
    The State of Ohio ex rel. v. The Oak Harbor Gas Co.
    
      Abandoned gas or oil wells — Filling same — Form of petition — Act of Febmiary 9, 1893, (90 Ohio Laws, 24.)
    
    When an oil or gas well is about to be abandoned, or operation thereof cease, the statute (90 O. L., 24) requires, that before drawing the casing therefrom, it shall be securely filled in such manner as shall prevent the surface or fresh water from penetrating to the oil or gas bearing rock, and also as shall prevent the gas and oil from escaping therefrom. To comply with this statute, it is required that the necessary filling be done while the casing yet remains in the well; and a petition for the violation of this statute need not aver that the casing has been drawn.
    (Decided October 22, 1895.)
    Error to the Circuit Court of Ottawa county.
    The petition of plaintiff below, plaintiff in error here, is as follows:
    “The defendant is a corporation duly incorporated under the laws of the state of Ohio.
    “The defendant for several years last past has been the operator of a certain well, constructed for the purpose of producing petroleum oil, and natural gas, the same being- situated upon the parcel of land described as follows, to-wit: The east half of the southwest quarter of section three, Salem township, Ottawa county, Ohio. Defendant claims to be the owner of said well and pretends to be operating- the same for the production of petroleum oil and natural gas. But complainant alleges that said well has ceased to produce either petroleum oil, natural gas or any other profitable mineral substance, and has become wholly non-productive and of no value or use, and in fact the defendant has ceased to operate the same; and the condition of said well is such that surface or fresh water penetrates the oil or gas bearing rock through said well.
    “Complainant alleges that defendant has ceased to operate said well, and ever since the first day of April, 1893, he has unlawfully and wilfully neglected and omitted to securely fill said well with rock sediment, or with mortar composed of two parts sand and one part cement to the depth of two hundred feet above the top of the first oil or gas bearing rock, in such manner as to prevent the surface or fresh water from penetrating to the oil, or gas bearing rock, and in such manner as shall prevent the gas and oil from escaping from said well, as required by law, but the defendant has wholly, wilfully and unlawfully neglected and omitted and failed to fill said well in any manner whatever and has omitted to make any attempt to do the same in any manner, and all of which defendant refuses so to do, whereby the fresh or surface water penetrates to the oil and gas bearing-rock of said well, and gas and oil escapes therefrom, contrary to the form of the statute in such case made and provided.
    “Wherefore complainant prays that the defendant be found guilty of the facts charged and required to pay the penalty provided by law, and that a mandatory injunction may issue compelling the defendant to comply with the provisions of the act of February 9, 1893, entitled ‘An act to regulate- drilling, operating and and abandonment of petroleum oil, natural gas and mineral water wells, and prevent certain abuses connected therewith.
    
      To this petition, defendant below filed a general demurrer to the effect that the petition did not state facts sufficient to constitute a cause of action against the defendant. The demurrer was overruled by the court of common pleas and exceptions taken, and thereafter defendant filed the following answer:
    ‘£ The defendant now comes and admits that it is a corporation as alleg-ed in the petition.
    ££It also admits that it is the owner of the well described in the petition; and that it has not filled up its said well; but it denies each and every other allegation contained in said petition.”
    Upon trial of the case to a jury a verdict of guilty was returned, and the penalty of one hundred dollars was assessed against the defendant. A motion for a new trial was filed, on the ground that the verdict was against the weight of the evidence, and that the court erred in overruling the demurrer. This motion was overruled and exceptions taken, and judgment entered on the verdict.
    Upon proceedings in error the circuit court reversed the judgment on the ground that the petition does not state facts sufficient to constitute a cause of action, and that the court of common pleas erred in overruling- the demurrer to the petition. Thereupon a petition in error was filed in this court, seeking- to reverse the judgment of the circuit court.
    
      G. I. York and John Duff, for plaintiff in error.
    
      Thomas J. Marshall, for defendant in error.
   By the Court:

Section two of the act of February 9, 1893, 90 O. L., 24, provides that the owner or operator of any gas or oil well, when about to abandon or cease operating the same, and before drawing the casing therefrom, shall securely fill such well with rock sediment, or mortar composed of two parts sand and one part cement, to the depth of two hundred feet above the top of the first oil or gas bearing’ rock, in such manner as shall prevent the surface or fresh water from penetrating to the oil or gas bearing rock, and also as shall prevent the gas and oil from escaping therefrom. The penalty for a violation of the statute is one hundred dollars.

The particular in which the petition is claimed to be defective, is, that it does not aver that the easing had been drawn from the well. It is urged that so long as the casing remains in the well that there is no violation of the statute. It will be noticed that the statute requires the well to be securely filled, in such manner as shall prevent the surface or fresh water from penetrating to the oil or g-as bearing rock, and also as shall prevent the gas and oil from escaping therefrom. The filling is to be such as will keep the water out and the gas’ and oil in the rock. To draw the tubing out, léaving the casing in, would permit a free escape of gas and oil from the well; and if, by reason of age, corrosion, or other cause, the casing should become full of holes and leak, the fresh water would penetrate to the oil and gas bearing rock, to the great damage of the surrounding oil and gas territory. So that in case of such defective casing, even though the casing remains in the well, the fresh water will get to the oil or gas bearing rock, and the oil and gas will escape therefrom. It is therefore clear that it is not the drawing of the casing- that is the test as to whether a well has been abandoned or ceased to beoperated. The well may be abandoned and • all operations cease, with the casing left in the well. If the casing is in good condition no water can get into the well, but the tubing being pulled out the gas and oil can freely escape, even though the casing’ remains in the well. The reason the filling is to be done before drawing the casing is that the filling cannot be so securely done after the casing is drawn.

To shut down a well, leaving in the tubing and casing, is not to abandon it, nor ceasing to operate it. What is meant by the statue is a permanent abandonment, or a permanent ceasing- to operate, followed by pulling out the tubing, and usually, though not always, followed by drawing the casing.

It is therefore not necessary to the abandonment of, or ceasing- to operate a well, that the casing’ should be drawn, and it is not necessary to make an averment to that effect in the petition. The petition in this case therefore states facts sufficient to constitute a cause of action against the-defendant, and the demurrer was properly overruled. The circuit court therefore erred in reversing the judgment.

The judgment of the circuit court is reversed and, that of the common pleas affirmed.  