*

wrong which in its own essence is lawful. As long as a man keeps himself within the law by doing no act which violates it, we must lease his motives to Him who searches the heart.' To the same effect are Mahan v. Brown, 13 Wend. 261; Clinton v. Myers, 46 N. Y. 511; Phelps v. Nowlen, 72 N. Y. 39; South Royalton Bank v. Suffolk Bank, 27 Vt. 505; Chatfield v. Wilson, 28 Vt. 49.

"Without lengthening out this opinion by pointing out the distinctions between these cases, it is enough to say that my mind inclines strongly to the conclusion that the presence or absence of malice cannot of itself determine the liability of an owner of land for an act done upon it. If the act 's lawful when done with innocent intentions, it is no less so because the motives were bad. If these defendants might lawfully drill a hole into the gas-bearing rock, and suffer the valuable gas to escape, because they foolishly but honestly believed that the use of natural gas is an injury to mankind, they may do so for the purpose of keeping their neighbor from getting it, even if the motive is purely malevolent. Such, in my opinion, is the weight of the authorities, as well as the reason of the case. But this assumes that the act done with malicious intent invades no legal right of another. The cases are all of this character, or were so regarded by the courts deciding them. On the other hand, the cases which seem to announce a different doctrine deal with rights which are not absolute and exclusive, but qualified and correlative. An example of the former is Fowler v. Jenkins, supra, in which the action was brought for maliciously tearing down a fence which neither the plaintiff nor the defendant had a right to maintain. Of the latter is Greenleaf v. Francis, in which the action was brought for digging a well so near the plaintiff's well as to divert the water. The Instructions of the trial court to the jury, which were indorsed by the appellate court, were: "That if the defendant had a legal right to dig a well upon any part of his own land for the purpose of obtaining water for his own use; that if he dug his own well where he did for that purpose, he was justified in so doing, although the effect might be to diminish the water in the plaintiff's well; that if he dug where he did for the purpose of injuring the plaintiff, and not for the purpose of obtaining water for his own use, he was liable in this action; but if he thus dug his well for the purpose of accommodating himself with water he was not liable for so doing, even if he at the same time entertained feelings of hostility towards the plaintiff, and a desire to injure her, and these feelings were thereby gratified.' Malice implies knowledge. If the defendant in the case above cited dug his well maliciously, he knew beforehand where to dig to tap the same subterranean stream from which the plaintiff's well was supplied. His right in

such waters was qualified by the right of the plaintiff in the same flow of water. He could use it without stint, even if it exhausted the plaintiff's well, but he could not wantonly destroy it, nor take it not for use, but merely to injure his neighbor. Malice in such a case is not the criterion of liability, but it is an index which clearly shows an overstepping of the line, otherwise difficult to trace, between the respective rights of the parties. The true place of malice in such inquiries is clearly defined by the court in Chatfield v. Wilson, above cited, in the following paragraph from the opinion of the court: "There are many cases in the books relating to the relative use of surface streams, where the case has turned upon the question whether the use was reasonable, and for the party's own convenience or benefit, or wanton and malicious, and done to prejudice the rights of another. In such cases there are correlative rights to the use of the water, and the boundary of the right is a reasonable use of it.' Respecting rights in water I find the following from the pen of Judge Cooley in the Southern Law Re view, (reprinted 14 Alb. Law J., 63,) which, though not delivered ex cathedra, is none the less dispassionate and sensible: "There seems to be some difficulty in laying down a rule for these cases that will be quite satisfactory in principle and in its workings. That a man may lawfully make an excavation on his premises for the sole purpose of drawing away the water from his neighbor's well and rendering it useless, seems to be, and is in fact, a monstrous doctrine. On the other hand, it cannot be said, consistent with the authorities, or perhaps with reason, that adjoining proprietors have rights in the water percolating the soil corresponding to those they may have in a running stream which crosses their several estates. Such a rule would raise questions of reasonable use, and create difficulties both of evidence and of application that would make the right to such waters more troublesome than valuable. The courts have doubtless been right in declaring that one proprietor cannot insist on another keeping his estate as a filter for the use of the former, nor be heard to complain if the use by his neighbor of his own estate draws off the secret particles of water which otherwise he might have gathered. These waters belong to no one until they are collected, and they may be appropriated by the one who collects and puts them to use. But though neither proprietor has such a right in or control over the water as will enable him to complain of his neighbor's appropriation, does not each owe to the other certain duties of good neighborhood, among which is the duty to abstain from purposely withdrawing the water that may be useful to both, when a use of it is not intended? Conceding that he may collect it for use, does this entitle him to do so not for use, but of malice? If he sinks a well to

supply his house, or water his stock, it must be admitted that no question can be raised whether this is or is not a reasonable appropriation of the water; but if he digs a hole to injure his neighbor, it is not perceived that the two cases are necessarily to be governed by the same rule. What is a man's right to water percolating through the soil? The just answer seems to be this: It is a right to gather and appropriate it to his lawful uses. When he does this he is exercising his right, and his motive is not open to inquiry. But when he collects it, not for use, but to injure his neighbor, he exceeds his right, and there is that conjunction of wrong and injury which constitutes a tort and will support an action.' In most of the cases malice and negligence are coupled together, and in respect to the rights of the party injured it would seem that liability would result from one in any case where it would from the other. No matter how negligently an act may be done, it creates no liability unless some legal right of another is injuriously affected. The same is true of an act done maliciously, ard the converse holds in both cases. And where the right of one to do an act is limited by any qualification, it must be held to stop short of a right to do it from pure malice.

"What, then, are the rights of adjoining owners of oil and gas? Are they absolute and independent, or qualified and correlative? These valuable products are obtainable only in connection with the ownership of land, and for many purposes are to be regarded as minerals, and as constituting an integral portion of the land itself. Funk v. Haldeman, 53 Pa. St. 229; Stoughton's Appeal, 88 Pa. St. 198. But they are not, like coal and iron ore, fixed in their place in the rocks, so that the owner may know his own, protract his lines downwards to mark his boundaries, and take them when he pleases. As water percolates by untraceable rills through the gravel, so these 'minerals ferae naturae,' as they have been aptly called in a recent case, permeate the porous rocks deep in the bowels of the earth, and rush to the surface through any opening made through the impervious cap by which the basin which contains them is sealed. No landowner gets through his wells oil or gas exclusively from his own land. That which saturates his rocks may be lawfully taken by his neighbor through wells on his land, tapping the common reservoir. From the very nature of the case, the right of each owner is qualified. It is common to all whose land overlies the basin, and each must of necessity exercise his right with some regard to the rights of the others. Notwithstanding the fugitive nature of oil and gas, I think it will not be doubted that if a party by negligent operations upon adjacent land injures the flow of oil wells. as, for example, by neglecting to case off the fresh water, he would be liable in damages to the well owners so injured. Such a liability as to wells of wa

ter was established in Collins v. Gas Co., 131 Pa. St. 143, 18 Atl. Rep. 1012, and the right to gas or oil would seem to be of as high a character as the right to water. If the owner of gas wells or land has such an interest in the gas that he can recover for an injury done by negligence, he surely may when it is done of deliberate purpose. The same considerations of natural justice which limit the ownership of running water to the usufruct, and of percolating waters to their use in a broader sense, must of necessity impose qualifications upon the enjoyment of all rights of property which, from the nature of the things possessed, many must enjoy together. The owners cannot be permitted to carry on their operations in lawless irresponsibility, but must submit to such limitations as are inevitable to enable each to get his own. The fact that these limitations are not found clearly defined in the books is no proof that they do not exist. The common law is a growing tree; its principles must be continually adapted to new facts, and the changing conditions of modern life. Only the legislature can grub it up, but the courts are charged with the duty of pruning its branches, and sometimes grafting a new scion on the old stock. I concede that the defendants may lawfully take us much gas as they can get by wells drilled upon their land, and apply it to any useful purpose, though with an avowed intention of destroying the plaintiffs' wells by so doing, and a malicious pleasure in the act. But their well in its present condition is not a means of obtaining gas for any purpose. It is a mere conduit, by which the gas imprisoned in the rocks is enabled to escape into the atmosphere. All who have proved their ability to obtain gas from that reservoir are interested in common in its preservation, and the reckless waste of it is an injury to all. Whatever other qualifications may attach to the landowner's right, it seems to me clear that it must of necessity be limited to legitimate operations for profit, -not malice,-and by the requirement of ordinary care for the protection of others interested in common with himself. I am aware that the conditions attending the production and sale of natural gas are peculiar. There may be cases where the wasting of gas seems to be the only alternative to permitting another to take it without compensation. How far a court of equity would be influenced by such considerations it is not necessary now to decide, for no such facts appear in this case at present. Upon the whole case I am of the opinion that the injunction should be continued."

Lindsey & Parmlee and Ball & Thompson, for appellants. Roger Sherman and Samuel Grumbine, for appellees.

WILLIAMS, J. 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 Foster counties, Nos. 5,202, 5,203, 5,207, and 5,209, aggregating about 2,200 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. 5,207, 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 gasbearing 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 any 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 $200 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 casing 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

The

company-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;" but he regarded it as of no consequence so far as the other plaintiff was concerned, for he immediately added: "But, as it cannot af fect 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. But 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 evidently expected to buy the defendants' well if it was of sufficient size to be capable of utilization. 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. 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, drilled 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 seemcth to have."

Does the maxim, "sic utere tuo non alienium 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 plaintiffs' buildings or timber, or should leave it uncontrolled, so that the wind might drive it against or towards the plaintiffs' 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 defendants' well produced nothing, and they were leaving it without plugging, 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 actually 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 pres

ervation of oil and gas from waste to jus tify 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 it, 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 center, 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 cannot

ne might of the solid minerals. 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.

LEBBERING v. STRUTHERS et al. (Supreme Court of Pennsylvania. Oct. 2,

1893.)

INJURY TO SERVANT NEGLIGENCE OF MASTEREMPLOYMENT OF INCOMPETENT WORKMEN,

In an action by an employe for personal injuries there was evidence that the injury resulted from the incapacity and inexperience of a man employed to operate a powerful machine recently introduced into the workshop. This man had no previous instruction as to operating the machine, though, as several witnesses testified, it was dangerous for one without instruction or experience to attempt to do so. Defendant's engineer testified that he spoke of the man's incompetency to the superintendent, but that the latter took no action in the matter. Held, that there was evidence to support a verdict for plaintiff.

Appeal from court of common pleas, Warren county; Charles H. Noyes, Judge.

Action by August Lebbering against Struthers, Wells & Co. for personal injuries alleged to have resulted from defendants' employment of an incompetent man to operate a certain machine. From a judgment for plaintiff, defendants appeal. Affirmed.

J. H. Donly and W. D. Brown, for appellants. J. Ross Thompson and Samuel T. Neill, for appellee.

STERRET, C. J. Plaintiff's right to recover in this case depended entirely upon the facts as they were found by the jury from the testimony introduced by the parties and submitted by the court. There undoubtedly was evidence, proper for their consideration, tending to prove that the defendants employed Pedlow, a young and inexperienced man, about 20 years of age, to operate the

new and powerful machine, which had re cently been introduced into their establishment, and that the injury sustained by plaintiff resulted from Pedlow's incompetency and lack of experience in the use of said machine. There was also evidence tending to show that it was dangerous to intrust the operation of such a machine to any one not sufficiently instructed in its proper use, and that neither Pedlow nor the plaintiff had been so instructed. The necessity for previous instruction in the use of hydraulic machines, such as defendants', was testified by two witnesses of large practical experience in operating them. Mr. Norton, one of these witnesses, said that, in his opinion as an expert, it would not "be safe to put in a young man to run a machine who had no experience in this kind of work;" and, in answer to the question, "How long would it take a man accustomed to machinery, as you are, to learn?" his reply was, "It would take a green hand all of a couple of weeks to learn how to run it," etc. The testimony of Mr. Robinson, the other expert, was to the same effect. Both of these witnesses also gave it as their opinion that it would be dangerous to run a hydraulic machine fast. Mr. Hammond, defendants' superintendent, being called and examined on their behalf, was asked to state "what instruction or advice, if any," he gave to Pedlow and the plaintiff before putting them at work. His reply was: "I called them together. I asked them if they would take the machine. I wanted them to take the machine by the piece-that is, by piecework-after they had got used to it. I says, "Take it for a week, two weeks, three weeks, or four weeks.' I says, "Take it quietly, until you get accustomed to the machine.' Then I said, 'If you find you can make more money by working by the hundred than by the day, you can have it in that way.'" It was also testified by Mr. Dyson, defendants' engineer, that, having observed Pedlow's unskillfulness and incompetency, he called the attention of Mr. Hammond, the superintendent, to the fact on the day before plaintiff was injured, and he dismissed the matter by saying, “That would be all right after they [Pedlow and plaintiff] got used to it; something of that kind." The testimony is voluminous, and of course it is unnecessary to consider it in detail. We have referred to a few of the more salient points therein for the purpose of showing that the evidence was quite suffi cient to require submission of the case to the jury. That was fairly done in a clear and comprehensive charge embodying full and adequate instructions in the law applicable to every phase of the testimony. It is not even alleged that there was any error in the admission or rejection of testimony. The several specifications of error are all directed either to excerpts from the learned judge's charge, or to his answers to points submitted by counsel. We have examined