The facts and history of this case are correctly stated in the opinion of HISCOCK, J. This action was brought to restrain the defendant from pumping water from the wells upon its premises and extracting therefrom the carbonic acid gas which is contained in such waters.
At common law the owner of land is entitled to all of the solids that lie beneath the surface and all of the liquids, other than surface streams, including gas, that percolate or flow through the soil or rocks that he is able to reduce to possession, and to use the same for his own purposes, at his free will and pleasure; and if, in boring a well thereon, he intercepts an underground spring that destroys his neighbor's well no cause of action arises on the part of his neighbor. (Acton v. Blundell, 12 M. W. 324, 351; Chasemore v.Richards, 7 H.L. Cas. 349; Ellis v. Duncan, 21 Barb. 230; *Page 352 affd., 26 How. Pr. 601; Pixley v. Clark, 35 N.Y. 520;Trustees of Village of Delhi v. Youmans, 45 N.Y. 362;Bloodgood v. Ayers, 108 N.Y. 400; Huber v. Merkel,117 Wis. 355; Roath v. Driscoll, 20 Conn. 533; Greenleaf v.Francis, 18 Pick. 117; Davis v. Spaulding, 157 Mass. 431;Frazier v. Brown, 12 Ohio St. 294; Haldeman v. Bruckhart, 45 Penn. St. 514; Coleman v. Chadwick, 80 Penn. St. 81;Westmoreland Natural Gas Co. v. Dewitt, 130 Penn. St. 235, 249; Hague v. Wheeler, 157 Penn. St. 324; People's Gas Co. v. Tyner, 131 Ind. 277, 280; Ocean Grove Assn. v. AsburyPark Comrs., 40 N.J. Eq. 447; So. Pac. R.R. Co v. Dufour,95 Cal. 615; Brown v. Spilman, 155 U.S. 665; Ohio Oil Co. v.Indiana, 177 U.S. 190, 208; Angell on Watercourses, §§ 109-114.)
It will be observed from the cases cited that the foregoing rule obtains not only with reference to water which is used for enriching the soil and for domestic purposes, but also to mineral waters, saline, alkaline and sulphuric, including petroleum oil and gas which percolates or flows through the earth beneath the surface, with but a single exception. In the case of Forbell v.City of New York (164 N.Y. 522) the city of Brooklyn, before it became consolidated with the greater city of New York, had acquired two acres of land in the county of Queens, upon which it had constructed a station, in which was sunk a number of wells through which, by means of powerful suction pumps, it had drawn the waters in the earth not only from its own land, but from a large territory surrounding it and by means of conduits conveyed the water to the city of Brooklyn where it was sold and distributed to the inhabitants thereof for domestic purposes. In that case it was found as a fact that the effect of the powerful suction pumps was to so lower the underground water-table in the lands surrounding that owned by the defendant as to render such lands unfit for cultivation and the growing of crops, thus resulting in great damage to the owners of such lands. This court held, and I think properly, that the facts of that case were so exceptional that they presented a situation not contemplated *Page 353 by the common law or the prior cases recognizing the rights of the landowner to make such use of the water under the soil of the land as he saw fit and that, consequently, the owner was entitled to damages; but in so holding the court was careful to limit the exception to the peculiar facts of that case and to re-affirm the common-law rule as to other cases, in order that the owner may have "the fullest enjoyment and usefulness of his land as land, either for purposes of pleasure, abode, productiveness of soil, trade, manufacture, or for whatever else the land as land may serve." (P. 526.)
Water, as it descends from the clouds, is nearly pure and consists of hydrogen and oxygen. It replenishes the earth, causes vegetation to grow and becomes an essential part of animal life. It is evaporated by heat or the rays of the sun, becomes a part of the air we breathe and when condensed it falls upon the earth enriching the soil and producing springs, brooks, creeks and rivers that flow upon the surface. Pure water is colorless, odorless, tasteless and a transparent liquid. These waters are distinguishable from those which are ordinarily known as mineral waters which are impregnated with foreign ingredients such as gas, sulphur, iron and salt which give them a peculiar flavor. The mineral waters that are produced by the springs of Saratoga are impregnated with carbonic acid gas and hold in solution salts which render them practically useless for domestic purposes, but which possess medical properties beneficial to health when taken in limited quantities. It, therefore, does not appear to me that the rule adopted in the Forbell case has any application to that presented by the complaint in this action. The fundamental difference is, that in the former case the land was dried up by reason of the suction of the water from it, and thus rendered incapable of producing vegetation, to the damage of the owner, while in this action the pumping of the water from the seams in the rock does not impair the usefulness of the soil for vegetation, but only tends to deprive the springs and wells upon the premises of the other owners of the gas necessary to make them flow. It is the gas, not the water, that *Page 354 is the bone of contention. It, like natural gas and petroleum oil, has become of great commercial value and its production a prominent industry. If the rule in the Forbell case does apply to the facts presented in this case, and a person can be restrained from abstracting the gas from the waters which he pumps from his own premises, it would seem to follow that an owner might be enjoined from pumping salt water from his premises for the purpose of extracting the salt, or the pumping of wells for the purpose of extracting petroleum or gas. None of these products are beneficial to the soil, for they are destructive of vegetation, and their only value consists in their being separated from the soil, conveyed away and marketed for other purposes. To hold that any citizen may so restrain the owner of lands may result in the destruction of many of our great manufacturing establishments and operate to paralyze some of the most important industries of the country. I think that the rule which prevails with reference to salt water, petroleum oil and gas cannot be distinguished in principle from that which should control with reference to the mineral waters of Saratoga Springs. To my mind, the rule which obtains with reference to those commodities is settled by the authorities.
In the case of Hague v. Wheeler (157 Penn. St. 324) the defendant had bored a well upon his premises for the purpose of obtaining gas, but had failed in obtaining it in sufficient quantities to obtain a purchaser thereof for commercial use. The plaintiffs, who were operating gas wells upon adjoining premises, entered upon the defendant's lands and shut in the gas by closing the well. The defendant threatened to remove the cap and permit the gas to escape, and thereupon the plaintiffs brought action to obtain an injunction to prevent him from so doing. At that time there was no statute in Pennsylvania regulating the use that should be made of gas. The court held that, in the absence of such a statute, an injunction would not issue; that the owner could make such use of the gas that flowed from his well as suited his pleasure, and if he permitted it to waste, the plaintiff had no *Page 355 cause for complaint. Mr. Justice WILLIAMS, in delivering the opinion of the court, further says: "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 and 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 of gas or oil as he might of the solid minerals. He cannot prevent its movement away from him, toward 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 asconsumers, restrict and regulate it by statute."
In the case of Ohio Oil Co. v. Indiana (177 U.S. 190) the state of Indiana, through its attorney-general, had filed a complaint against the Ohio Oil Company, charging it with the violation of a statute of the state which required the confining of natural gas within the pipes of the company and the prevention of its waste. The oil company claimed that the act was violative of the provisions of the Constitution of the *Page 356 United States. Mr. Justice WHITE, in delivering the opinion of the court, states the general rule quoted from the case ofBrown v. Spilman (155 U.S. 665, 669, 670) to the effect that "petroleum, gas and oil are substances of a peculiar character, and decisions in ordinary cases of mining, for coal and other minerals which have a fixed situs, cannot be applied to contracts concerning them without some qualifications. They belong to the owner of the land, and are a part of it, so long as they are on it or in it, or subject to his control, but when they escape and go into other land, or come under another's control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas, extending under his neighbor's field, so that it comes into his well, it becomes his property." He also quotes the rule from the case ofHague v. Wheeler, to which I have referred above, and numerous other cases, and reaches the conclusion that water, petroleum and gas flowing in subterranean currents are not the subject of property until they are reduced to possession, and then proceeds: "As to gas and oil, the surface proprietors within the gas field all have the right to reduce to possession the gas and oil beneath. They could not be absolutely deprived of thisright which belongs to them without a taking of privateproperty. But there is a co-equal right in them all to take from a common source of supply, the two substances which in the nature of things are united, though separate. It follows from the essence of their right and from the situation of the things, as to which it can be exerted, that the use by one of his power to seek to convert a part of the common fund to actual possession may result in an undue proportion being attributed to one of the possessors of the right, to the detriment of the others, or by waste by one or more, to the annihilation of the rights of the remainder. Hence it is that the legislative power, from thepeculiar nature of the right and the objects upon which it is tobe exerted, can be manifested for the purpose of protecting allthe collective owners, by securing a just distribution, to arisefrom the enjoyment by them, of their privilege *Page 357 to reduce to possession, and to reach the like end by preventingwaste." (177 U.S. 190, 209.) It is thus apparent that, while the legislature may regulate the use by statute, in the absence of such statute an injunction will not issue under the common law, even though there may be a waste of the product. If, therefore, the mineral waters of Saratoga Springs are subject to the rules which obtain with reference to the other mineral liquids to which I have referred, it would follow that, in the absence of a statute regulating the use of such waters, an injunction would not lie at common law to restrain a landowner from taking, through his own wells upon his own premises, carbonic acid gas for the purposes of sale.
While the mineral waters of Saratoga Springs are not used for domestic purposes nor to aid vegetation, they, however, possess medical properties which are valuable, and the state, for the benefit of the whole people, may by statute regulate the production of such waters, to the end that the natural springs may be preserved from contamination or destruction. Take, for instance, the springs of Carlsbad, Wiesbaden, the Hot Springs of Arkansas and of Virginia, the springs of Mt. Clements, as well as those of Saratoga, which are visited annually by thousands of people and some of whose waters are bottled and shipped broadcast over the land and are used by thousands upon thousands of our inhabitants for medicinal purposes. Surely, the state, under its police powers, may, in the interests of the people, protect such great gifts of nature to mankind. I am, therefore, fully in accord with the views expressed by Judge HISCOCK in that portion of his opinion in which he discusses the police powers and reaches the conclusion that the legislature may, by statute, regulate the use.
I am not, however, able to sustain the validity of chapter 429 of the Laws of 1908. It does not attempt to regulate and preserve the production of the mineral waters of Saratoga Springs in order that the public may enjoy the medicinal properties contained in such waters; but the act, in most specific terms, absolutely prohibits throughout the entire state the pumping of waters from wells drilled into the rock for the *Page 358 purpose of extracting the carbonic acid gas contained therein, excepting only the salt reservation at Syracuse and the counties adjoining thereto. The industry is not regulated, but is absolutely prohibited, except as to the reservation mentioned. The defendant, as we have seen, is engaged in that business. It has purchased lands and constructed a plant thereon, and has bored wells into the rock thereunder, from which it extracts the gas. Its wells do not flow, and, consequently, a pail of water cannot be taken therefrom unless by the use of a pump or other artificial means. The water, after the extraction of gas, has no commercial value, and is, consequently, returned to the earth from which it was taken. If the defendant is prohibited from pumping water, it follows that it is also prohibited from extracting any gas therefrom or of deriving any benefit from the use of its wells. The gas is of great commercial value, and the industry is an important one. Until the passage of this statute the business was lawful and legitimate. It was neither immoral, a nuisance, nor detrimental to public health, as was the case ofMugler v. Kansas (123 U.S. 623) and other kindred cases; but was an absolute right of property, which the defendant in good faith had developed by constructing an expensive plant for the extraction of gas, from which, after its establishment, the right of extraction has been prohibited by legislative act without any provision for compensation. This, I am of the opinion, should not be tolerated. As was said by Mr. Justice WHITE in the Ohio OilCompany case, above referred to (p. 209), "The surface proprietors within the gas field all have the right to reduce to possession the gas and oil beneath. They could not be absolutelydeprived of this right which belongs to them without a taking ofprivate property." (See, also, People ex rel. McPike v. VanDe Carr, 178 N.Y. 425.) Had the defendant's plant been located elsewhere than in the vicinity of Saratoga Springs no court would have entertained, for a moment, the suggestion that it could be restrained of its right to extract the gas, but being located in that vicinity and upon the basin from which the springs of *Page 359 that place draw their waters and gas, each of the surface proprietors being entitled to convert a part of the common product to actual possession, presents a case in which, to again use the language of Mr. Justice WHITE in the Ohio case, "thelegislative power, from the peculiar nature of the right and theobjects upon which it is to be exerted, can be manifested for thepurpose of protecting all the collective owners, by securing ajust distribution, to arise from the enjoyment by them, of theirprivilege to reduce to possession, and to reach the like end bypreventing waste." (P. 210.) I, therefore, conclude that, while the legislature may regulate the use by surface proprietors of lands in extracting gas therefrom so as to preserve the rights of each proprietor of the common field in which the gas may be found to exist, without rendering compensation therefor, yet where the legislature takes from the surface proprietor, absolutely, his right to so produce gas, it is a taking of private property for which compensation must be made, and, inasmuch as the act in question does prohibit the defendant from the exercise of this right, it is violative of both the State and Federal Constitutions. I favor a reversal of the order appealed from.
GRAY, EDWARD T. BARTLETT, WERNER and CHASE, JJ., concur with HISCOCK, J; CULLEN, Ch. J., concurs in result; HAIGHT, J., reads dissenting opinion.
Order affirmed.