Foote and Cypert v. Texcel Exploration and Decker determined that cattle loitering uninvited around a well and tank battery and causing destruction are trespassers, not licensees.

How it happened

Foote arranged with Yates to graze 650 head of cattle on Yates’ pasture and paid Cypert to take care of them. Texcel operated the Hertel oil and gas lease on the property. Decker was Texcel’s pumper. The lease did not require Texcel to fence off the property or its equipment.  A one-wire electric fence surrounded the wellsite and tank battery to protect the premises from, you guessed it, wandering cattle. If the wire fell to the ground or otherwise hit brush or other material it would ground out and no longer be “hot”.

There was conflicting testimony about who did or did not do what to cause the bovine incursion. In short, 300 cattle, no-doubt drunk on hydrocarbon fumes, pushed over the fence and broke a PVC pipe, spilling saltwater and oil on the ground. 132 perished from drinking oil and others were under their expected weight at sale time.

Foote and Cypert sued Texcel and Decker for failure to construct and maintain an adequate fence around the well site and tank battery which created a dangerous condition that proximately caused the death and injury of cattle. The theories were premises liability and negligent undertaking.

Plaintiffs lost. Here’s why:

In order to recover against a mineral lessee/operator for injury to cattle, an owner or lessee of the surface must obtain a jury finding on one of the following:

  • The lessee/operator intentionally, willfully, or wantonly injured the cattle, or
  • The lessee/operator used more land than was reasonably necessary for carrying out the purposes of the lease and as a result of some negligent act or omission he proximately caused injury to the surface owner’s cattle.

Plaintiffs’ failure was in ignoring these requirements and seeking to expand the law to the same standards for protecting persons from a premises defect. Plaintiffs contended that because Foote was in business with Yates and the landowner (Yates leased the property), his status extended to his cattle on the entire premises, including the area where Texcel operated. The evidence established that the cattle did not have the status of invitees on the area of Texcel’s operations. The premises liability theory concerns the duty an owner or occupier of land owes to a person injured on the property.

By denying the cattle were licensees the jury essentially determined that the cattle were trespassers.  There was abundant evidence for this conclusion.

Texas has never categorized livestock as persons for premises liability purposes. The rule likens wandering cattle and other domestic animals to trespassers upon the legitimate area of oil and gas operations.

Other futile theories

Plaintiffs argued that the cattle were poisoned in an area where they were undisputedly invitees. An operator in Texas has no duty to fence or otherwise protect or prevent livestock from entering the premises of mineral lease. Tercel was not liable for the fluids deposited outside its legitimate area of operations because the cattle caused the fluids to escape.

The plaintiffs contended that the fence was inadequately maintained. Because there was no duty in the first place, the inquiry was whether the defendants acted in a way that required imposition of a duty where one would not otherwise exist. This, the plaintiffs failed to prove.

Your musical interlude: What Muddy Waters went without during Lent..