Gerkins, &C., v. Kentucky Salt Co., &C.

• Decision Date: 25 February 1897
• Citation: 100 Ky. 734
• Parties: Gerkins, &c., v. Kentucky Salt Co., &c.
• Court: Kentucky Court of Appeals

100 Ky. 734

Gerkins, &c., v. Kentucky Salt Co., &c.

Court of Appeals of Kentucky.

February 25, 1897.

APPEAL FROM MEADE CIRCUIT COURT.

ERNEST MACPHERSON, W. W. THUM AND WM. J. HENDRICK FOR APPELLANTS.

JAMES P. GREGORY AND FAIRLEIGH & STRAUS FOR APPELLEES.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

The Kentucky Salt Co. is asserting the right to operate a gas well on land owned in remainder by the appellants, and bases its claim to do so on a contract of lease authorizing an entry on the land, and the opening of the well, made alone with the owner of the life estate, who was also one of the remaindermen.

The question, therefore, is, may the life tenant lease the land for the purpose of boring for natural gas, and transport it as an article of commerce without impeachment for waste? If not his lessee may be enjoined and required to account.

In the courts of Pennsylvania and West Virginia, where the characteristics of this substance have been considered with great care, it is held that where the tenant, under proper authority, bores a well for oil and unexpectedly finds gas, he may separate it and have it without additional compensation to his landlord. Its nature is said to be so volatile and fugitive as that when it becomes severed from the land it belongs to the first taker. (Wood County Petroleum Co. v. W. Va. Trans. Co., 28 W. Va., 210; 57 Am. Rep., 659; Westmoreland, &c., Nat. Gas Co. v. DeWitt, 130 Pa., 235; 5 L. R. A., 731.)

All the authorities agree, however, that when in place it is a part of the land and goes with the inheritance.

In the recent case of Koen, &c., v. Bartlett (W. Va.) — 31 L. R. A., 128 (1895), the respective rights of life tenants and remaindermen in certain natural gas wells were involved, and it was held that where the severance was lawful, as where the mines of gas were open when the life tenant came in, he might work them even to exhaustion; but that if the severance was unlawful the remaindermen might sue at law or enjoin in equity and have an accounting. These principles are conclusive of this case and entitle the appellants to relief. Just what the relief should be is a more difficult question. The company, the purchaser of the life estate, with the knowledge of two of the remaindermen out of the six, and with the consent of another of them, in fact under a grant from him, has entered on the premises and at a great cost erected its machinery, etc. The specific relief asked is to close the well. To do...