowledge require recognition of the clearly erroneous nature of the verdict form given. Since the case did not factually involve trespass upon the surface, the instruction closed out the case with what was essentially a directed verdict by special verdict form and limited review to a subject which had not occupied the trial evidence. Cf. Gilliland v. Rhoads, 539 P.2d 1221 (Wyo.1975) and Gillaspie v. Duncan, 410 P.2d 577 (Wyo.1966).
The more difficult question requires analysis of the record to determine if appellants committed a waiver sufficient to absolve the error resulting from the disposi-tively wrong and derogatory instruction. Goggins, 704 P.2d 1282. This court takes refuge in characterizations of “sandbagging” and “invit[ed] error” attributable to losing counsel when the jury has been improperly instructed. This record, within my observation, totally fails to support that sloganistic justification for affirming this appeal. Furthermore, I cannot accept the harmless error constituency within the language of the instruction by attribution to the words of what they do not say and then by definition to mean fairly what they do not mean; and, consequently, removing from jury consideration the defined issue at controversy in the trial — that appellants seek damage for the improper plugging of an abandoned oil well which raised the subsurface level of contaminated waters.
The lack of any justification for the unsupported usage of condemnatory terms, such as sandbagging and invited error, cannot be settled by attribution of waiver or failure to object. What was obviously not properly perceived by counsel or the trial court, was that a bad verdict form was proposed by appellees and was then given. Wyoming Coal Mining Co. v. Stanko, 22 Wyo. 110, 135 P. 1090 (1913). W.R.C.P. 49 involves the correlative duty of all counsel to assist the court to avoid mistakes or, conversely, to document the record by objection when a faulty instruction for improper verdict is tendered for jury resolution. Goggins, 704 P.2d 1282. See generally W.R.C.P. 51 (according the same responsibility for verdict form as exists for instructions); and Note, Special Verdicts and Interrogatories to Jury, 12 Wyo.L.J. 280 (1958). ' The spirit of the rule is the issue at task. Oeland v. Neuman Transit Co., 367 P.2d 967 (Wyo.1962).
In briefing, appellees announce that no objection was made and now this majority adopts that construction of the record. Appellants state to the contrary that objection was made. Consequently, we do not even have congruity within this subject to properly address what would involve harmless *854error resulting from a misphrased instruction or plain error to which no objection was taken. When all else fails, we could look at the record to see what it reveals compared to what the litigants and the majority have recited in an undocumented conclusion. In this regard and consequent necessity for reversal, this case is comparable to Edwards v. Harris, 397 P.2d 87 (Wyo.1964).
It is first found that three special verdict forms were submitted by appellants which generally, except for deletion of the last paragraph and the changes in the form of the first paragraph, are identical with the instruction used:
We, the jury, present the following answers to the questions submitted by the Court:
1. Did the Herren Gulch # 2 well leak water unto or under the property of the following plaintiffs?
John Davis Yes _ No_
Wayne Barnett Yes _ No _
Fred Barnett Clair and Vida Yes_ No_
Cheatham Yes _ No_
If your answer is yes to any of the plaintiffs, go on to question 2 for those plaintiffs. If your answer is no to any of the plaintiffs, do not answer the rest of the questions with respect to those plaintiffs.
2. Did the defendant Consolidated Oil & Gas, Inc., commit a subsurface trespass onto or under the land of the following plaintiffs?
John Davis Yes No _
Wayne Barnett Yes _ No_
Fred Barnett Yes No_
Clair Cheatham and Vida Cheatham Yes_ No _
The quandary that remains is why the term of the first question on the verdict form as submitted by appellants was changed only as to the subject here presented on review? (The deletion of the last clause of the proposed instruction is not presently in contention.) The record reveals that the verdict form was created by someone taking the first paragraph from a form submitted by Adobe Resources Corporation (one of the appellees) and then copying, in almost exact or identical form, all succeeding paragraphs from the three requested forms submitted by appellants except for the last deleted paragraph.
The record, without assistance of any transcript of the instruction conference which apparently occurred the day before the jury was instructed, does not add knowledge to assess why the trial court rejected the appellants’ portion of the instruction in the critical first paragraph and, instead, adopted the submission of the ap-pellees by attachment to the general form supplied by appellants. Small words can make a world of difference. The change in phraseology was to delete the “onto or under” language found in appellants’ submission and replace it with the “on to” transformation provided by appellees.
Lacking a transcript of the discussion from which the transformation was derived, we are left with a brief colloquy in open court when it was time for stating objections for any information in the record about the occurrence. After stating a number of objections to instructions given or rejected at the prior unrecorded conference, counsel for appellants stated:
And then I’ve got three proposed verdict forms which I have presented to the Court and plaintiffs. Verdict number one, special verdict number two and verdict form number three.
The Court: One, two and three?
Mr. Williams: That’s correct, but I should wait until the Court reviews its verdict form before I make a record on that.
The Court: Cam?
Mr. Walker: Go ahead. We will join in defendant Consolidated’s offers.
Mr. Weiss: At this point defendant Consolidated and the others would also object to not — the Court not instructing or including in the instructions given on the fraud and estoppel as a bar to the statute of limitations—
The Court: You have to give me a—
Mr. Weiss: What we proposed as Instruction lettered A, to keep them clear, either a separate instruction or should *855have been included in it concerning the effect of an independent investigation on the plaintiff to rely upon any misrepresentation of fraud.
Defendant Consolidated would also object to the Court’s failure to instruct what we have tendered as Instruction B, concerning speculation on facts as well as the one that was given concerning speculation on damages.
The Court: Okay, Cam?
Mr. Walker: I join in those offers and I also offer special verdict which I will mark at the top Adobe.
The Court: One.
Mr. Walker: One special verdict form.
Mr. Williams: Let me give you that special verdict form and I will make my record.
Mr. Weiss: Could I put in one thing? Defendant Consolidated would join in Mr. Walker’s objection concerning the special verdict form.
Mr. Williams: Attached to my plaintiffs’ offered jury instructions are three proposed plaintiffs’ verdict forms which I understand the Court rejected. I believe there should be a question and answer regarding the agency of Consolidated— rather the agency — whether or not an agency relationship exists between Vanderbilt Resources, that is the Adobe entities, as a principal and Consolidated Oil and Gas as an agent.
I also object to the failure of the Court to give Plaintiff’s [sic] Instruction No. 6 dealing with committing a subsurface trespass and I cite the Restatement of Torts, 158 and 159, which is right on point which says we are entitled to this instruction. I tender these instructions.
The Court: These are the ones you object to, Counsel?
Mr. Williams: These are ones you refused.
Appellees only addressed the verdict as quoted by tendering the special form for which the first paragraph was substituted for the first section tendered by appellants to create the instruction which was given. So ended the colloquy for the open trial objections to the form of the jury verdict.
We are placed in review with decision of error as possibly harmless when objection is taken or plain error when the proper objection is not made. Obviously, objection to the instruction was made and a proper instruction on the subject involved had been tendered. Nothing within the entire scope of the tendered record reveals why the phraseology of the Adobe Resources Corporation document was used for paragraph one and the totally different appellants’ form used for paragraph two when the subjects addressed were identical in factual significance. To be compared in the dispositive language is Texas Gulf Sulphur Co. v. Robles, 511 P.2d 963 (Wyo.1973), where the appellant neglected to supply a properly worded instruction. See also Haley v. Dreesen, 532 P.2d 399 (Wyo.1975).
I perceive that adequate objection was taken and it was not harmless. I further find that under the confining circumstances of the six week trial, plain error otherwise appeared when a subsurface bad water intrusion case was converted into a surface flow problem for decision. By no means can I accept any contention that “onto” means under in one paragraph, but requires “under” in the next paragraph to properly define the nature of the case as one of subsurface occurrence.2 The elastic boundaries we have created by W.R.A.P. 7.04, harmless error and W.R.A.P. 7.05, *856plain error, cannot be extended to an empirically misinstructed jury decision. This is not a Goggins case. Fundamental error exists where the case tried is not the case for which the verdict form is provided or the decision is rendered. Twing v. Schott, 80 Wyo. 100, 338 P.2d 839 (1959); McNamara v. O’Brien, 2 Wyo. 447 (1881). If not accommodated with a harmful error review, this misadventure in verdict terminology constitutes plain error. Hays v. State, 522 P.2d 1004 (Wyo.1974).
Addressing another subject, in a long and severely contested trial such as this one, it is understandable why the appellate court accords discretion to the trial court in normalized decision as here found in a late date permission to appellees to add additional expert witnesses and the rejection of rebuttal evidence tendered by appellants. Having said it is understandable, I am not persuaded that it did not constitute an abuse of discretion. Martin v. State, 720 P.2d 894 (Wyo.1986). Many courts have opined about criminal defendants’ use of changing attorneys to obtain delay in proceedings. Here a change in attorneys afforded a basis to correct a glaring omission in pretrial preparation by present appellees. I might more easily accept that result as fair if an adequate opportunity to recover had been realistically available to the innocent party. Lacking that time within the status where, by changing attorneys, a litigant sought to add additional expert witnesses at the last moment, I perceive that organized process as fairly applied would have required denial. This is the exact converse and the opposite result of what happened in Kobos By and Through Kobos v. Everts, 768 P.2d 534 (Wyo.1989). See Shields v. Carnahan, 744 P.2d 1115 (Wyo.1987).
I also fail to find any proper basis for rejection of the rebuttal video tape which was put together while the trial was in progress and consequently could not have been subjected chronologically or factually to an earlier tender, since the proposed exhibit would have shown what was different from what appellees said it was to have been, clear and proper office for rebuttal evidence was constructed. State v. Alexander, 78 Wyo. 324, 324 P.2d 831 (1958), cert. denied 363 U.S. 850, 80 S.Ct. 1630, 4 L.Ed.2d 1733 (1960); New Hampshire Fire Ins. Co. of Manchester v. Boler, 55 Wyo. 530, 102 P.2d 39 (1940).
I would have reversed for retrial and, consequently, dissent.
. "Onto” and “on to” may have different linguistic attributes, but "onto” is defined as: "to a position on.” Webster’s Ninth New Collegiate Dictionary 825 (1986). The word clearly means supported by and not underneath and pressured upward towards the surface.
. It is my conclusion, not only from a diligent review of the record but also questions addressed at oral argument and statements found in brief, that no one really knew or necessarily recognized the transformation that occurred through whatever process. Adobe Resources Corporation must have known what they meant and not intended to do any favor, but why the incorrect terminology was accepted to be added to the verdict form is just untold in this record. Strangely enough through briefing and into oral argument, the contentions and arguments • which are now followed by the majority fail to recognize the chasm separating the text and tenor of the first instruction from what the question would have been if the jury had ever moved further to the second decision. Anyone in irrigated farming communities knows the singular difference between subsurface moisture rising from below and excess accumulation of surface water running from higher elevations on to the land.