2 Mills (S. C. Const. Ret.), 244. - 1818.
Johnson, J., delivered the opinion of the court. - Until the bringing of this action, the right to hunt on unenclosed and uncultivated lands has never been disputed, and it is well known that it has been universally exercised from the first settlement of the country up to the present time; and the time has been, when, in all probability, obedient as our ancestors were to the law of the country, a civil war would have been the consequence of an attempt, even by the legislature, to enforce a restraint on this privilege. It was the source from whence a great portion of them derived their food and raiment, and was to the devoted huntsman, (disreputable as the life now is), a source of considerable profit. The forest was regarded as a common, in which they entered at pleasure, and exercised the privilege; and it will not be denied that animals, ferae naturae, are common property, and belong to the first taker. If, therefore, usage can make law, none was ever better established. This usage is also clearly recognized as a right by the several acts of the legislature on the subject; particularly the act of 1769 (Pub. Laws, 276), which restrains the right to hunt within seven miles of the residence of the hunter. Now if the right to hunt beyond that, did not before exist, this act was nugatory; and it cannot be believed that it was only intended to apply to such as owned a tract of land, the diameter of which would be fourteen miles. It appears to me also, that there is no rule of the English common law, at variance with this principle; but, it is said, that every entry on the lands of another is a trespass, and the least injury, as treading down grass and the like, will support it. (1 Esp. Dig., tit. Trespass, 221.) But there must be some actual injury to support the action. Now it will not be pretended that riding over the soil is an injury; and the forest being the common, in which the cattle of all are used to range at large, the grass, if perchance there be any, may also be regarded as common property; and surely no action will lie against a commoner for barely riding over the common. The right to hunt on unenclosed lands, I think, therefore, clearly established, but if it were doubtful, I should be strongly inclined to support it. Large standing armies are, perhaps, wisely considered as dangerous to our free institutions; the militia, therefore, necessarily constitutes our greatest security against aggression; our forest is the great field in which, in the pursuit of game, they learn the dexterous use and consequent certainty of firearms, the great and decided advantage of which have been seen and felt on too many occasions to be forgotten, or to require a recurrence to.
Having come to the conclusion that it is the right of the inhabitants to hunt on unenclosed lands, I need not attempt to prove that the dissent or dissapprobation of the owner cannot deprive him of it; for I am sure it never yet entered the mind of any man, that a right which the law gives, can be defeated at the mere will and caprice of an individual. * * *
Let the motion be dismissed.1
1 See also Broughton v. Singleton, 2 Nott & McCords (S. C), 338. - 1820. The game laws of the various States usually have some bearing upon the general question here discussed. - Ed.
Coffey, J., in
131 Indiana, 277. - 1891.
[Appellants contend] that they had the right to use their own property as to them seemed best, and for that reason, they could not be enjoined from exploding nitro-glycerine in their well for the purpose of increasing the flow of natural gas, though such explosion might have the effect to draw the gas from the land of the appellee. * * *
On the other hand, it is contended by the appellee: * * * that natural gas is property, and that the appellants have no legal right to do anything upon their own land which will draw such gas from his land, and appropriate it to their own use. * * *
It has been settled in this state that natural gas, when brought to the surface of the earth and placed in pipes for transportation, is property, and may be the subject of interstate commerce. State, ex rel. v. Indiana, etc., Co., 120 Ind. 575.
Water, petroleum oil and gas are generally classed by themselves as minerals possessing, in some degree, a kindred nature. As to whether the owner of the soil may dig down and divert a well-defined subterranean stream of water there is much diversity of opinion and conflict in the adjudicated cases, but the authorities agree that the owner of a particular tract of land may sink a well and appropriate to his own use all the percolating water found therein, though it may entirely destroy the well on his neighbor's land. Angell, Watercourses, § 112; Hanson v. McCue, 42 Cal. 303; Wheatley v. Baugh, 25 Pa. St. 528; Frazier v. Brown, 12 Ohio St. 294. Acton v. Blundell, 12 M. & W. 324; Delhi, Trustees, etc., of v. Youmans, 50 Barb. 316; Mosier v. Caldwell, 7 Nev. 363; New Albany, etc., R. R. Co. v. Peterson, 14 Ind. 112; City of Green-castle v. Hazelitt, 23 Ind. 186.
It is a familiar maxim that in contemplation of law land always extends downward as well as upwards, so that whatever is in direct line between the surface of any land and the center of the earth belongs to the owner of the surface. Mr. Angell says that it would seem to follow from this maxim that whether what is subterranean be solid rock, mines or porous soil, or salt springs, or part land and part water, the person who owns the surface may dig therein and apply all that is there found to his own purposes ad libitum. Angell, Watercourses, § 109.
1 See also Huff v. McCauley, 53 Pa. St. 206, supra, p. 76; Caldwell v. Fulton, 31 Pa. St. 475, tupra, p. 102.
Upon this principle it was held by this court in the case of New Albany, etc., R. R. Co. v. Peterson, supra, that if an adjoining landowner, in lawfully digging upon his own land, draws the water from the land of another, to his injury, such injury falls within the description of damnum absque injuria, which cannot become the ground of an action.