ELR Citation: ELR 20545
No(s). 00-6043 (10th Cir. Apr 3, 2001)

The court affirms a district court grant of summary judgment to an oil company that a property owner had sued for damage caused to his land by oil spills that the company allegedly caused. The company owned the land at issue, which it used as an oil tank farm, until 1955 when it sold it to the current owner's father. After discovering oil contamination in 1997, the current owner brought public nuisance, private nuisance, negligence, and trespass claims against the company. The court first holds that the public nuisance claim cannot survive because the owner failed to show that the company caused the contamination of the property. The court then holds that res ipsa loquitur does not apply to the public nuisance claim because the owner offered no evidence that oil spills occurred during the company's ownership of the land. The court also holds that the owner cannot bring a private nuisance claim because private nuisance is only available to adjacent landowners and not, as here, to a successor landowner. Moreover, the court holds that the negligence per se claim fails because there is no proof that the company violated any statute or caused any pollution. The court next holds that there can be no trespass because the owner only contends that the contamination occurred during the company's ownership. Thus, the alleged contamination did not involve a physical invasion of property owned by anyone but the company. In addition, the court holds that the owner cannot show that the company has been unjustly enriched by avoiding the costs of remediating the property because the owner did not show that the company caused any contamination to the property.

Counsel for Plaintiff
Bill M. Roberts
Durbin, Larimore & Bialick
920 N. Harvey St., Oklahoma City OK 73102
(405) 235-9584

Counsel for Defendant
M. Benjamin Singletary
Gable & Gotwals
1100 Oneok Plaza
100 W. 5th St., Tulsa OK 74103
(918) 595-4800

Kelly, J. Before Brorby and Lucero, JJ.