(dissenting).
I respectfully dissent and would reverse the judgment of the trial Court, in the belief that we are committed to apply Rule *67820 of the Railroad Commission to this case, and that there is conflict in the issues found by the jury which requires a remand.
As to the application of Rule 20, the jury found that each defendant (issue No. 1) “in disposing of salt water on Plaintiffs’ land . . . failed to protect from pollution fresh water underlying Plaintiffs’ land,” (issue No. 2) such failure was not negligence, and (issue No. 3) such failure was a proximate cause of the pollution of fresh water underlying plaintiffs’ land.
In Gulf Oil Corporation v. Alexander, 291 S.W.2d 792 (C.C.A.1956), the Amarillo Court of Civil Appeals decided the exact question before us, so that we have the choice of following that decision or being in direct conflict with it. There is no distinction to be made between the two cases, except theirs was an adjoining landowner to the oil and gas lessee while ours is an owner of the surface only on the same premises as the oil and gas lessee. The distinction has no bearing under the theory on which the cases were tried. The Amarillo Court held that there was no evidence of negligence, but that the landowner was entitled to recover because of the violation of Rule 20, saying:
“In the light of the above authorities, it must be observed that the rule at issue in the cause here on appeal is not a legislative enactment but it is a rule duly promulgated by the Railroad Commisssion of Texas under express authority from the legislature. There is no proof of negligence in the cause other than might arise from the undisputed proof that appellant in polluting appellee’s fresh-water strata violated a duty placed on it by Rule 20. Irrespective of any technical discussion of the principles of negligence, it is ruled that the violation of Rule 20 by appellant in polluting the fresh water supply of appellee’s irrigation well gave right to the cause of action on the part of appellee for his damage suffered by reason of such violation.”
As noted by the majority, the Supreme Court (156 Tex. 455, 295 S.W.2d 901) refused applications for writ of error in a Per Curiam opinion saying:
“We have concluded that there is evidence to support the jury findings of common law negligence and proximate cause, and both applications are denied . .with the notation ‘Refused. No reversible error.’ This order must not be taken as indicating either approval or disapproval of the views expressed by the Court of Civil Appeals as to the legal effect of Rule 20 promulgated by the Railroad Commission of Texas. 291 S.W.2d 792.”
Since the holding of another Court of Civil Appeals still stands, not being disapproved, it seems to me that the better course is for this Court to apply the law in accord with it. Also, it can be argued that the Supreme Court was in accord with the application of Rule 20, under some view, in their opinion in Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961) in which the evidence as to negligence was practically the same as in the case before us. In Brown v. Lundell, the majority opinion makes no mention of Rule 20, but the dissent makes a valid argument that the majority was applying it, without name. In Brown v. Lundell, the parties were lesser and lessee in an oil and gas lease on the premises involved with certain of their rights and duties controlled by the lease. In fact, one imminent writer has observed that the dissenting opinion was founded principally on reasoning that it had not been demonstrated that the defendant used more land than was reasonably necessary, as allowed by his lease. Browder, The Dominant Oil and Gas Estate, 17 Sw.L.J. 25. Because of the application of Rule 20 by the Amarillo Court of Civil Appeals in Gulf Oil Corporation v. Alexander, and because of the language of the Supreme *679Court in Brown v. Lundell, I am of the opinion that we should apply Rule 20 in this case.
It is possible to resolve all conflicts in the jury findings except those pertaining to damage. There are findings that there was no damage. These conflict with findings that there was a diminution in market value, that the damage was permanent, that there was a failure to protect which proximately caused pollution, and that salt water ran down the walls of the Sherrod well into the fresh water formation. Obviously the conflict between damage and no damage is a material one from which different judgments would result, and requires a reversal, if it cannot be resolved. By issues numbered 41A, 41B, 41C, and 41D, the jury found as to each defendant an issue like the following 41A:
“Do you find from a preponderance of the evidence that Plaintiffs’ land has been damaged by reason of the pollution, if any, of fresh water under Plaintiffs’ land, proximately caused by Phillips Petroleum Company.”
Answer: “It has not been damaged.”
By the very next issue, No. 42, the jury found that “the damage, if any, to Plaintiffs’ land by reason of pollution, if any, of fresh water” is permanent. Conflict: The damage is permanent, but there is no damage. By issue No. 43, it was determined that the plaintiffs discovered salt water pollution in the irrigation well in the NE/4 of Sec. 44 on or about November IS, 1963. Conflict: There is salt water in the irrigation well, but no damage, by reason of pollution. By issue No. 44 it was determined that “the reasonable market value of plaintiffs’ land immediately before such discovery of the salt water pollution,” was $55.00 per acre. By similarly worded issue No. 45, it was determined the value of “Plaintiffs’ land” was $45.00 per acre immediately after discovery of the salt water pollution. Conflict: Salt water pollution reduced value of “Plaintiffs’ land” by $10.00 per acre, but there was no damage to “Plaintiffs’ land,” by reason of pollution.
And as noted earlier, by issues Nos. 1 and 3, the jury found that the defendants failed to protect the fresh water from pollution, and such failure was a proximate cause of the pollution of such fresh water. Add to that the findings by issue No. 62:
“Do you find from a preponderance of the evidence that salt water reached the Trinity sand in the 1956 Sherrod irrigation well by running down the sides of the uncased hole?”
Answer: “We do.”
The jury made additional findings as to this well: By issue No. 72 it was found that the cash market value of the one-quarter section on which it was located could not be restored to what it was prior to the discovery of salt in it by drilling additional wells, nor, (issue No. 74) by casing it and pumping thousands of barrels of water out. A conflict with the “no damage to plaintiffs’ land” issues can only be avoided by taking the unreasonable position that pollution by salt of the fresh water in a well used for irrigation purposes does no damage. Even then, such untenable position would be in conflict with findings as to diminution of fair market value. Another way to avoid conflict would be to assume that when the jury found there was no damage to plaintiffs’ land they were thinking only of the surface with its growing crops. This would be an unwarranted assumption in view of the plain use of the word “land” in each of the issues.
My summation of this case is that liability is established because the prior decisions discussed make applicable Rule 20 of the Railroad Commission and eliminate the necessity for a finding that the failure to protect was negligence. I make no determination as to the evidence on the negligence issue, but would simply follow the law as I believe it has been interpreted. This is more than a “thou shall not pollute interpretation since it requires proof of a *680failure to protect which proximately causes pollution of fresh water. A judgment of remand is required because of the conflicts as to the damages.
There remains the matter of contributory negligence mentioned by the majority. There is none on the primary case, which is based on the Sherrod well. It' was found to be salty on November 15, 1963. The damage issues were as to value before and after that date, so any failure to case that well after that date or any drilling of the Murfee test holes after that time had nothing to do with the damages found to exist on November 15, 1963. At the time the damages occurred, plaintiffs had no duty to case the Sherrod well. Art. 848a of the Penal Code says that “Every water well drilled, dug, or excavated in this State which encounters salt water . . . ” shall be cased, etc. Until the pollution occurred, the Sherrod well had no salt water and Art. 848a did not apply. Any argument that the finding of issue No. 62 that salt water reached the Trinity sand by running down the uncased walls of the Sher-rod well constituted a violation of Art. 848a is without merit. As the issue stands in this record, it is merely an evidentiary finding as to how the defendants polluted. It thus harmonizes with the finding that they “failed to protect.” It must be remembered, that this is plaintiffs’ land on which defendants have placed enormous amounts of salt in reliance on its not being able to penetrate the limestone. But that limestone and the fresh water under it are also plaintiffs’ and they may drill and leave uncased wells as they please, in the absence of conditions set out in Art. 848a. By bringing the salt water from below and placing it above the plaintiffs’ fresh water, defendants have cast the burden on the plaintiffs to case it off wherever it is encountered or be in violation of Art. 848a. Salt water had not been encountered by the plaintiffs in the Sherrod well and there was no duty to case it prior to November 15, 1963.
I would reverse and remand this case.