
    (103 So. 23)
    No. 24886.
    LOUISIANA GAS & FUEL CO. v. WHITE BROS.
    (Feb. 2, 1925.)
    
      (Syllabus by Editorial Staff.)
    
    1. Mines and minerals &wkey;»!2i — Landowner has no moneyed claim against adjoining owner for waste of fugitive gas.
    Landowner does not own fugitive gas beneath land and has no moneyed claim against owner of adjoining' land for negligently permitting well near line to blow out and allowing gas to escape, his only remedy being by action to enjoin waste.
    2. Costs <&wkey;32(3) — Costs equally divided her tween parties where plaintiff, though partly successful on appeal, lest case.
    Where plaintiff, though partly successful on appeal, lost its suit and defendants increased costs and forced appeal by advancing claim in which they were not successful, costs should be divided equally between parties, in view of Act; No. 229 of 1910.
    Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.
    Suit by the Louisiana Gas & Fuel Company against White Bros. Judgment for defendant, and plaintiff appeals.
    Reversed, and suit dismissed.
    
      ■ Wilkinson, Lewis & Wilkinson, of Shreveport, for appellant.
    Blanchard, Goldstein & Walker, of Shreveport, for appellees.
   ST. PAUL, J.

Plaintiff alleges that it is the owner of a mineral lease on the west half of a certain quarter section of land, and that defendant is owner of a similar lease on the adjoining southeast quarter of the same quarter section; that plaintiff has drilled a gas well on the southwest corner of its holding; that defendant has also drilled a gas well on the southwest corner of its (defendant’s) holding, near plaintiff’s line, but has drilled it so negligently that it blew out, forming a crater, and is allowing to escape and go to waste. 10,000,000 cubic feet of gas a day worth 2 cents per 1,000; thus gradually exhausting the common reservoir, and damaging plaintiff to the extent of one quarter of said waste, or $50 per day; say $36,500 for two years preceding the filing of the suit, for which plaintiff seeks judgment

I.

It will be observed that both wells are drilled near the south line of said quarter section, and therefore adjoining another section to the south of the holdings of both parties; also, that defendant owns one-half said quarter section.

'And it nowhere appears just why plaintiff claims one-fourth of the wasted gas instead of one-half, or some other proportion; except upon the fanciful supposition that the area of the common reservoir is exactly four times the area of plaintiff’s holdings; and that therefore plaintiff is entitled to one-fourth of its contents.

.II.

The defendant filed an exception of no cause of action, which was overruled by the court below and renewed in this court. This ■ exception is well founded.

Even if plaintiff were owner of that proportion of the gas in the common reservoir, which the area of its holding bears to the total area of such common reservoir, nevertheless it is not alleged (and much less could it be proved) what the area of that common reservoir may be, and what part of it lies beneath' plaintiff’s holdings. So that there would be no measure for any special damages which plaintiff might suffer. And as for general damages, plaintiff could recover none unless it showed that defendant had wasted (or drawn) out of the common reservoir more than its (defendant’s) just proportion of the gas in that common reservoir, which, or course, plaintiff could never show.

III.

But plaintiff is not the owner of the gas beneath its holdings; and ohe of the best evidences of that, if it were not already established authoritatively, is this very impossibility of showing damages as above said.

But:

“It is the .settled jurisprudence of this state that oil and gas in place are not subject to .absolute ownership as specific things apart from the soil of which they form part.’’ Frost-Johnson Lumber Co. v. Sailing’s Heirs, 150 La. 756, 91 So. 207.

And again:

“The owner [of the soil] has no absolute property in such oils, gases, and waters, but only, the right to draw them through the soil and thereby become the owner of them.” 150 La. 863, 91 So. 245.

And in Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206, 5 A. L. R. 411, this court held, that:

“An owner of land does not own the fugitive oil [and gas] beneath it, and cannot complain that it is being drawn off by a pump [or well] sunk by an adjoining land owner.”

. Hence it follows that, were defendant merely drawing out of the common reservoir, and using legitimately the 10,000,000 feet of gas now going to waste, it is clear that plain•tiff would have no- cause whatever to complain. Hence, therefore, plaintiff would have no moneyed (or other) claim against defendant.

IV.

The question then arises, does the fact that the gas is'being wasted instead of being used, give plaintiff the right to a moneyed claim against defendant. We think not; the gas that is being wasted is no more plaintiff’s gas than it would be were it being used legitimately. He has therefore no claim for the value thereof.

■ V.

We do not mean to say however that the owner of lands in an oil or gas field is without a remedy 'against the waste and waste-, ful methods of an adjoining owner. On the contrary, in Higgins Oil & Fuel Co. v. Guaranty Oil Co., supra, Mr. Justice Provosty has well pointed out that' he has a remedy, citing abundant authority therefor, all of which are after all but applications of the age-renowned maxim of the Roman law, “Sic utere tuo ut neminem laedas” viz. “Use thine own [right] so as not to injure thy neighbor [wantonly].” And for the enforcement of this moral maxim the law provides a remedy, viz. an action to abate a nuisance, public or private.

Accordingly, the owner of lands in an oil or gas field may enjoin waste (or other injurious practices) on the part of others in the same field. Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206, 5 A. L. R. 411; Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 S. Ct. 576, 44 L. Ed. 729. Moreover, the "state itself has now taken steps to prevent or minimize any such waste in the gas fields. Act 268 of 1918, p. 513; Act 270 of 1918, p. 516.

But wé will pursue this subject no further, since defendant’s “wild” or runaway well has long since been brought under full control.

. VI.

In the court below, the defendant (after its exception had been overruled) answered by laying the blame on plaintiff, and reconvened for the cost of bringing their own well under control. The trial judge found the facts to be with defendant and gave judgment against plaintiff. In this court plaintiff has filed a plea of prescription of one year to that claim, which plea is well founded and disposes of that claim. Defendant also made a claim on the same lines as that made by plaintiff, and which therefore must suffer the same fate.

VII.

The appeal was taken by plaintiff, the defendant has answered praying that its exception of no cause of action be maintained. The proper disposition of this casé will be to reverse the judgment of the court below and maintain the exception of no cause of action. But we think the costs should be divided equally between both par; ties, since plaintiff, though partly successful on appeal, has yet lost its suit, but defendants have increased the costs and forced an appeal by advancing a claim in which they were not successful. See Act 229 of 1910, p. 388.

’ Decree.-

The judgment appealed from is therefore reversed, and it is now ordered that the exception herein filed by defendant be maintained and the suit dismissed and the demand of both parties rejected. All costs to be equally divided between plaintiff and defendants.

LAND, J., recused.  