Commonwealth v. Trent

• Decision Date: 09 December 1903
• Parties: COMMONWEALTH v. TRENT et al.
• Court: Kentucky Court of Appeals

77 S.W. 390

117 Ky. 34

COMMONWEALTH v. TRENT et al.

Court of Appeals of Kentucky.

December 9, 1903

Appeal from Circuit Court, Meade County.

"To be officially reported."

Penal action by the commonwealth against J. H. Trent, Jr., and others. From a judgment of dismissal, plaintiff appeals. Reversed.

J. D Hardin, Clifton J. Pratt, and J. W Lewis, for the Commonwealth. Humphrey Burnett & Humphrey, F. M. Sackett, and Alexander G. Barrett, for appellees.

HOBSON J.

This is a penal action instituted by the commonwealth against appellees. The court sustained a demurrer to the petition and dismissed the action. The only question on the appeal is whether the facts stated constitute a cause of action. It is averred in the petition that the defendants conspired and confederated together for the unlawful purpose of obtaining and wasting natural gas from lands embraced in the gas belt of Meade county, Ky.; that, to effectuate and carry out this purpose, they bored six wells in this gas belt, four of them proving to be fine, producing gas wells, and yielding about 600,000 feet of gas per day; that these wells were in the possession and under the absolute control of the defendants, either as owners, agents, or managers, and that the defendants, under the pretense of manufacturing lampblack, but really with the unlawful purpose to waste the gas and destroy the gas territory in Meade county, Ky. willfully and maliciously burned and wasted all of the gas from the four wells after it had been piped into a general tank or gasometer from the -- day of December, 1901 to the 14th day of June, 1902, in violation of the rights of the owners of the gas land, and contrary to the provisions of the statute. It is also alleged that the wells were not utilized by the defendants within three months after they were bored, nor shut in so as to prevent the product from wasting by escape, but that the defendants suffered and permitted the gas to escape and waste as above set out. It is insisted for the appellees that the facts stated make out no cause of action under the statute, for the reason that it is not charged that the gas was allowed to waste by escape at the well, and that the Legislature did not mean to make criminal the use by the citizen of his own property, even though that use brought him no pecuniary profit or was unwise. On the other hand, it is insisted for the state that, if the defendants willfully and maliciously wasted the gas, the form in which they did so is immaterial, under the statute. The question turns upon the proper construction of the act, which is as follows:

"An act to prevent the wasting of petroleum, natural gas, salt water, and to provide for the plugging of all abandoned wells.

"Be it enacted by the General Assembly of the commonwealth of Kentucky:

"Section 1. That from and after the passage of this act, any person or corporation, and each and every of them, in possession, whether as owner, lessee, agent or manager, of any well in which petroleum, natural gas or salt water has been found, shall, unless said product is sooner utilized, within a reasonable time, not, however, exceeding three (3) months from the completion of said well, in order to prevent said product wasting by escape, shut in and confine the same in said well until such time as it shall be utilized: provided, however, that this section shall not apply to gas escaping from any well while it is being operated as an oil well, or while it is used for any fresh or mineral water.

"Sec. 2. That whenever any well shall have been put down for the purpose of drilling or exploring for oil, gas or salt water, upon abandoning or ceasing to operate the same, the person or corporation in possession as aforesaid shall, for the purpose of excluding all fresh water from the gas-bearing rock and before drawing the casing, fill up the well with sand or rock sediment to the depth of at least twenty (20) feet above the rock which holds the oil, gas or salt water, and drive a round seasoned wooden plug, at least three (3) feet in length, equal in diameter to the diameter of the well below the casing, to a point at least five (5) feet below the bottom of the casing; and immediately after drawing the casing, shall drive a round seasoned wooden plug, at a point just below where the lower end of the casing rests, which plug shall be at least three (3) feet in length, tapering in form, and of the same diameter, at the distance of eighteen (18) inches from the smaller end, as the diameter of the hole below the point at which it is to be driven. After the plug has been properly driven, there shall be filled on top of the same sand or rock sediment to the depth of at least five (5) feet.

"Sec. 3. Any person or corporation who shall violate any of the provisions of the first or second sections of this act shall be liable to a penalty of one hundred dollars ($100) for each and every violation thereof, and the further penalty of one hundred dollars ($100) for each thirty (30) days during which said violation shall continue; and all such penalties shall be recovered, with costs of suit, in the name of the state, for the use of the county in which the well shall be located.

"Sec. 4. Whenever any person or corporation in possession of any well in which oil, gas or salt water has been found, shall fail to comply with the provisions of the first section of this act, any person or corporation lawfully in possession of lands situate adjacent to or in the neighborhood of said well, may enter upon the lands upon which said well is situated, and take possession of said well from which oil, gas or salt water is allowed to escape, or waste, in violation of said first section, and tube and pack said well, and shut in said oil, gas or salt water, and may maintain a civil action in any court of this state against the owner, lessee, agent or manager of said well, and each and every of them, jointly and severally, to recover the cost thereof. This shall be in addition to the penalties provided by the third section of this act.

"Sec. 5. Whenever any person or corporation shall abandon any well, and shall fail to comply with the second section of this act, any person or corporation lawfully in possession of lands adjacent to or in the neighborhood of said well, may enter upon the land upon which said well is situated, and take possession of said well, and plug the same in the manner provided by the second section of this act, and may maintain a civil action in any court of this state against the owner or person abandoning said well, and every of them, jointly and severally, to recover the cost thereof. This shall be in addition to the penalties provided by the third section of this act: provided, this section shall not apply to persons owning the lands on which said well or wells are situated and drilled by other parties; and in case the person or corporation drilling said well or wells is insolvent, then, in that event, any person or corporation in possession of lands adjacent to or in the neighborhood of said well or wells, may enter upon the land upon which said well or wells are situated and take possession of said well or wells, and plug the same, in the manner provided for in the second section of this act, at their own expense.

"Sec. 6. Inasmuch as large quantities of petroleum, natural gas and salt water are now flowing to waste in this state from wells which have been abandoned and never plugged up, and inasmuch as the said waste is likely to be greatly increased by developments now in progress, therefore an emergency exists; and on account of such emergency, this act shall take effect and be in force from and after its passage."

Acts 1891-93, pp. 60-62 (Ky. St. 1899, § § 3910-3914).

It is argued with much force that as by section 4 the adjoining owner is allowed to take possession of and plug up any well from which gas is allowed to escape by waste, and as by section 6 the act is made to take effect from its passage because of the gas then flowing to waste from wells which had been abandoned and never plugged up, the whole act applies only to abandoned wells, or those left open, and not to waste of gas elsewhere than at the well. Sections 2 and 5, by their terms, apply to abandoned wells, and the existence of these abandoned wells is the reason given in section 6 for making the act take effect from its passage; but sections 1 and 4 are not by their terms limited to abandoned wells, and, as abandoned wells are fully provided for in sections 2 and 5, it...