cultivating it, but for the express purpose of extracting something of value supposed to be far beneath the surface. In case these commodities sought for are found, they are brought to the surface and severed from the realty, and become personal property, in which generally both the lessor and lessee have a separate interest or right of ownership.

The vast amount of Gas and Oil production in our State, has made it necessary to blaze new pathways in our jurisprudence. In several counties located in what is called the "Gas and Oil Belt," more than one-half the litigation for the past few years has grown out of contentions of lessor and lessee over these special mineral rights.

OIL AND GAS PIPE LINES AS COMMON CARRIERS.

The last Legislature of our State enacted several laws relating to the control of pipe lines, and one law in particular was enacted for the purpose of making oil pipe lines, within the State, assume the duties and responsibilities of common carriers.

See Session Laws 1905, p. 526.

It is believed that oil pipe lines can be lawfully burdened with the liabilities of common carriers, providing they assume and exercise the rights of eminent domain in obtaining rights of way, lands for storage, etc., but not otherwise.

Aside from legal doubts that may surround this subject, the practical results or working of such a law are of more serious concern. Oil is graded as to specific gravity and value, and in case one owner has oil of a certain grade and value, and another owner has oil differing in both respects, can the carrier be required to take both grades and conditions mix them together, and deliver at destination, what it received for transportation at the initial point? Again, can different grades of the same commodity, owned by several different persons, be delivered into one receptacle when it is not all of a given grade or value, and the carrier be

required to mingle the separate property of several different owners all together, and then deliver to each at any given point that which is actually his own? The answer to this inquiry suggests itself. It would be a physical impossibility in the operation of an oil pipe line as a common carrier, to deliver to respective owners at any given point their own property in kind. This condition has been somewhat obviated in Indiana where a law has been in force for several years making an oil pipe line a common carrier by taking a given amount of oil at the point of reception, grading it and fixing a money value for the oil received, and then at the point of delivery giving the consignee an amount of oil equal in value to that which was received for transportation.

The workings of this law have been attended with many disappointments, and in general, it may be said to be unsatisfactory and impractical.

More difficulties and obstacles would attend the enactment of law which would impose the liabilities of common carriers upon Natural Gas Companies. Many measures for this purpose have been proposed, but it is very doubtful if they can be made practical or satisfactory.

OF GAS AND OIL OPERATIONS ON RAILWAY RIGHTS OF WAY.

The last Legislature of our State enacted a law prohibiting the drilling or operating of gas or oil wells within certain limits adjacent to steam and electric railway tracks.

See Session Laws 1905, p. 302.

The purpose of this legislation is to prevent unnecessary danger from the operation of railway trains conveying passengers, etc. Gas being an inflammable and dangerous substance when not properly confined, and oil also being of a somewhat less dangerous nature, although easily ignited, it is believed to be within the legitimate exercise of the police power of the State to

prohibit railway companies from exposing their passengers, servants and employes to unnecessary hazard.

This legislation, however, raises the question of the right of railway companies which may own their own rights of way in fee, to lease them for oil and gas development. The Act in question has been assailed in the District Court of Chautauqua County, but upon hearing the judgment of the court was to the effect that the Act was valid. From this judgment the defendant railway company has appealed, and which appeal is now pending in our Supreme Court, where the final judgment on this question will be awaited with much interest.

OF PUBLIC GAS INSPECTION.

In law, gas is recognized as a dangerous and inflammable commodity, and in all States where the use of Natural Gas has been considerable, various laws have been passed which have for their purpose a reasonable regulation of its various uses. Our State now has a law providing for the appointment of a public Gas Inspector by Boards of County Commissioners in counties where gas is produced.

Session Laws 1905, p. 521.

By this Act the public inspector is authorized to gauge and measure the flow and volume of all gas wells, and the owners of such wells are required to report to such Inspector whenever new wells are completed. All unnecessary waste of gas is prohibited, and such last mentioned purpose, to prevent waste, was undoubtedly the principal object in view when this law was enacted. Whether the owners of gas wells can be compelled to have them opened and measured by a public official is doubted by many eminent attorneys, and the Act authorizing such inspection is now being resisted as being unconstitutional in that respect, and as giving the exercise of unwarranted authority to a public official over private property. It is, however, believed by the writer, that such authority

when reasonably exercised, is within the plain and ordinary police powers of the State. Beyond question it is within the right of the State to prohibit and prevent waste of any useful article like Natural Gas. The general results of this law have been very satisfactory in the localities affected, on account of preventing an enormous and unnecessary waste of Natural Gas, which for years has been permitted, very largely for want of adequate legislation to prevent it. It may be observed in passing, that in some counties of our State several thousands of miles of gas pipe lines, of various sizes and dimensions are now laid, and in use, through the municipalities and rural districts, and it was a matter of common knowledge that in many localities more gas was being wasted than was being usefully consumed. The public gas inspector for supervisory purposes, is certainly a public benefactor.

THE RIGHT TO TRANSPORT GAS FROM ONE STATE TO ANOTHER.

This subject has given rise to much contention. As gas and oil are commodities of commerce, when separated from the soil and confined in ordinary receptacles for use and distribution, it seems to be now settled law that the State cannot prevent their transportation into another State or country. Legislation for such purposes has been enacted in other States without the sanction of the courts. The decisions proceed on the theory that to prohibit either oil or gas from being generally distributed wherever a market may be found, is in direct violation of the Inter-State Commerce Laws. Gas and Oil being both commodities susceptible of transportation, by means of proper conveyance, are no less the subjects of Inter-State Commerce than are grain, fruit or merchandise. This whole subject has been determined in several well adjudicated cases.

State ex rel. Corwin vs. Indiana and Ohio Oil and
Gas Company, 120 Ind. 575.

Jamieson vs. Indiana Company, 128 Ind. 555.

Carothers vs. Philadelphia Co., 118 Pa. 488.
W. Va. Transportation Company vs. Volcanic Oil
& Coal Co., 5 W. Va. 382.

Coe vs. Errol, 116 U. S. 517.

It is therefore not a valid exercise of the police power of the State to undertake to prevent a general distribution of this commodity.

OF ARTIFICIAL DEVICES TO INCREASE NATURAL FLOW.

In several States, laws have been enacted to prohibit the use of artificial devices for the purpose of increasing the natural flow of gas from wells. These devices usually consist of immense pumps, which in their operation create a vacuum into which gas is forced with greater velocity and volume than it would otherwise flow in its natural course. The power of the State to regulate this condition is now generally recognized. Our legislature has already anticipated such possibilities and has enacted a law covering this subject.

See Session Laws 1905, p. 520.

This, like several other subjects discussed in this article, come within the lawful police domain of the State. The doctrine is necessarily founded on the same principle as that of diverting the natural flow of water on the surface. Therefore it is held that any unnatural flow of gas may be prohibited, whenever such unnatural flow may be reasonably regarded as unnecessary or wasteful.

It has also been held lawful for the State to prohibit the use of Natural Gas for flambeau lights. This settles the proposition that the State may regulate the use to be made of Natural Gas, as well as prohibit the waste of it. The burning of flambeau lights therefore may be considered as an extravagant use of Natural Gas and somewhat dangerous to the public safety, and the right to provide penalties for the violation of such provisions has been upheld by the courts.

Townsend vs. State, 147 Ind. p. 624.