Opinion by
Mb,. Justice Williams,
The learned judge of the court below was quite right in saying that the questions raised in this case “ are of great importance and delicacy, and have never been determined in any court.” The production of oil and gas in this state has furnished many questions “ of great importance and delicacy,” that were new, and required to be considered and determined upon facts that were never dreamed of by the sages of the common law.
In the treatment of this case it is a matter of first importance to get a clear apprehension of the facts on which the questions are raised. There are two plaintiffs who join in the bill whose interests, while like in kind, are nevertheless several and distinct. There are several defendants but their interests appear to be joint. The two plaintiffs hold separate leases on parts of tracts in Warren and Forest counties, Nos. 5202, 5203, [337]*3375207, and 5209, aggregating about 2200 acres. The gas company began drilling on its leases in 1887. Hague began in 1888. Each has a gas well or wells furnishing gas in sufficient volume to enable the owner to utilize it by transportation to and sale in towns in the vicinity. The defendants are owners and lessees of part of tract No. 5207, which adjoins the lands of the gas company and is not far from the lands of Hague. In 1890 they drilled a well on their tract and obtained gas in considerable volume, but not sufficient to enable them to utilize it by transportation and sale. They have therefore allowed it to escape into the open air. The plaintiffs allege that the “ geological formation in that locality ” is such, that the gas-bearing sand-rock underlying all these tracts and forming the common reservoir or deposit from which the gas is obtained, “is subject to drainage by the drilling of wells on an}^ part thereof.” For this reason they assert that “ the flow of gas from the said well of defendants is so great that it will, if allowed to go to waste, seriously and irreparably injure the wells of the plaintiffs by drainage from the lands adjoining and near to said defendants’ wells.
To prevent this they state that they entered on the defendants’ land, and at a cost of about two hundred dollars shut in the gas and closed the well. The defendants then threatened to remove the cap or plug and permit the gas to escape again into the air. Upon these facts the plaintiffs asked the court below to enjoin the defendants from removing the cap or plug from the easing or tubing in the well, and from “permitting the gas therefrom to flow into the air or otherwise go to waste.” The injunction was granted, and from that decree this appeal was taken.
The affidavits show that the defendants drilled their well in 1890 at the suggestion and request of the gas company, and that negotiations for its purchase by the gas company have been conducted at some length but without resulting in a bargain. This fact, that the well in controversy had been drilled at considerable cost by the defendants at the request of the gas eompanjq the learned judge rightly regarded as a significant one. ’ In the opinion filed by him, which is an able one, he says that this fact “ might defeat this application so far as the gas company is concerned;” hut he regarded it as of no conse[338]*338quence so far as the other plaintiff was concerned, for he immediately added “ but as it cannot affect the plaintiff Hague it is not necessary to consider' it at this time.” He then proceeds to state and consider the question on which his decree was based, upon a state of facts such as might arise where an adjoining owner was guilty of malice or negligence in the conduct of operations on his land resulting naturally in injury to his neighbor. Hut is this conclusion of the learned judge that Hague stood on higher ground than the gas company a correct one ? The acts complained of were the drilling of the well in 1890 when the wells of both the plaintiffs were in full operation, and the subsequent failure to utilize or shut in the gas. The drilling of the well was accounted for, and the suggestion of malice or negligence therein negatived by proof that it was done at the instance of the gas company.
This company had a considerable gas plant, and was engaged in the supply of gas to its customers for fuel. It was interested in the development of the region, and evidenly expected to buy the defendants’ well if it was of sufficient size to be capable of utilization. The defendants and the gas company could not agree upon the price of the well after it was drilled; but the fact that it was drilled at the request of the company and not of the mere motion of the defendants was an answer to any allegation of malice or negligence on the part of Hague as well as on the part of the company, since it accounted for the act of drilling by assigning a motive therefor both lawful and neighborly. It will not do to say that an act, thus accounted for as to one plaintiff, may be assumed to be the result of malice or negligence as to the other, in the absence of proof to sustain the assertion. These plaintiffs stand on common ground. Neither of them can complain of the defendants for the act of drilling the well on their land on any other ground than the existence of malice or negligence, and when the act is accounted for in such a manner as to show that it was not done with malice, or in negligence, but in good faith, as an act of ownership and at the solicitation of the gas company, the character of the act is established, and as a basis of relief it falls out of the case. What have we then ? Three landowners owning considerable holdings in the same basin or overlying the same gas-bearing sand-rock, each having an open gas well or wells on his land, [339]*339drilled without malice or negligence, in a lawful manner and for a lawful purpose. Two of these owners have been able to utilize the gas from their respective lands and find a market for it. One of them has not been so fortunate. He has gas from his well, but, up to the time of the filing of this bill, he has not been able to utilize or dispose of it, and his gas has gone to waste for that reason. His more fortunate neighbors come into a court of equity and ask that he shall not be permitted to let his gas run, because, while this gas is his own, underlying his tract, and finding its way to the surface through his well, it has a tendency to drain the sand-rock and so to reduce ultimately the flow of gas from their wells. This would be equally true if the defendants were able to utilize their gas; yet it is conceded that in that case their right to the gas from their well would be as incontestable as the right of the plaintiffs to use the gas from theirs. How is that right lost? By their inability to find a purchaser ? If they can find a purchaser, or turn the gas to any useful purpose, their right to the gas that flows from their well is conceded. If they cannot, their right is denied. Their well must be shut in, while their . successful neighbors drain the entire basin, through their open wells, and receive pay for the gas. This is a proposition to limit the power of the owner over his own by the use he is able to make of it. If he can sell his gas or his oil, or turn it to some practical purpose, his power over it as owner is unabridged. If he cannot find a purchaser, or a practical purpose to which to apply his yield of gas or oil, then his power as owner is gone. This would be an adaptation to actual business of the spiritual truth that “ to him that hath shall be given, but from him that hath not shall be taken away even that which he seemeth to have.”
Does the. maxim,
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Opinion by
Mb,. Justice Williams,
The learned judge of the court below was quite right in saying that the questions raised in this case “ are of great importance and delicacy, and have never been determined in any court.” The production of oil and gas in this state has furnished many questions “ of great importance and delicacy,” that were new, and required to be considered and determined upon facts that were never dreamed of by the sages of the common law.
In the treatment of this case it is a matter of first importance to get a clear apprehension of the facts on which the questions are raised. There are two plaintiffs who join in the bill whose interests, while like in kind, are nevertheless several and distinct. There are several defendants but their interests appear to be joint. The two plaintiffs hold separate leases on parts of tracts in Warren and Forest counties, Nos. 5202, 5203, [337]*3375207, and 5209, aggregating about 2200 acres. The gas company began drilling on its leases in 1887. Hague began in 1888. Each has a gas well or wells furnishing gas in sufficient volume to enable the owner to utilize it by transportation to and sale in towns in the vicinity. The defendants are owners and lessees of part of tract No. 5207, which adjoins the lands of the gas company and is not far from the lands of Hague. In 1890 they drilled a well on their tract and obtained gas in considerable volume, but not sufficient to enable them to utilize it by transportation and sale. They have therefore allowed it to escape into the open air. The plaintiffs allege that the “ geological formation in that locality ” is such, that the gas-bearing sand-rock underlying all these tracts and forming the common reservoir or deposit from which the gas is obtained, “is subject to drainage by the drilling of wells on an}^ part thereof.” For this reason they assert that “ the flow of gas from the said well of defendants is so great that it will, if allowed to go to waste, seriously and irreparably injure the wells of the plaintiffs by drainage from the lands adjoining and near to said defendants’ wells.
To prevent this they state that they entered on the defendants’ land, and at a cost of about two hundred dollars shut in the gas and closed the well. The defendants then threatened to remove the cap or plug and permit the gas to escape again into the air. Upon these facts the plaintiffs asked the court below to enjoin the defendants from removing the cap or plug from the easing or tubing in the well, and from “permitting the gas therefrom to flow into the air or otherwise go to waste.” The injunction was granted, and from that decree this appeal was taken.
The affidavits show that the defendants drilled their well in 1890 at the suggestion and request of the gas company, and that negotiations for its purchase by the gas company have been conducted at some length but without resulting in a bargain. This fact, that the well in controversy had been drilled at considerable cost by the defendants at the request of the gas eompanjq the learned judge rightly regarded as a significant one. ’ In the opinion filed by him, which is an able one, he says that this fact “ might defeat this application so far as the gas company is concerned;” hut he regarded it as of no conse[338]*338quence so far as the other plaintiff was concerned, for he immediately added “ but as it cannot affect the plaintiff Hague it is not necessary to consider' it at this time.” He then proceeds to state and consider the question on which his decree was based, upon a state of facts such as might arise where an adjoining owner was guilty of malice or negligence in the conduct of operations on his land resulting naturally in injury to his neighbor. Hut is this conclusion of the learned judge that Hague stood on higher ground than the gas company a correct one ? The acts complained of were the drilling of the well in 1890 when the wells of both the plaintiffs were in full operation, and the subsequent failure to utilize or shut in the gas. The drilling of the well was accounted for, and the suggestion of malice or negligence therein negatived by proof that it was done at the instance of the gas company.
This company had a considerable gas plant, and was engaged in the supply of gas to its customers for fuel. It was interested in the development of the region, and evidenly expected to buy the defendants’ well if it was of sufficient size to be capable of utilization. The defendants and the gas company could not agree upon the price of the well after it was drilled; but the fact that it was drilled at the request of the company and not of the mere motion of the defendants was an answer to any allegation of malice or negligence on the part of Hague as well as on the part of the company, since it accounted for the act of drilling by assigning a motive therefor both lawful and neighborly. It will not do to say that an act, thus accounted for as to one plaintiff, may be assumed to be the result of malice or negligence as to the other, in the absence of proof to sustain the assertion. These plaintiffs stand on common ground. Neither of them can complain of the defendants for the act of drilling the well on their land on any other ground than the existence of malice or negligence, and when the act is accounted for in such a manner as to show that it was not done with malice, or in negligence, but in good faith, as an act of ownership and at the solicitation of the gas company, the character of the act is established, and as a basis of relief it falls out of the case. What have we then ? Three landowners owning considerable holdings in the same basin or overlying the same gas-bearing sand-rock, each having an open gas well or wells on his land, [339]*339drilled without malice or negligence, in a lawful manner and for a lawful purpose. Two of these owners have been able to utilize the gas from their respective lands and find a market for it. One of them has not been so fortunate. He has gas from his well, but, up to the time of the filing of this bill, he has not been able to utilize or dispose of it, and his gas has gone to waste for that reason. His more fortunate neighbors come into a court of equity and ask that he shall not be permitted to let his gas run, because, while this gas is his own, underlying his tract, and finding its way to the surface through his well, it has a tendency to drain the sand-rock and so to reduce ultimately the flow of gas from their wells. This would be equally true if the defendants were able to utilize their gas; yet it is conceded that in that case their right to the gas from their well would be as incontestable as the right of the plaintiffs to use the gas from theirs. How is that right lost? By their inability to find a purchaser ? If they can find a purchaser, or turn the gas to any useful purpose, their right to the gas that flows from their well is conceded. If they cannot, their right is denied. Their well must be shut in, while their . successful neighbors drain the entire basin, through their open wells, and receive pay for the gas. This is a proposition to limit the power of the owner over his own by the use he is able to make of it. If he can sell his gas or his oil, or turn it to some practical purpose, his power over it as owner is unabridged. If he cannot find a purchaser, or a practical purpose to which to apply his yield of gas or oil, then his power as owner is gone. This would be an adaptation to actual business of the spiritual truth that “ to him that hath shall be given, but from him that hath not shall be taken away even that which he seemeth to have.”
Does the. maxim, sic utere tuo ut alienum non laedas, require us to grant the relief sought in this case ? If in burning the gas from their well the defendants should direct the jet towards the plaintiff’s buildings or timber, or should leave it uncontrolled so that the wind might drive it against or towards the plaintiff’s property so as to injure or endanger it, a case would be presented in which the maxim would be applicable and we should take pleasure in enforcing it. If the defendant’s well produced nothing and they were leaving it without plug[340]*340ging so that the water might find its way into the sand-rock to the injury of others, we could punish them under the statute which prescribes the manner of plugging an unproductive well, and makes it obligatory on the owner to adopt it. But we have a well drilled for a lawful purpose, in a lawful manner, and actualty producing gas which is not directed towards the property of another, or so consumed as to affect the buildings, timber, or crops of any adjoining owner. It is therefore not the use of the gas of which the plaintiffs complain. It is the production of it, when the owner cannot sell it or turn it to any practical purpose.
Now it is doubtless true that the public has a sufficient interest in the preservation of oil and gas from waste to justify legislation upon this subject. Something has been done in this direction already by the acts regulating the plugging of abandoned wells; but it is not the public interest that is involved in this litigation. It is the interest of an adjoining owner who seeks to appropriate to himself so much of his neighbor’s gas as he cannot turn into money, or use for some practical business purpose, and he asks a court of equity to hold his neighbor’s hands by an injunction until this appropriation is accomplished. We cannot find any rule of law, or any principle of equity, on which such an injunction can rest. The scope of the golden rule may be sufficiently ample to cover this case; and it may be that it would require an owner to surrender to his neighbor so much of his own property as he could not turn to his own advantage, if his neighbor was so situated that he could profit by it. Assuming this to be so, the moral obligation so arising is not enforceable by civil process. The owner of timber may pile it in heaps and burn it, as was done in the early settlement of the country, notwithstanding the fact that his neighbor has a sawmill and all the facilities for preparing the sawed lumber for market and converting it into money. The power of the owner of the timber over it is neither greater nor less because of his neighbor’s readiness and ability to market it. An owner of land may have a deposit of coal under some portion of it so small in extent, or with such an inclination, as to make it impossible for him to mine through his own tract without a greater cost to him than the value of the mined coal when brought to the surface. His neighbor may have an open mine that reaches [341]*341it, and through which it could be brought at a fair profit. These circumstances do not affect the title of the owner of the coal, or confer any right on the adjoining mine owner. But it is said that the oil and gas are unlike the solid minerals, since they may move through the interstitial spaces or crevices, in the sand-rocks in search of an opening through which they may escape from the pressure to which they are subject. This is probably true. It is one of the contingencies to which this species of property is subject. But the owner of the surface is an owner downward to the centre, until the underlying strata have been severed from the surface by sale. What is found within the boundaries of his tract belongs to him according to its nature. The air and the water he may use. The coal and iron or other solid mineral he may mine and carry away. The oil and gas he may bring to the surface and sell in like manner to be carried away and consumed. His dominion is, upon general principles, as absolute over the fluid, as the solid minerals. It is exercised in the same manner, and with the same results. He cannot estimate the quantity in place of gas or oil as he might of the solid minerals. He cannot prevent its movement away from him, towards an outlet on some other person’s land, which may be more or less rapid, depending on the dip of the rock, or the coarseness of the sand composing it; but so long as he can reach it and bring it to the surface, it is his absolutely, to sell, to use, to give away, or to squander, as in the case of his other property. In the disposition he may make of it he is subject to two limitations. He must not disregard his obligations to the public. He must not disregard his neighbor’s rights. If he uses his product in such a manner as to violate any rule of public policy or any positive provision of the written law, he brings himself within the reach of the courts. If the use he makes of his own, or its waste, is injurious to the property or the health of others, such use or waste may be restrained, or damages recovered therefor; but, subject to these limitations, his power as an owner is absolute until the legislature shall, in the interest of the public as consumers, restrict and regulate it by statute.
The decree of the court below is reversed and the injunction is dissolved.