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 for the manufacture of carbon black, but will likewise relate to the entire region and vicinity.

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.

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.



the state, or an arbitrary interference with private rights. Contentions of this kind have been before this 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.

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."

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.

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 be herded, on the land or possescubic feet per year."

The court sustained the application for temporary injunction.

sory claims of other persons, or to herd the same or permit them to 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

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 existed, 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.

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 vastly more value than the gas. And it was 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 by a particular owner in order to conserve the equal right of other owners and advance the public interest. And in support of this power of regulation a similarity between natural gas and other subsurface minerals was rejected. "True it is," it was said, "oil and gas, like other minerals, are situated beneath the surface of the

The suit was by the state, and was based upon a statute which was directed against and prohibited one having [316] possession or control of any natural gas or oil well to permit the flow of gas or oil from any such well to escape into the open air for a longer period than two days after the gas or oil had been struck. From the stand-earth; but, except for this point of simipoint of the law, to do so was a waste of gas. A right against the statute 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.

The Oil Company contended, as owner of the land (it was the lessee) and producer of the oil, that it had expended many thousands of dollars in purchasing

larity, in many other respects they greatly differ. They have no fixed situs under 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 naturæ was declared. It was hence decided that the power of the state "can be manifested for the purpose 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.

It will be observed that the basic principle of the Indiana statute is the same as the basic principle of the [318] Wy. oming statute; that is, the power of regulation dependent upon the natures of oil and gas and that the absolute dominion of the surface of the land is not an unlimited dominion over them. The case was cited in Lindsley v. Natural Carbonic Gas Co. 220 U. S. 61, 55 L. 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.

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 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 for other manufacturing purposes or domestic purposes." The declaration of illegality, however, only applies when the "gas or source of supply is located within 10 miles of any incorporated town or industrial plant." Section 2 explicitly mentions carbon black as within the illegality of the law, and, as this case concerns its production, we may accept its production as a test of the companies' case.

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 13 pounds of carbon black and 10 of a gallon of high-gravity gaso


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 as-replaced or restored. serted in Ohio Oil Co. v. Indiana. It was rejected upon the authority of that case. We, however, said: "Were the question

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, high, ranging only from 2.8 per cent to process used by the complainants is very 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

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

the facts averred. Those on the part of the companies are directed, to a great extent, to the value of carbon black and its use, and the detriment or disaster of the discontinuance or even reduction of its manufacture. And the explicit assertion is that it is absolutely impossible to utilize the heat generated as an incident to its manufacture. A comparison is made with other fuels, and the affidavits are explicit in statement that the requirement that the heat contained in them must be "fully and actually applied and utilized" (to use the words of the Wyoming statute) is not only unreasonable, but impossible. Figures are given not only of gas engines, but of oil, air, and steam engines. This is dwelt on at great length, and it is declared that it is absolutely impossible to utilize heat generated as an incident to the manufacture of carbon black. And it is said: "If the true test of the waste of gas or any other fuel is whether or not the heat therein contained is fully utilized, it would follow that practically every industrial use of fuel must be characterized as wasteful."

There is also testimony from those familiar with the geological formations, and the production of natural gas in Wyoming, that there are very extensive deposits underlying ten counties, and that their development has scarcely more than commenced, and that their potential capacity far exceeds the capacity of the wells now drilled. Further, that the aggregate capacity of the existing wells exceeds 650,000,000 cubic feet per day, and that this production could be largely augmented if the demands for natural gas in the state warranted.

[321] Opposing affidavits set forth the needs of the towns, present and prospective, and of industries other than carbon black, and that the wells of the companies are drilled into the same sand in which the wells of the Lovell Gas & Electric Company, an industry which furnishes gas and electricity to the town of Lovell, are drilled. The sand is a free flowing sand; that is, one in which the gas has free access from one part of the field to the other; consequently the gas pressure would be approximately the same at all the wells drilled into it. With the operation of the wells of the companies came a diminution of pressure, and "if the present consumption of gas continues for another year, there will not be sufficient gas in this field in the particular sand in question, to supply even the domestic uses of the town of Lovell." And it is affirmed that the plant of the Midland Gas Company consists of about

ninety separate buildings, constructed of sheet iron and steel, in such a way that they can be moved more readily than almost any other character of construction, and were evidently designed with the idea of portability in mind, and at the present rate of consumption of the gas, they will have to be moved, in any event, within a year. Corroborating figures of the supply and consumption are given, and it is said that if the wells now driven be allowed to flow at their full capacity, they will be entirely exhausted in ninety days. The proof of this is said to be that the use of 15,000,000 cubic feet per day of gas produced within the last eighteen months has caused a loss of 57 per cent of the available gas in the producing sand. In contrast, it is estimated, that if the gas consumed at the carbon plant was conserved, the supply available for domestic and industrial use in the towns of Lovell and Cowley would last for a period of ten years.

There is speculation as to other basins. of deposits of gas and its utility for industries, but which cannot be undertaken against the depletion by the production of carbon [322] black. The process to make the latter is said to be simple, and is similar to holding a cold plate over on old-fashioned gas jet. In fact, it is said, the process used by the Midland Carbon Company is merely an incomplete combustion of gases in an insufficient amount of air, the flames from the different jets practically touching cast-iron channel plates, which are suspended over the flames, and are moved backward and forward at a very slow rate of speed. The carbon is scraped off the plates into hoppers, and carried to the packing houses by conveyers. All of this is mechanical.

It is testified (by an engineer of the Bureau of Mines in the Interior Department, who had made a study of the making of carbon black) that the efficiency of the carbon black industry is very low; that the largest yield of which affiant had any knowledge did not exceed 1 pounds per 1,000 cubic feet of natural gas, though it is a well-known and chemically ascertained fact that 1,000 cubic feet of natural gas contains approximately from 33 to 45 pounds of carbon.

The companies replied with affidavits of opposing tendency, and made comparisons of the money value of carbon black with the money value of natural gas, the former being the more valuable. And there is contradiction of the asserted lower pressure of the wells and the tendency to the

depletion of the gas, and assertion that other forms of industry can well use coal for fuel.

We have seen that the method of production by natural gas is like holding a cold plate over a candle; or, as it is expressed by a witness, it can only be produced "by combustion and the impinging of the flame on the metallic surface." [324] And there is great disproportion between the gas and the product, and necessarily there was presented to the judgment and policy of the state a comparison of utilities which involved as well the preservation of the natural resources of the state, and the equal participation in them by the people of the state. And the duration of this utility was for the consideration of the state, and we do not think that the state was required by the Constitution of the United States to stand idly by while these resources were disproportionately

The affidavits (which we have presented necessarily in barest outline), whether they may be regarded as presenting issues of fact or of judgment, exhibit the conditions which may have moved the policy and legislation of the state. Manifestly, conceding a power to the state of regulation, a comparison of the value of the industries, and a judgment upon them as affecting the state, were for it to make. Such comparison may, therefore, be put aside. It may be, as it is deposed, that 1,000 cubic feet of natural gas converted into gasolene and carbon black may [323] be sold much higher than can be obtained from the same amount of gas sold for fuel purposes, but it does not follow from that fact used, or used in such way that tended to that the state may not consider, and their depletion, having no power of indirect its legislation by the considera- terference. tion, that (and we take the averment of the companies) 1,000 cubic feet of natural gas is consumed to produce 13 pounds of carbon black and about 10 of a gallon of gasolene. That it may so consider depends upon the question whether its statute is within the principle of the statutes passed on in Ohio Oil Co. v. Indiana and Lindsley v. Natural Carbonic Gas Co. By reverting to these cases it will be immediately observed that the power of regulation over natural gas is possessed by a state, and in the first case (Ohio Oil Co. v. Indiana) it was exercised to prohibit the employment of the gas as a means or agency in the production of oil against an asserted right of property in the ownership of the land upon which the oil was produced, and, therefore, of the oil and gas as incidents of such ownership, and which could be used in such manner and quantity as the landowner might choose.

The cited cases determine otherwise; and that, as the state of Indiana could prevent the exhaustive use of gas in the production of oil, and as the state of New York could prevent the owner of land from using artificial means to obtain the carbonated waters under his land, the state of Wyoming has the same power to prevent the use of natural gas in the production of carbon black, the tendency of which is (it may be the inevitable effect of which is) the exhaustion of the supply of natural gas, and the consequent detriment of other uses.

It may be said, however, indeed, is said, that the purpose of the act or its effect is a discrimination between producers of carbon black,-those 10 miles from a town or industrial plant not being within its provisions. We think the classification is justified by the case of Bacon v. Walker, 204 U. S. 312, 51 L. ed. 499, 27 Sup. Ct. Rep. 289, and indeed, by the principles which determine classification.

To the contention that the statute is not one of conservation, because carbon black factories are permitted if 10 miles distant from a town or industrial plant, the immediate answer is that it is for the state to determine not only if any conservation be necessary, but the degree of it; and certainly the companies cannot complain if the state has not exerted its full power.

In the Lindsley Case the power of the state was exerted to prohibit the owner of the surface from pumping on his own land, water charged with gas. This was but an exertion, it was said, to preserve from depletion the subterranean supply common to him and other owners, and that the statute, therefore, was not unconstitutional as depriving owners of their property without due process of law. Ohio 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

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