
    Barnard, Appellant, v. Monongahela Natural Gas Company.
    
      Oil and gas lease — Adjoining lands — Exhaustion of gas.
    
    A landowner has a right to drill an oil or gas well on any part of his land without regard to the effect on the adjoining land.
    The only .remedy of the adjoining owner is to protect his oil by a well on his own land.
    A lessee has the same rights in this respect as his lessor. But where the same lessee holds under two adjoining lessors he may not fraudulently or evasively so drill his wells as to drain the property of one to the detriment of the other.
    Such lessee may, however, drill a well on one farm close to the line of the other and draw from the latter three-fourths of th,e gas therein, if.it appears that he also drilled a well on the latter and in good faith endeavored to develop the land in the performance of his duty.
    Argued Oct. 18, 1906.
    Appeal, No. 124, Oct. T., 1906, by plaintiffs, from decree of C. P. Washington Co., No. 1,520, in equity, dismissing bill in equity in case of Daniel Barnard and Elizabeth Barnard v. The Monongahela Natural Gas Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    . Bill in equity for an injunction and an accounting.
    McIlvaine, P. J., filed the following opinion A ^ The court finds the facts in this case to be as follows :
    1. Daniel Barnard and Elizabeth Barnard, the plaintiffs in '.’this case, are the owners in fee of a tract of land in Deemston ; borough, in this county, containing' sixty-six acres, more or 'dess.
    2. James B. Barnard owns in fee a tract of land adjoining the plaintiffs’ land and containing 156 acres.
    3. The Monongahela Natural Gas Company, a corporation in the business of producing and marketing natural gas, holds a lease on each of these farms u for the purpose and with the ex- , elusive'right of drilling and operating thereon for petroleum and gas/’^which said leases were in full force and effect when , the bill herein was filed and are yet in force and effect. 1 By the terms of these leases the Monongahela Natural Gas Company is to pay to the respective lessors a fixed sum per year for the gas from each well drilled on their or his farm “ so long as it shall be sold therefrom.”
    4. The farm of James B. Barnard joins the farm of the plaintiffs, Daniel and Elizabeth Barnard, in such a way thatjat one corner of his farm there is an angle of about twelve degrees less than a right angle, and the lines of the adjoining farm that make this angle are respectively sixty-two and seventy-five rods long, so tlia|a circle large enough to include ten acres of ground with its center at this corner would inclose less than two and one-half acres of the land of James B. Barnard and seven and one-half acres of the land of Daniel and Elizabeth Barnard.
    5. That the Monongahela Natural Gas Company, the defendant, lately drilled a well on the James B. Barnard farmjin the corner described in our previous finding which is fifty-five feet from the actual corner, andjabout thirty-five feet from either of the lines dividing the two farms, and upon the completion of said well it was found to be a paying gas well [such as to entitle the lessor to his annual rental, provided for in the lease?j This well was drilled on the location chosen after the plaintiffs had protested against it being located so near their lines.
    6. That since this well was drilled on the James B. Barnard farm the defendant company has drilled a well on the plaintiffs’ farm 1,350 feet away from the James B. Barnard welEand not far from an angle which the line of the plaintiffs’ farm and their adjoiners make, f This well when completed failed to produce any gas.
    7. A gas well in time will drain ten acres, more or less, of land and if the gas producing sand is equally porous the gas will be drawn along all the radii of a circle of which the well is the center.
    ■ 8. The Monongahela Natural Gas Company, the defendant, when it located its well on the corner of the James B. Barnard farm did not do so with intent to fraudulently deprive the plaintiffs of their rights.
    CONCLUSIONS OB' LAW.
    1. That the drilling of the well on the farm of James B. Barnard by the defendant company and taking the gas therefrom in no way invades the plaintiffs’ property rights.
    
      2. That .the defendant company, under all the facts of this case, is not guilty of either actual or legal fraud in that it drilled the James B. Barnard well where it did and drained gas from the plaintiffs’ farm.
    COMMENTS.
    The facts in this case are not complicated and are substantially undisputed. But the plaintiffs’ contention raises a question of law that is both novel and interesting, and if sustained by the highest court of our state would revolutionize the manner of developing oil and gas leaseholds. “ What the law ought to be ” and “ what the law is ” are different questions. The Supreme Court, ignoring the principié of stare decisis, on account of changed conditions or for any reason justifying it, may declare “ what ought to be the law ” to be henceforth “ the law,” but the lower courts have no such authority ; our duty is to follow the lead of the decisions, not to qualify, explain, modify, overrule or reverse them.
    What then are the questions of law involved in this case, and under existing decisions how must they be answered ?
    The first question stated broadly is this: “ Can a landowner in gas territory, drill a well on his farm close to the line of his adjoining landowner and draw from the land of the latter three-fourths of the gas that his well may produce without so invading the property rights of the adjoining landowner as to be legally accountable therefor.” There is no doubt that the oil and gas confined in the oil and gas-bearing sands pf a farm belong to the one who holds title to the farm,' but it is also recognized both as a question of fact and law that oil and gas are fugitive in their nature and will by reason of inherent pressure seek any opening from the.earth’s surface that may reach the sand where they are confined. Mr. Justice Wiliams, in Wettengel v. Gormley, 160 Pa. 559, in discussing this question so far as it relates to oil, says: “ It is well understood among oil operators that the fluid is deposited in a porous sand rock, at a distance ranging from 500 to 3,000 feet below the surface. This rock is saturated throughout its extent with oil and when the hard stratum overlying it is pierced by the drill the oil and gas find vent and are forced by the pressure , to which they are subject into and through the well to the surface.” “An oil or gas well may draw its product from an indefinite distance and in time exhaust a large space. Exact knowledge on this subject is not at present attainable, but the vagrant character of the mineral and the porous sand rock in which it is found and through which it moves, fully justify the general conclusion we have stated above and have led to its general adoption by practical operators.” \
    “ The right of every landowner to drill a well on his own land at whatever spot he may see fit ” certainly must be conceded. If then the landowner drills on his own land at such a spot as best subserves his purposes what is the standing of the adjoining1 landowner whose oil or gas may be drained by this well ? He certainly ought not to be allowed to stop his neighbor from developing his own farm. There is no certain way of ascertaining how much of the oil and gas that comes out of the well was when in situ under this farm and how much under that. What then has been held to be the law ? — it is this, as we understand it, every landowner or his lessee may locate his wells wherever he pleases regardless of the interests of others. He may distribute them over the whole farm or locate them only on one part of it. He may crowd the adjoining farms so as to enable him to draw the oil and gas from them. What, then can the neighbor do? Nothing, only go and do likewise. He must protect his own oil and gas. He knows it is wild and will run away if it finds an opening and it is his business to keep it at home. This may not be the best rule, but neither the legislature nor our highest court has given us any better. No doubt many thousands of dollars have been expended “ in protecting lines ” in oil and gas territory that would not have been expended if some rule had existed by which it could have been avoided. Injunction certainly is not the remedy. If so, just how far niust the landowner be from the line of his neighbor to avoid the blow of “ this strong arm of the law ” ?
    This brings us to the second question in the case, and that is this, “Will a lessee who has a lease on each of two adjoining farms be enjoined at the instance of one of the landowners from drilling a well on the farm of the other at such a point as will drain most of the gas that it produces from the land of the first? ”
    This question, has in it an element that is not in the other and that grows out of the fact the landowners have a common ' lessee. We think it is well settled that the lessee has the same rights in regard to the locating of his wells as the landowner would have if doing the operating, but he cannot take advantage of the fact that he has leases on adjoining farms so as to fraudulently deprive either of his lessors of his royalty or annual gas rental. (^The law of this position is found in Kleppner ‘ v. Lemon, 176 Pa. 502, as explained in the later cases of Colgan v. Forest Oil Co., 194 Pa. 234, and Young v. Forest Oil Co., 194 Pa. 243. '
    The drilling of the well by the defendant company at. the point they did on the James B. Barnard farm was not as we have seen a fraud per se or simply because it would, drain gas from the plaintiffs’ farm; it might become a fraud because of something other than the drilling of this well, and that would be in refusing to develop or protect the plaintiffs’ farm. ' But I it appears that the defendant company soon after they drilled a well in£“the angle” of]the James B. Barnard farm alsp located and drilled to completion a well injpr near “an angle , of the plaintiffs’ farm where'he would have gotten some of the . gas of his neighbor on the other side of his farm had it been a producing well. The fact that this well proved a dry hole in no way militates against the defendant company’s effort to do . ’ the fair thing, as between it and the plaintiffs.''¡A Well on each farm, and James B. Barnard’s farm twice as large as that of' the plaintiffs’, does not show partiality toward James B. Bar- , nard. We are clearly of the opinion thatj there was no such fraud on the part of the defendant company in the premises as, would entitle the plaintiffs to either an injunction or an accounting for damages done by draining gas from their farm through the James B. Barnard well, and therefore the plaintiffs’ bill ^should be dismissed with costs. . * » *
    
      Error assigned was decree dismissing the bill.
    ' Boyd Grumrine, with him E. E. Grumrine,• for appellants.
    The owner of a tract of land holding natural gas in it has a ‘ property right in the gas protected by the law, and the right to take this gas, for a compensation to the owner, will pass to a lessee of the farm for the purpose of exploring for and obtaining it: Westmoreland, etc., Natural Gas Co. v. DeWitt, 130 Pa. 235; McKnight v. Natural Gas Co., 146 Pa. 185; Wettengel v. Gormley, 160 Pa. 559 ; s. c., 184 Pa. 354; Kleppner v. Lemon, 176 Pa. 502; s. c., 197 Pa. 430.
    January 7, 1907 :
    The defendant company having exclusive control of the gas in the plaintiffs’ farm, so that the plaintiffs could not drill for it and protect themselves, and putting down the well on the adjoining tract in such location that it must drain largely from the plaintiffs’ farm, was acting fraudulently as against the plaintiffs, in making use of its opportunities of control of both farms to get the plaintiffs’ gas without paying $300 per annum for each producing w-ell put down for it: Plummer v. Coal & Iron Co., 160 Pa. 483; Kleppner v. Lemon, 176 Pa. 502; Colgan v. Oil Co., 194 Pa. 234; Young v. Forest Oil Co., 194 Pa. 243; Adams v. Stage, 18 Pa. Superior Ct. 308.
    We submit that the principle of Kleppner v. Lemon, 176 Pa. 502, controls this case.
    
      R. W. Irwin, with him J. A. Wiley and A. T. Morgan, for appellee, cited : Colgair v. Forest Oil Co., 194 Pa. 234; Young v. Forest Oil Co., 194 Pa. 243.
   Per Curiam, Mr. Justice Fell,

Decree affirmed on the opinion of the court below.  