(dissenting).
I respectfully dissent from the decision of this Court that the evidence is insufficient to support the findings of the jury as to damages sustained by the two tracts in suit.
There is a 320 page statement of facts in this case most of which is devoted to the issue of damages. There are also 29 photographs admitted on the issue of damages. The opinion of the Court does not reflect that it has fully considered all the evidence in its ruling on the evidence points.
In my opinion, there is abundant evidence to support the damage issues found by the jury.
It must be remembered that Hilliard’s 306-acre tract of land is a single tract in the shape of a square; that Harrell’s 160-acre tract of land is a single tract in the shape of a rectangle adjoining the Hilliard tract on the south; that Quarry Creek, including its west fork, runs the length of the Hilliard and Harrell tracts from north to south near the center of the Hil-liard tract and across the east portion of the Harrell tract; that the flow of the water in Quarry Creek and the downslope of the terrain is from north to south; and that the portion of Hilliard’s tract most highly saturated with oil was the south portion of the 29-acre cultivated field just above the center of the Harrell tract and in the center of the Hilliard tract. Thus, we are here concerned, not with some isolated, segregated few acres of land, but with permanent damages to the 306-acre Hilliard tract and the 160-acre Harrell tract and their common water supply, the waters of Quarry Creek, which traverses both tracts.
The witness Sid Horton was a farmer who had lived as a neighbor to and had known appellees for 18 years. He was familiar with their tracts of land both before and after the oil damages; and he was familiar with the land values in the area where he lived and where this land is located. Mr. Horton testified that in March of 1968, he made an examination of the tracts of land concerning the oil; that he walked over the cultivated land from where the surface damage showed and walked all the way to the pasture land south and got in the pasture and walked all the way to Harrell’s and looked at the oil floating in the gully there and the water; that the damage was more prevalent at the time where it was seeping out of the banks of the slough and it was everywhere, from where the break was all the way *340south to Mr. Harrell’s and where it goes under the line fence there and there was oil and mulch two or three inches deep floating on top of the water; that the gully is narrow in places, pools are wider, but where it goes into Harrell’s there is a pretty good pool there and there was a lot of oil floating on top, and that he went back over toward the other fork that’s west of the creek across the field there and found oil seeping on the banks of all the old sloughs examined, and there was oil showing in the field just west of the break there, on top of the ground in spots and the oil was fresh. He testified that it was several hundred yards from the common boundary line between the Hilliard and Harrell tracts on the south side of Hilliard’s tract back up where the big break and pit of oil was. On April 25, after his March examination, he was there again in the company of Mr. Hil-liard and observed the oil damage at that time.
Mr. Horton testified:
“A Hilliard asked me to bring a post hole digger, and we went over there and dug a number of holes across the field from the break, south, and in most of the holes we would have a four inch pool of oil on top of the water when it seeped in. We would have to go about 18 inches and it would start coming in. As we got farther down field we would have to go deeper as the oil got deeper on top. Where we failed to go deep enough to get oil we had oil saturated mud. * * *
Q You dug about 20 in his cultivated field ?
A That’s right.
Q Now, Mr. Horton, I have here in evidence Plaintiffs’ Exhibit No. 26 which has been identified as a sample taken on April 25th from a hole 40 inches deep 75 yards south of the pipeline in the field. Do you remember taking that sample?
A Sure do, yes, sir. Mr. Hilliard dug it.
Q Is that oil?
A I have sold a lot that smelled just like it, sure have.
Q That rose in the hole in just a little while ?
A Yes, sir, sure did.”
On cross-examination, Mr. Horton testified that they drilled the 20 holes in the 29-acre field. Drilled south of the pipeline back to the pasture fence, staggered them all the way, tried to see how far they could see oil, saw evidences of a leak in the middle of the field but didn’t drill at the line where the oil ran down field at any place and didn’t drill on the creek, knew there was oil there, drilled back away from it, tried to find out where they could get oil, how far they could get oil, drilled in the south corner all the way to where the pasture fence comes around and on the west side, too, and found the hole in the south end of the field pretty well saturated with oil underneath it, and he testified that the whole south end of the field has got oil under it. He testified that they drilled the holes about 40 inches deep but the oil seemed to be coming in about two feet deep. He further testified that from his experience from observing oil, that oil and water doesn’t mix and that in wet, saturated soil, oil would have a tendency to be on top, that whether it tends to flow and move under the soil depends on what you have under the soil, it wouldn’t move and flow with tight land, clay formation, but if you have a gravel or porous formation, it would have a tendency to flow and move and he further testified that there is some vegetation tolerant to oil in the soil but usually not the palatable grasses and weeds the cattle will eat.
After being fully qualified as to his knowledge and familiarity with land values in the area, with the Harrell and Hilliard tracts of land and with the nature and extent of the oil damage to said tracts, Mr. *341Horton testified that before the oil damage, Hilliard’s land had a market value of $175.00 or $180.00 an acre and that after the oil damage, its market value was about half that, about 50%; that before the oil damage, Harrell’s 160-acre tract had a market value of $165.00 an acre and that after the oil damage, it had a market value of 60% of the $165.00 per acre.
Mr. C. T. Parker, County Agent for Runnells County for 13 years, testified that in addition to working with the farmers and ranchers and land owners in the normal course of his duties, he had made special efforts in regard to helping to conserve the land and preserve it from pollution or waste, basically as concerned the petroleum by-products, salt, and that in connection with that work, he had seen various tracts of land in the County that had some damage from petroleum products; that he was familiar with the Hilliard 306-acre tract and the Harrell 160-acre tract involved in this suit, that he went out and examined the premises and a representative of the Railroad Commission was with him when he went out and Mr. Hilliard and Mr. Harrell were there and it was sometime along in April or May. He testified that he observed oil on the land and in the creek and that he considered the damage from the oil to be extensive. As to the permanency of the damage to land from oil, Mr. Parker testified:
“Q All right, sir, Mr. Parker, have you observed soil where, observed crude oil that has been deposited or become diffused in the soil ?
A Yes, sir.
Q What has been your observation about that soil after the oil has permeated it; will it grow crops ?
A Ho, sir.
Q What about the permanency of that, will it not grow a crop for a long time or just a week or year or have you observed any crop growing on any soil that’s had oil permeated .into it?
A Well, I have no scientific basis for this, most salt water damage I consider in a period of time it will leave out and maybe this soil will come back. As I say, I haven’t watched a plot of land a hundred years or fifty years. It’s always been my thinking once soil has oil in it, I don’t know whether it will ever come out or not.
Q Now, on the tracts you have observed that have had crude oil permeate into them, have you seen any of them growing any crops after that?
A No, sir.
Q Have you seen any kind of weeds, noxious weeds of any kind or any kind of growth there?
A Not when it daily has oil all over it, no.
Q I gather from what you testified to that in your opinion damage from crude oil in the soil is more permanent than salt water, is that right?
A Well, I just don’t think oil will leave out of soil.
Q Did you say you thought over a period of years that with sufficient rainfall that salt water will leave out?
A Yes, sir.”
Mr. Parker further testified that in his 13 years as County Agent he had become acquainted with land values in the County and he knew of numerous tracts that had been bought and sold and that from his training and experience that he was acquainted with the productivity of different types of soil. Mr. Parker testified that before the oil damage the Hilliard land easily would bring $200.00 an acre and that after the damage occurred it would have a $50.00 or more per acre less cash *342market value; and he testified concerning the market value of the Harrell 160 acres:
“Q Using that same criterion what in your best judgment would have been the market value of the Harrell 160 acres before the oil damage occurred?
A Basically the same.
Q Basically the same. How about the value after the oil damage?
A I would say the same except maybe a little more so. Mr. Harrell certainly has possibilities of more irrigation.”
The witness Bob Vancil is a neighbor to appellees, was born in Ballinger, moved to his present place about nine years ago, his land joins the Harrell tract on the south, he has a section and a half of land there and Quarry Creek runs a mile and a half through his place, he is familiar with the Hilliard 306-acre tract and the Harrell 160-acre tract and his folks operated the Harrell tract in 1940 or 1941. He testified in connection with the Harrell land that it very definitely tends to be subirrigated and there have been quite a few times when there were crops in the field which is east of Quarry Creek and not on higher ground and that Harrell has built a tank there which subirrigates a garden and that he had seen crops growing down there in that east field in dry years when they didn’t seem to be good anywhere else. As to his examination of the tracts in question, Mr. Vancil testified as follows:
“Q Bob, were you out there this year in company with either or both of these gentlemen and examined their places in the early part of this year for oil damage?
A Yes, sir, I was out there first, I believe, with Harrell and then I believe later with both Harrell and Hilliard.
Q You made two visits there; did you walk all over the places ?
A Yes, sir.
Q And spent some time and made some extensive investigation ?
A Yes, sir, I went up and down the creek extensively and out in the field some.
Q All right, would you tell us briefly in your own words what you saw concerning any oil on the surface of the water or where it was, and so forth?
A Well, the first time when Harrell come by and told me about it we went up in there, we walked, drove pretty close to where the line was, and there was an oil seep there from the gravel bar and bank and all. They already dug down, I believe, one hole on the line and there was oil in this hole, and then we walked down the creek and there was, well, you could see the stream was extremely polluted from oil on the surface there and in a few places it had been burnt where it looked like they cleaned up one time, or tried to; and at these places, of course, there was no vegetation; trees had been burnt, leaves pretty well burnt off of them, and there was, I would say, a considerable amount of oil for around 500 or so yards down the creek into, well, the pond of Harrell’s looked like collected the biggest part of it, and it stopped it from going on down the creek; it didn’t get by there as bad, from where the line, close to Quarry Creek down to Mr. Harrell’s. The only thing I found alive in the water was one crayfish.
Q The pond you referred to, isn’t that the larger body of water, the dividing line between Hilliard and Harrell?
A Yes, got a dam around it.
Q The dam is on the—
*343A Harrell.
A —tract? And it backed up there and made a common pool under the fence?
A Yes, sir.
Q And was a substantial amount of oil there ?
A Yes, sir, on one side where we went was, below it there. It was, I would say it was 30 percent covered, I believe.”
As to his familiarity with land values in the area and the market value of the Hilli-ard and Harrell tracts before and after the damage occurred, Mr. Vancil testified:
“Q Now, Mr. Vancil, are you familiar with land values in the area out there where your ranch and their places are located, you know of time to time in the past few years of some land that’s been sold and some bought ?
A I know a few, yes.
Q Have you worked lands so that you know something about the productivity of different types and kinds of soil, know something about the various land for farming purposes?
A Well, some. I would not consider myself expert on it.
Q Do you do any cultivating on your place ?
A Yes, some cultivation.
Q How much?
A I have 140.
Q Considering in an attempt to arrive at a market value of Mr. Hilliard’s 306-acre tract and viewing a situation where you have a willing buyer but one who wouldn’t have to buy and a willing seller but one who doesn’t have to sell, what in your best opinion was the reasonable cash market value of Mr. Hilliard’s 306-acre tract last year in July before this oil damage occurred?
A I would say it would have been, oh, fall in the range between $175 and $200; probably closer to $200.
Q Being familiar with the place you know approximately half or a little more is in cultivation, don’t you?
A Yes, sir.
Q Now, after this oil damage occurred last year and this year, last half of last year and early part of this year, using the same criterion what do you think would have been the cash, reasonable cash market value of his 306 acre tract of land? We just want your best judgment.
A I imagine that would have dropped it, oh, in the neighborhood to about $100, maybe $125.
Q Per acre?
A Yes.
Q Now, on the Harrell tract the evidence shows that most of it except for a few acres is in cultivation, and before this oil damage what, using the same criteria, would have been the reasonable market value of his 160-acre tract?
A Well, excluding any difference in allotments, of the Government allotments or improvements?
Q That’s right ?
A I would have said, oh, in the neighborhood of $225.
Q And then after the oil damage occurred and using the same criteria what do you think would have been the reasonable cash market value of it?
A About $200.
Q Have you been familiar with Mr. Harrell’s 160 acres for a good long time, Bob?
*344A Well, my folks operated the place in about ’40 or ’41, and his dad has worked, helped dad lambing, so has Mr. Harrell, back in the ’40’s.
Q You have been familiar with it 25 years or so?
A Yes.”
The witness John Earnshaw lived in the Norton community until December of 1965 when he moved to Ballinger. He testified he was familiar with the Hilliard 306-acre tract and Harrell’s 160-acre tract; he examined the tracts of land for oil damage twice, about the 12th or 14th of March and again on the 29th of March, 1968. He detailed the oil damage that he observed on both tracts and on the creek in both tracts, including a large pond or tank on the Harrell tract which was heavy with crude. He also said there were dead trees and vegetation and evidence of burning and that everything was completely burned off and black 15 or 20 steps on either side of the creek. He further testified that he had worked in the oil field at times earlier in his life, had been familiar with several ranches and farms over the county that had this kind of damage and had never seen a tract of land of any type where crude oil was spilled on it that anything productive grew back on it and that his personal observation goes back into the late ’40’s. Concerning the market value of the tracts of land, Mr. Earn-shaw testified that he had bought and sold land in the area in the last few years and knew of other sales and purchases of land in the area in the last five or ten years and that in selling his own land and buying other land and checking around to determine the relative value of the land, he was familiar with the value of land in Runnels County and he was familiar with these two tracts of land on the 1st of July, 1967, that he had seen the oil damage on the tracts and it would make a difference in the value of the Hilliard tract and the Harrell tract. He then testified that the reasonable market value of the Hilliard tract before the oil damage was $170.00 to $175.00 per acre and after the oil damage it was $100.00 per acre; and he testified that the reasonable cash market value of the Harrell tract before the oil damage was $300.00 per acre and that after the oil damage it was $150.00 per acre.
The witness J. B. Fiveash lives in the area and has a place right across the paved highway from the Hilliard tract; he made an examination of the Hilliard and Harrell land in March of 1968 and he detailed the oil damage to the tracts of land and the oil in the creek and said the thickest oil at that time was right there on the fence line between Harrell and Hilliard; he saw evidence of burning of trees and vegetation and the creek still had oil floating on the water; there were test holes dug and they got some mud and smelled it and it surely had the smell of oil in it and that was by the Harrell fence line. In regard to damage caused by crude oil being permanent, he testified that he had oil damage on the Newman place; that “not a stalk growed on it since oil got on there;” he didn’t expect that land to ever come out; that they dug down on the Hilliard tract, a lot of holes were dug and he reached down and went in deeper than where the holes were and smelled oil on the land and it definitely had a strong odor and it looked like you might squeeze some out though he didn’t do so; and he (Hilliard) had a lot of country that looked like it was as bad as the Newman place where oil came out. He further testified that the oil damage would affect the price of the land and that he just wouldn’t be in the market for it unless it was a real bargain.
The witness C. J. Robinson lived neighbors to Harrell and Hilliard and was familiar with their tracts of land, he examined the places in March of 1968 in the company of Mr. Hilliard and observed the oil and he detailed the damages to the land; he said that this same pipeline ran through his land and had a hole in it right after they put the pipeline in and the oil ran off down about 50 or 75 yards. As to the damage to the tracts, he said if he was *345wanting to buy the 306-acre tract or 160-acre tract, he would decrease the price for the whole tract $25.00 or $30.00 an acre on account of this damage to the land and water.
Without attempting to narrate the lengthy testimony of the Appellee Hilliard, he testified at length as to the damages from the oil to his land, that he could name 10 or 12 leaks in the line, and that his land had been damaged at least to the extent of $20.00 to $25.00 per acre.
Appellee Harrell testified concerning the instances beginning in the winter of 1966 and to the time of trial in which he had discovered oil in his creek on his place and along the banks and about the attempts to burn it off and that there was still oil on the water after they attempted to burn it off and that oil is still coming down the creek; that there was oil down Quarry Creek into his place two-thirds of the way and that it was about a quarter of a mile from Hilliard’s south line to Harrell’s south line; that he had cultivated land down along the creek on both sides and a garden plot just off the stream, that he irrigated by catching water out of the stream when it was on a large rise and that he had a tank off stream to catch such irrigation water in and that on a large rise the creek will overflow into the garden place; that he grows many vegetables in the garden plot and sells some and uses some for lis family of eight; that his fields on both sides of Quarry Creek grow crops better in dry years than other land in the vicinity because of subirrigation there; and the garden spot is in the bend of the creek and there is gravel and water under it.
And he further testified on cross-examination as follows:
“Q You are not — even though Mr. Underwood talked to you in great detail as to your garden area and how that irrigation works down there and how that all looks, are you complaining that that has been damaged to a great extent?
A Underground I don’t know, since that is gravel, what is under there and will come out since it has been approximately three years oil has been coming down there, and I assume, like you said, it goes on top of water, right?
Q Yes, sir.
A Wouldn’t it go under this garden?
Q It may well do.
A That’s what I was thinking, and come up later.”
Mr. Robert H. Northington testified for appellant. He testified that “starting at the creek going southwest towards the oil wells I found an area of heavy oil stain on the surface, and in looking at the edge of the creek bank it was more than on the surface. It was pretty well saturated at the break on the creek. The oil stain was found on a strip 150 feet by 10 feet to 50 feet wide. The acreage was estimated to be ¾0⅛ of an acre. He testified to another oil stained strip 1200 feet by 10 feet, estimated to contain 2%ooths of an acre. He described another greasy spot 150 feet to 200 feet square; another greasy spot 3500 feet square. These areas were all on the Hilliard land. As to the Harrell land, he testified that the only evidence of oil he saw was on the creek banks.
Mr. Northington, who qualified as a valuation expert, after giving his opinion as to the values of the Hilliard and Harrell places without considering any damages caused by the oil leaks testified:
“Q You testified you saw oil damage; could you take that into consideration?
A Absolutely.
Q Would you tell us if you arrived at any figure in regard to the damage that has occurred because of this oil damage you found on this place?
*346A You want just the figures ?
Q Yes, sir. Give us the total figure at this time?
A In my opinion the Harrell place, total damage would he $2500.
Q The Harrell?
A No, the Hilliard place. All these names start with an H. Tract A, Harley Hilliard’s place, about $2500; negligible on the Harrell; I say $200.
Q How is it you testify $2500 on the Hilliard place?
A The primary part of this damage is of the value assigned to the cost of remedying the damage. There is a basic principle, I would call it, that the damage can’t exceed the value, the amount it would cost to remedy that damage, and in my opinion that damage could be remedied on most of the place.
Q By what method?
A The two areas of oil stain on the bank of the two creeks, measuring them off at the extremes, not trying to follow the variation in the outline of the oil, and figuring an average depth of 36 inches times the square footage you can convert to yards; and I converted square footage to yards at 36 inches down and the number of yards that need to be removed times the cost of removing and I feel like you can remove all this oil damaged soil, get it off the place entirely, don’t have any further seeping on the place, and you have a cleaned up and better tract, better than you had going in. This is true, I think, on both tracts. * * *
Q Based on your knowledge as a 1Í-censed appraiser, considering the facts and evidence you obtained when you appraised the Hilliard 306-acre tract in ’65 and ’68, have you formed an opinion as to its fair market value immediately before the occurrence of the oil damage in question ?
A Yes.
Q As of that time?
A Yds, sir. * * * I believe I said a while ago that figure would be under $40,000.
Q Based upon your knowledge you have acquired as I previously said, on this Hilliard 306-acre tract what is your opinion, what is the fair market value of the land after this damage occurred and deduct from that the six percent rise that you previously referred to?
A Well, I think I also testified that my estimate of the fair market value as of August 31st was $41,-000; it was $43,500 less $2500 damage, $41,000.
Q It would be the figure you gave me a minute ago less $2500, is that correct ?
A Yes, sir.
Q It is your opinion the difference in the fair market value immediately before and immediately after is $2500?1
A That’s right.
Q And using the same type of thinking so I won’t go back over the whole thing again, how would you apply that to the Harrell tract ?
A Well, my opinion as to the difference in the fair market value immediately before and immediately after was $200.”
*347This Court has failed and refused to suggest a remittitur under the mandatory provisions of Rule 440, T.R.C.P. The fact that it has sustained points that the damages awarded by the jury are not sustained by sufficient evidence does not relieve the Court of this mandatory duty. Houston Belt and Terminal Ry. Co. v. Lynch, 221 S.W. 959, Tex.Comm. of App. (1920); Carter v. Texarkana Bus Co., 156 Tex. 285, 295 S.W.2d 653 (1956); Adams v. Houston Lighting and Power Co., 158 Tex. 551, 314 S.W.2d 826 (1958); Rector v. De Arana, 398 S.W.2d 911, Tex.Sup. (1966).
It is true that the Court has also sustained points that the evidence is insufficient to support jury findings that the two tracts of land suffered permanent damages.
It is my opinion that some permanent damage to these tracts was proven by the testimony of appellant’s own witness, some of which has been quoted above; thus, it is established as a matter of law.
In Fort Worth & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S.W. 227 (1889), it was held that fire damage to the roots of grass which made the turf was an injury to the land the damages for which should be measured by the difference in values before and after the fire even though the land would be as productive as ever in three or four years. Surely, it must be held that damage which could only be repaired by removal of a large quantity of top soil was permanent damage.2
This case was tried upon the theory that the damages to the land, if any, were permanent, otherwise testimony as to the difference in market value of the land would have been inadmissible. Damages, Vol. 17, Tex.Jur.2d, Sec. 241.
I am also of the opinion that Rule 440 should be complied with even though some permanent damage to the land has not been established as a matter of law under the opinion of Justice Norvell in the case of Burchfield v. Tanner, 175 S.W.2d 756, Tex.Civ.App. San Antonio, reversed on other grounds 142 Tex. 404, 178 S.W.2d 681 (1944). There it was held that the suggestion of a remittitur was proper even though the amount of damages to be awarded depended upon the answers to several jury issues, not liability issues, rather than upon an issue calling for a certain amount of money.
Whether these lands were permanently damaged and the amount of such damage having been established by some probative evidence, it seems to me that they should be considered together in construing Rule 440.
Under the opinion of this Court, ap-pellees can never recover anything for permanent damage to their land because, in my judgment, the case as to this is fully developed and this Court, as indicated by its opinion, will never sustain a finding of permanent damage. Rule 440 was designed to prevent such a stalemate as is posed in this case.
I would affirm the judgment of the trial court except as to the dissolution of the injunction which I agree to on the assumption that the legal remedy for damages is adequate, which at this point is not the case.
. This is the proper inquiry. Southwestern Bell Telephone Co. v. Willie, 329 S.W.2d 466, Tex.Civ.App. Austin, writ dismissed (1959).
. In Ownby Drilling Co. v. McClure, 264 S.W .2d 204, Tex.Civ.App., Austin, writ ref. n. r. e. (1954), this Court upheld a jury verdict awarding damages of $16,-050.00 (the difference between the before and after values) for permanent damages to a 642 acre tract of land, the damages being occasioned by the pollution of a water well on the land. The Supreme Court made a similar holding in General Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668.