Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1889-11-12

morrow, and will leave Pittsburg. A num-
Der of important decisions were handed
down yesterday. The Nicely boys must
hang, and Chillo, the Italian, pleaded guilty
to voluntary manslaughter.
In the case Of the Westmoreland Natural
Gas Company VS. Dewitt ct al. error to
Common Pleas of Westmoreland county,
Justice Mitchell yesterday handed down an
opinion reversing the decree of the lower
court The question involved in the suit
was whether a certain piece of land leased
for drilling purposes had been forfeited be-
cause of the company not using the gas. In
the opinion, Justice Mitchell says: The real
subject Of possession TO which complainant was
entitled under lease was the gas or oil contained
in, or obtainable through, the land. The
learned master in the case says that gas is
mineral, and while in stu is part of the land,
and therefore possession Of the land is posses
sion Of the gas. But this deduction must be
made with some qualification. Gas, it is true is
q mineral, but il is mineral with peculiar
attributes which require the application of
precedents arising out Of ordinary mineral
rights, with much more careful consideration
of the principle. involved than of the mere
decisions. Water is also a mineral, but the
decisions in ordinary cases Of mineral rights,
edents in regard to flowing or even to
percolating waters. Water oil, and still more
strongly gas, may be classed by themselves, if
the analogy be not too fanciful, as minerals
Jer0 nature. In common with animals, and
unlike other minerals they have the power and
the tendency TO escape without the volition of
the owner Their fugitive and wandering eX-
istence within is uncertain" as said by Chief
Justic Agnew in Brown VS.. Nandergrift So
Pa, l47-& They belong to the owner
of the land, and are part OF it. so
long as they are in it and are subject to his
control, but when they escape and 90 into
other land or come under anothers control the
is not necessarily possession Of the gas. If an
adjoining or even distant owner drills his
own land and taps your gas, so that it comes
into his well and under his control, it is no
longer yours but his. And equally so between
lessor and lessee in the present case-the one
who controls the gas, has it in his grasp, so to
speak, is the one who has possession, in
the legal as well as the ordinary sense of the
word.
Tested under these principles there is not
the slightest doubt that the possession of the
gas as well as the right to il, under this lease,
was the cOmplainants when the bill was filed.
They had put down a well which had tapped
the gas-bearing strata, and it was the only one
on the land. They had 1t in their control, for
they had only TO turn on a valve TO have it flow
into their pipes for ready use. The fact that
they did not keep it flowing but held it gen.
orally in reserve, did not affect their possession
any more than a millowner affects the con-
tinuance Of his water right when he shuts down
his sluice gates. On the other hand, Brown
had no possession of the gas at all, his posses
sion of soil for the purpose of tillage, etc. gave
veyed that to another. Judgment is therefore
reversed