The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-03-11
1t Holds Unanimously that the State
Can Abate, by Injunction, This
Dissipation of Gas.
THE CRUEL OIL APPELLEE
MERCILESsLY HOLDS A CALAMITY
OVER HEADS OF THE PEOPLE.
Assistant Attorney General Active In
the Gas Belt-The Heavy Fines
Must BE Paid.


waste Of natural gas is public nuisance,
and can be abated by injunction on the
part of the State. The case considered was
that of the suit for injunction brought by
the State against the Ohio Oil Company,
one of he Standard Oil concerns. which has
in defiance of the law been permitting the
gas from its oil wells near Alexandria to
escape into the air.
The Madison Circuit Court sustained the
demurrer of the company alleging INSULT
cient facts to constitute a cause of action,
and this judgment was appealed from by
the States attorneys. The attorneys for
the State were Attorney General Ketcham,
Assistant Attorney General Merrill Moores,
Ferdinand Winter, c. c. Shirley, of Koko-
mo- NJ. A. Chapman, of Anderson, and Dan
iel w. Seaman. prosecuting attorney of
Madison county. AS soon as the courts de-
cision was rendered Merrill Moores left for
Muncie and Alexandria to ask the lower
courts to issue writs of injunction against
the Standard Oil Company and the Ohio
Oil Company in accordance with the courts
decision The State intends to enforce the
law as interpreted by the court to the full
est extent and If the oil companies do not
Immediately comply by anchoring their
wells and conserving the flow Of gas the
work will be done under the direction of the
county sheriffs The decision is a victory
for the thousands of private consumers and
the manufacturing industries that have a
vital interest in the preservation of the nat
ural gas supply.
THE OPINION UNANIMOUS.
The opinion WI written by Justice Nc
Cabe, and was concurred in by all the JUS
tees. 1t first gives a lengthy consideration
to the Importance of natural gas to the
citizens and the industries of the State.
Among other things it says:
Natural gas exists in large reservoirs,
or series of reservoirs, connected with
each other, underlying the gas territory,
and the diminution or consumption of nat
ural gas taken from any part of them af-
fects or reduces correspondingly the COM
mon supply If the gas supply is according
ly husbanded and protected it will last for
many years and continue to supply the va
rious interests named with abundant fuel,
and the population, wealth and other ma
terial interests of the State will continue to
be benefited and enhanced, and the comfort
enjoyment and happiness of the people of
the State greatly increased"
The opinion then reviews the allegations
of the State that the Ohio Oil Company is
persisting in the avowed purpose of allow
ing the gas from it's wells to escape, thus
greatly diminishing the States supply and
the property Of the State. The State fur
Their maintained that 1t has no adequate
remedy at law for the redress of it's grew
ances complained of; that it is impossible
accurately to fix in dollars and cents the
damage the plaintiff has sustained and will
sustain by reason of the wrongful and un-
lawful acts Of the defendant" and that,
therefore injunction Is necessary in order
to restrain the continued unlawful acts of
the defendant 1t was further maintained
that unless injunction relief was obtained
one OF the greatest natural resources OF the
State viii be ultimately destroyed; that in
order to obtain even partial and made
quate remedy for the wrong done a multi
plicity of suits must be resorted to, en-
failing great expense and affording no con-
siderable relief.
The opinion then proceeds to consider the
contentious of the counsel for the oil COM
pany. The first contention was that the
State had no right to maintain such a
suit. The court says: But the courts of
the State and United States are open to the
State. both in it's sovereign capacity and by
virtue of it's corporate rights. in both of
which characters it sued here" The next
contention made by the appellee or oil COM
pany was entertained in the following para
graph Of its brief: 1.-THE State contends that
the manufacturers and gas companies shall
be allowed that privilege for the purpose of
bargain and sale, although 1t incidentally
AYERS benefit to the people, and all this to
the exclusion of an oil company who is also
business. In such matters of private con-
Germ the State has no interest, and should
not have any,"
This argument is effectually disposed of
by the court in the following language:
1T is true the production of oil is a le-
Ultimate business, but the waste and de-
struction of natural gas. which appellees
demurrer admits 1t is engaged in, defiantly,
constantly and in utter contempt of the
laws of Indiana and the welfare and COM
fort of its citizens, is not only not legiti-
mate business, but has been placed under
the ban Of two prohibitory statutes in this
State"
CONCERNING THE ESCAPE OF GAS.
Then follows a statement Of the law pro-
hibiting the escape of gas from any natural
gas or oil we'll for more than two days after
the gas or oil is struck.
THE constitutionality of this act" con-
tinues the opinion, sis assaied by the APP
pellee. But the former act, being very
much of the same nature as regards its
constitutionaiity as the latter, was assailed
by the appellant in Townsend VS.. State
Indiana (47 N. E., 49,, for every conceivable
constitutional objection, and for every OBJ
lection urged to the act now under con-
SiQeration, and this court in that case up
held the constitutionality of that act. 1t is
asserted with great confidence that the gas
in or under the appelleeS land is a part of
the land, and that 1T is reasonable use
by permitting its escape into the open air;
and that a statute prohibiting such a rea-
sonable use is unconstitutional And sew
eral Pennsylvania and Ohio cases are cited
together with one from New York and one
in West Virginia, to the effect that petro-
leum is q mineral, and while ii is in the
earth it is a part of the realty; and that
when ii reaches a We'll, and is produced on
the surface, it becomes personal property
and belongs to the owner of the well. 1t is,
therefore, argued that natural gas is like
wise part OF the land in or under which
ii is found, and that the owner of the land
may and has a lawful right to assert abso-
under his land, TO the center of the earth,
and for an unlimited distance upward from
the surface.
1.-The force Of these authorities depends
entirely upon the analogy between oil or
petroleum and natural gas in or under the
marked difference between these two sub
stances in their nature. This court has
likened natural gas as to its property char
acteriStics to fish in the waters and wild
game in the forest before taken and re-
duced TO possession. Townsend VS. State
supra, and cases there cited"
The counsel FOR appellee, continued the
opinion, rely on a quotation made by this
court in the latter case from the Pennsyl-
vania Supreme Court, the part of which
quotation was most favorable to appellee's
contention, being this: "They (the water
gas and oiD belong to the owner of the
land, and are part of 1t, so long as they
are on or in it, aud are subject to his
control; but when they escape, and go into
the title Of the former owner is gone" This
much of the quotation, says the opinion,
was not adopted as law by this court in
either of the cases in which the quotation