The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-03-11

| There is no such thing in such laws, either
| as to wild animals or fish, to the effect that
| they may become the property of the owner
| Of the land on which the animals are found,
| or in the waters of which the fish are
| found. And there is no such thing in such
laws to the effect that after title has once
vested by actual reduction to possession,
that the same may wander off and vest IN
some one else. To say that the title to
natural gas vests in the owner of the land
In or under which it exists to-day and that
tomorrow, having passed into or under the
land of an adjoining owner it thereby be-
comes his property, is no less absurd and
contrary to all the analogies OF the law
than to say that wild animals or fowls in
their fugitive and wandering existence in
passing over the land become the property
OF the owner of such land, or that fish in
their passage up and down stream or
water become the property of each success
sive owner over whose land the stream
passes. 1t is as unreasonable and untenable
as to say that the air and the sunshine
which float over the owners land is a part
of the land, and is the property Of the
owner of the land. We therefore, hold that
the title to natural gas does not vest in any
private. owner until It is reduced to actual
which we have quoted is not violative of
the Constitution, as an unwarranted inter-
ference with private property"
The next contention of the appellee an
swered by the opinion was that a proper
construction of the gas waste law makes
wholly inapplcabe to the subject of this
suit the prevention of the waste of gas
as 1t does not apply to a well unless
1t endangers persons or property. 1t is
not in the language of the act that counsel
claim to find this meaning, but they claim
TO find It in the preamble thereto, reading
thus: Whereas, great danger to life and
injury to persons and property is liable TO
result from the improper unsafe and negli-
gent sinking, maintenance use and opera
ton OF natural-gas and oil wells; there
fore etc. 1t is not claimed, as it cannot
with reason be, that the language of the
act is either ambiguous or doubtful in its
meaning infrA0Ilanf
isiature, in the preamble to statute, to
recite particular mischief, while the legal
mischief recited. The evil recited is but
the motive for legislation; the remedy may
both consistently and wisely be extended
beyond the cure of that evil; and if, on re-
view of the whole act, a wider intention
than that expressed in the preamble APP
pears to be the real one, effect is to be
given to it, Notwithstanding the less extern
sive import of the preamble. -
1T is next contended that the act does
intended as is claimed, to apply only to
wells producing oil alone and to wells pro-
duGing gas alone and 5. not to what counsel sci
and gas, as is the case with appellee's wells,
as disclosed in the complaint. At the time
OF the passage of the act the chief waste
of natural gas which was going on, and
had been for some time, as shown by the
eleventh annual report Of the United States
Geological Survey for 1889-1S90, and the cur
rent history of the times, resulted from
what counsel term combination wells, pro-
DOIn OIL ana gas, the WAISTS lIOul
wells producing gas alone was small in COM
parison with that from such combination
wells. In the light of these historical facts,
It would ba extremely absurd to suppose
that the Legislature intended to prevent
waste only. by closing the spigot and leav-
ing the bung wide OPEN But even the Ian
guage of the statute forbids such construc
ton. The act made unlawful, by the ex-
press words of the section quoted, is, to
any such well to escape into the open air.
In this sentence there is but one well Spo-
ken Of The prohibition is against ,aiI the es-
equally against the escape of oil, and it is
equally clear that the prohibition against
the escape of both relates to the same well;
and, therefore, if they are both permitted
to escape from the same well, the permits
sion of the escape of each is made unlaw-
made the violation thereof a crime, would
any rational being contend that an indict-
ment charging the accused with permitting
would not be good? Certainly not.
1T is next contended that there is no au--
thority or right of action in the State at
cannot maintain suit in equity, either I'M
der the statute or at common law rms
prior to the adoption of the civil code of
1852 If the objection last mentioned be well
taken. it is fatal to the complaint
THE RIGHT OF INJUNCTION.
1.-THE reason assigned in argument why
the State cannot maintain the action for
a different remedy, namely, the recovery
of penalty of $500 for each violation of
the act, and further penalty of $500 for
each ten days during which such VIOLA
ton shall continue, to he recovered in a
civil action in the name Of the State, for
the use Of the county in which such we'll
Is located, with attorneys fees and costs
of suit. And another remedy provided in
another section of the act is that certain
persons XlC1n1tV authorized
go upon the land where any well is sit
uated from which gas or oil is allowed to
escape, in violation of the act, and shut
up the same and pack and tube said well,
so as to prevent the escape of gas or oil,
and maintain a civil suit against the own
err for the costs OF such closing of said
well, with attorneys fees and costs of suit.
But this court has gone much further than
to hold that the fact that the civil remedy
given to recover penalties and the other
remedies for violations of the act does not
bar the right to an injunction"
Then follow quotations from large
number of opinions rendered by various
State Supreme Courts and also by the
United States Courts in which injunctions
have been granted because the act en-
joined was nuisance, even though that
act had been made crime by statute. The
powers of equity courts in granting injunc-
lions were shown not to be controlled by
any definite rules.
The opinion continued as follows:
ut is true that as a result of the princi-
pies announced in the previous part of
this opinion, natural gas, when reduced
TO ACTUAL possession by the landowner,
when drawn into his well, pipes, tanks
or other receptacles thereby becomes his
personal property, subject to his domn-
ion. But, as said by this court in Peo-
pies Gas Co. VS.. Tyner, supra: The rule
that the owner has the right to do as he
pleaSeS with or upon his own property is
subject to many limitations and restrictions,
one of which is that he must have due
regard for the rights of Others
"Appelleeis counsel have conceded that
the pressure in gas wells since the dis
covery of gas In this State has fallen from
$50 pounds to 80 pounds. This very strong
~ indicates the possibility, if not the prob
ability, of exhaustion. In the light of these
facts, one who recklessly, defiantly, per-
sstently and continuously wastes natural
gas and boldly declares his purpose to con-
tinue to do so, as the complaint charges
appellee with doing, all of which 1t admits
complain of being branded as the enemy
of mankind.
but appellee tries to excuse it's conduct
on the score that it cannot mine and utilize
the oil under and in its land without vast
ing the gas. But there is nothing in the
record to bear out that claim. However, If
there was, it would not furnish a valid ex-
ties of gas that is prohibited, but it is the
waste of it that is forbidden. The object
and policy Of that inhibition is to prevent,
If possible the exhaustion of the store
house of nature, wherein is deposited an
element that ministers more to the COM
fort happiness and well-being of society
than any other OF the bounties of the
earth.
Even If the appellee cannot draw Oil
from it's well without wasting gas it is
not denied that it may draw gas there
from and utilize 1t without wasting the oil.