mated, that within three years all of the rights of property; [314] whether wells will have been utterly and complete- it, the legislation, is a legal conserly depleted, and the depletion will re- vation of the natural resources of late not only to the wells furnishing gas the state, or an arbitrary interferfor the manufacture of carbon black, but ence with private rights. Contentions will likewise relate to the entire region of this kind have been before this and vicinity. court in other cases, and their discussions and decisions have materiality here. We mean, not discussions or decisions on the police power in the abstract or generality, but discussions and decisions involving conditions and principles pertinent to the present case.

And it is alleged that, by preventing the use of the gas for the manufacture of carbon black, the towns of Lovell and Cowley, and all industrial plants therein, will be afforded a supply of gas for all domestic and industrial purposes for a period of thirty years.

[313] The vice attributed to the act by complainants is denied, and a benefit and virtue asserted for it.

It is prayed that the bill be dismissed, and the restraining order be dissolved. The answer is verified.

A motion to dissolve the temporary restraining order was made, which was supported by affidavits and opposed by others.

It will be observed that the act under review does not prohibit the use of natural gas absolutely. It prohibits, or, to use its words, declares it to be a "wasteful and extravagant use of the gas when it is burned or consumed without the heat therein contained being fully and actually applied and utilized for either manufacturing or domestic purposes.' But not even that unlimitedly, but only when the "gas well or source of supply is located within 10 miles of any incorporated town or industrial plant." Such is the prohibition upon the user or consumer. There is a prohibition upon the owner or lessee of wells within the desigmated distance from a town or industrial plant to sell or dispose of the gas except under the specified conditions "for the purpose of manufacturing carbon or other resultant products."

The affidavits are too long to quote. Those on the part of defendants represent the interest of the city of Lovell and other towns, and the necessity to their industries, if there are to be any, of the natural gas from the wells with which this case is concerned, and represent a depletion of the gas supply by the use made of the gas by complainants. Figures are given. Particulars are stated in one affidavit, and for a review of what are deemed the important tests and elements of judgment of the conditions which existed and would succeed the present practice, it is said: "In conclusion, assuming that the present consumption of gas from this sand is 15,000,000 cubic feet per day (as I have been reliably informed) and that the decrease in pressure for the last year has been 150 pounds, and knowing that the present pressure is approximately 200 pounds, it is a simple problem in mathematics to ascertain the future life of the field. In other words, at the present rate In Bacon v. Walker, 204 U. S. 312, of decrease in pressure, the field will be 51 L. ed. 499, 27 Sup. Ct. Rep. 289, a exhausted in sixteen months, and there statute of Idaho was considered which will be no pressure to force the gas out made it unlawful, with consequent liabilof the sand. On the same basis of rea-ity to damages, "for any person owning soning there are approximately 7,200,- or having [315] charge of the sheep 000,000 cubic feet left in the sand, and to herd the same, or permit them to the present consumption is 5,500,000,000 cubic feet per year."

The court sustained the application for temporary injunction.

There are two elements, therefore, to be considered: (1) The distance of the wells from an incorporated town or industrial plant; (2) the element of heat utilization for manufacturing or domestic purposes. These elements are the determining ones in the accusations against the law. The first is the basis of the discrimination charged against it; the second is the basis of the charge that the law deprives the companies of their property by the ruin of their business and capital investments, and impairs the obligations of pre-existing contracts.

to

be herded, on the land or possessory claims of other persons, or to herd the same or permit them graze within 2 miles of the dwelling The question in the case is, as we have house of the owner or owners of said possaid, whether the legislation of Wyoming sessory claim." The statute was sustained is a valid exercise of the police power of as a lawful exercise of the police power the state, and brings into comparison the of the state, against the assertion of the limits of the power as against the asserted i right of one citizen to use the public

and equipping machinery for the sole purpose of raising and producing oil, it not being engaged in producing or transporting natural gas, and that it used the gas as "power, force, and agency" to raise the oil to the surface of the ground, and that such was "the usual, natural, and ordinary method of saving oil in such cases." And further, that no machinery or process of any kind had been devised by which the oil could be produced and saved otherwise, and by forbidding it, the company's business would be destroyed and the state deprived of the use and profits of the oil, which was of vast

domain as much as another citizen; and that to impose damages upon him for the exercise of the right deprived him of his property without due process of law, and, besides, arbitrarily discriminated between sheep grazing and the grazing of other kinds of stock. We there said in substance that the power of regulation existing, the imposition of some limit to a right when its exercise would impinge upon the equal right of another was the exercise of legislative power, and that the circumstances which induced it could not be pronounced illegal "on surmise, or on the barren letter of the statute." And we said further, that where equal rights ex-ly more value than the gas. And it was isted, the state has an interest in their accommodation. Pertinent cases were cited, and the exclusion from grazing within 2 miles of the possessory claim of another was decided to be legal, that "the selection of some limit is a legislative power," and that it was "only against the abuse of the power, if at all, that the courts could interpose." The mere distance expressed nothing.

The case, and those it cites, are authority for the position that a state may consider the relation of rights, and accommodate their coexistence, and, in the interest of the community, limit one that others may be enjoyed. Of this Ohio Oil Co. v. Indiana, 177 U. S. 190, 44 L. ed. 729, 20 Sup. Ct. Rep. 576, 20 Mor. Min. Rep. 466, is especially illustrative and pertinent, and conducts naturally to the consideration of the second proposition; that is, to the element of heat utilization.

asserted that no more gas was permitted to escape than was consistent with the due operation of the well with the highest skill. It was hence urged against the act that it deprived of property without due process of law, and denied to the Oil Company the equal protection of the laws. The answer was adjudged by the supreme court of the state not to constitute a defense. The adjudication was sustained by this court. We said, citing a case, "possession of the land is not necessarily possession [317] of the gas," and again, on the authority of cases, "that the property of the owner of lands in oil and gas is not absolute until it is actually in his grasp, and brought to the surface." It was decided, however, that before that event occurs, indeed, in prevention of it, the state may interpose its power to prevent a waste or disproportionate use of either oil or gas The suit was by the state, and was based by a particular owner in order to conserve upon a statute which was directed against the equal right of other owners and adand prohibited one having [316] pos- vance the public interest. And in support session or control of any natural gas of this power of regulation a similarity or oil well to permit the flow of gas between natural gas and other subsurface or oil from any such well to escape minerals was rejected. "True it is," it into the open air for a longer pe- was said, "oil and gas, like other minerals, riod than two days after the gas or are situated beneath the surface of the oil had been struck. From the stand-earth; but, except for this point of simipoint of the law, to do so was a larity, in many other respects they greatwaste of gas. A right against the statutely differ. They have no fixed situs under was set up, based upon the asserted or implied postulate that the owner of the land owned all beneath the surface and all that could be brought to the surface within the lines of the land. The postulate was rejected upon the ground of the nature of the gas, the capability of its flow from place to place, the common right to domestic and industrial use of it, and the power of the state to regulate and conserve such right.

a particular portion of the earth's surface within the area where they obtain. They have the power, as it were, of self-transmission." Necessarily, therefore, it was adjudged that their use by one owner of the surface affected the use of other owners, and an excessive use by one diminished the use by others, and a similarity of other minerals, as we have seen, was rejected, and the analogy between oil and gas and animals feræ The Oil Company contended, as owner naturæ was declared. It was hence of the land (it was the lessee) and pro- decided that the power of the state ducer of the oil, that it had expended "can be manifested for the purpose many thousands of dollars in purchasing of protecting all the collective owners, by

securing a just distribution, to arise from, an open one, we should still solve it in the the enjoyment by them of their privilege same way." to reduce to possession, and to reach the like end by preventing waste."

To the contention that oil could not be taken at a profit by one who made no use of the gas, it was replied that such fact "went not to the power to make regulations, but to their wisdom." And this can be said of the contention in the case at bar, that one element is more valuable than another, that carbon black is more valuable than the gas from which it is extracted.

May the principle and its justification be extended to the Wyoming statute? The statute of Wyoming (we [319] repeat it, to have it immediately before our eyes) declares it to be a "wasteful

or

and extravagant use of natural gas" to use, consume, or burn it when taken or drawn from any gas well or wells or borings "for the products where such natural gas is burned without the heat therein contained being fully and actually applied and utilized It will be observed that the basic princi- for other manufacturing purposes ple of the Indiana statute is the same as domestic purposes." The declaration of the basic principle of the [318] Wy illegality, however, only applies when the oming statute; that is, the power of "gas or source of supply is located within regulation dependent upon the natures 10 miles of any incorporated town or inof oil and gas and that the absolute dustrial plant." Section 2 explicitly mendominion of the surface of the land is tions carbon black as within the illegality not an unlimited dominion over them. of the law, and, as this case concerns its The case was cited in Lindsley v. Nat-production, we may accept its production ural Carbonic Gas Co. 220 U. S. 61, 55 L. as a test of the companies' case. ed. 369, 31 Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160, to defeat a suit brought to restrain the officers of the state of New York from enforcing against the gas company a statute which made it unlawful to pump from wells or otherwise draw by artificial appliances that class of mineral waters holding in solution carbonic acid gas, or producing an unnatural flow of such gas "for the purpose of extracting, collecting, compressing, liquifying or vending such gas as a commodity otherwise than in conjunction with the mineral water and the other mineral ingredients with which it was associated."

The company alleged that the gas could be lifted to the surface only by means of pumps or other artificial appliances, and that many other landowners in Saratoga Springs had like wells which were operated in a like way, with a like purpose. The utility of the gas was alleged and a property right asserted which the statute, it was further alleged, deprived of, in violation of the Constitution of the United

States.

A demurrer was sustained to the bill; therefore its averments were admitted. The basis of the contention of the offense of the statute against the Constitution of the United States explicitly was, that the company, being the owner of the land owned, had power and authority over all beneath the land's surface that it could reduce to possession. This was the same postulate, it will be observed, that was asserted in Ohio Oil Co. v. Indiana. It was rejected upon the authority of that case. We, however, said: "Were the question

Of the range of the utility of carbon black, there can be no controversy; and to this fact the companies give an especial emphasis in their averments, supplementary affidavits, and argument. The fact, however, is but of incidental importance. The determining consideration is the power of the state over, and its regulation of, a property in which others besides the companies may have rights, and in which the state has an interest to adjust and preserve, natural gas being one of the resources of the state. And in this consideration it is more important to consider not for what a particular owner uses the gas, but the proportion of his use to that of others; or, it may be, the prevention of use by others; and the striking fact is presented by the companies' averments that by the processes and devices employed by them there is only obtained

from each thousand cubic feet of natural gas consumed 1 pounds of carbon black and 10 of a gallon of high-gravity gaso

lene. To this averment the defendants

add that every thousand cubic feet of gas and therefore, "that the inefficiency of the contains from 33 to 40 pounds of carbon, process used by the complainants is very high, ranging only from 2.8 per cent to 4.6 per cent." It is the further assertion [320] of defendants that the companies are utilizing and withdrawing from the earth gas at the rate of approximately 10,000,000 cubic feet per day, and that the same can never be replaced or restored.

To these averments we may add the affidavits. There is something in them, but not enough to reduce the importance of

In the Lindsley Case the power of the state was exerted to prohibit the owner To the contention that the statute is of the surface from pumping on his own not one of conservation, because carbon land, water charged with gas. This black factories are permitted if 10 miles was but an exertion, it was said, to distant from a town or industrial plant, preserve from depletion the subter- the immediate answer is that it is for the ranean supply common to him and state to determine not only if any conserother owners, and that the statute, vation be necessary, but the degree of it; therefore, was not unconstitutional and certainly the companies cannot comas depriving owners of their prop- plain if the state has not exerted its full erty without due process of law. Oil Co. v. Indiana, as we have pointed out. As we have seen, many affidavits were was cited as a precedent and its principle addressed to the [325] impossibility applied. The case at bar is, we think. of complying with the statute; that within that principle; in other words, is, of utilizing the heat of natural the power is exerted to prohibit an ex- gas to the extent of the words of travagant or wasteful or disproportion- the statute. We say to the extent ate use of the natural gas of the state. of the words of the statute, because