In the case of Haldeman v. Bruckhart, 45 Pa. St. 514, it was said: " The purchaser of lands on which there are unknown sub-surface currents, must buy in ignorance of any obstacle to the full enjoyment of his purchase indefinitely downwards, and the purchaser of _ lands on which a spring rises, ignorant whence and how the water comes, cannot bargain for any right to a secret flow of water in another's land."
Mr. Gould, in his works on " Waters," 2d ed., section 291, says: " Petroleum oil, like subterranean water, is included in the comprehensive idea which the law attaches to the word land, and is a part of the soil in which it is found. Like water, it is not the subject of property except while in actual occupancy, and a grant of either water or oil is not a grant of the soil or of anything for which ejectment will lie."
In recognition of the principle here announced, in the case of Brown v. Vandegrift, 80 Pa. St. 142, it was said by the court that " The discovery of petroleum led to new forms of leasing land. Its fugitive and wandering existence within the limits of a particular tract was uncertain, and assumed certainly only by actual development founded upon experiment."
What is said of the fugitive character of percolating water and of petroleum oil applies with greater force to natural gas.
In the case of Westmoreland, etc., Gas Co. v. DeWitt, 130 Pa. St. 235, it was said: " Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals ferae naturae. In common with animals, and unlike other minerals, they have the power and the tendency to escape without the volition of the owner. Their fugitive and wandering existence within the limits of a particular tract is uncertain. * * * They belong to the owner of the land and are a part of it, so long as they are on or in it, and are subject to his control; but when they escape, and go into other land, or come under another's control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas. If an adjoining, or even a distant, owner, drills his own land, and taps your gas, so that it comes into his well and under his control, it is no longer yours, but his."
It is not denied by the appellee in this case that the appellants have the perfect legal right to sink a well into their own land and draw therefrom all the gas that may naturally flow to it; but he contends that they have no right to explode nitro-glycerine in the well to increase the natural flow.
When it is once conceded that the owner of the surface has the right to sink a well and draw gas from the lands of an adjoining owner, no valid reason can be given why he may not enlarge his well by the explosion of nitro-glycerine therein for the purpose of increasing the flow. The question is not as to the quantity of gas he may take, but it is a question of his right to take the gas at all.
So far as this suit seeks to enjoin the appellants from exploding nitro-glycerine in their gas well, upon the ground that it will increase the flow of the gas to the injury of the appellee, it cannot, in our opinion, be sustained.
17 California, 199. - i86i.
Action by Moore to recover for gold extracted and removed from his premises by defendant. A demurrer was interposed, the substance of which is that the title of the plaintiff, as disclosed by the complaint, was of such a character as to vest in him only the ownership of the soil, without any interest in the minerals of gold and silver which it contained.
In the case of Fremont v. Flower, which involves the same questions, and was argued herewith, an answer was interposed, in which it was alleged that Fremont never had any interest in the gold or gold-bearing quartz contained in the soil, and further, in a first count, that they are the absolute and exclusive property of the state of California, and, in a second count, that they are in like manner the absolute and exclusive property of the United States.
Plaintiffs trace back their title in each case to a grant from the Mexican government confirmed by patents from the United States, which patents make no reservations of minerals or mineral lands.
At the time of the original grants by the Mexican government " it was the established doctrine of the Mexican law that all mines of gold and silver in the country, though found in the lands of private individuals, were the property of the nation. No interest in the minerals passed by a grant from the government of the land in which they were contained, without express words designating them." There were no such words in these grants.
Field, C. J. - * * * We do not understand that this conclusion [that the gold did not pass under the Mexican grant] is controverted by the defendants; but two positions are advanced by them which, though inconsistent with each other, would, if sustained, be equally availing against the claims of the plaintiffs: 1st, that the minerals of gold and silver, which passed by the cession, were held by the United States in trust for the future state, and that upon the admission of California the ownership of them vested in her; and, 2d, that the minerals remain the property of the United States, and did not pass by their patents.
The first position finds support in the decision of Hicks v. Bell, 3 Cal. 219, where this court held that the mines of gold and silver found in the public lands are the property of the state by virtue of her sovereignty; and assumed that similar mines in the lands of private citizens also belonged to her by the same right. That decision has not met the approbation of the profession or retained the approbation of the distinguished judge who delivered it. The question as to the ownership of the minerals was not raised by counsel, and its determination was not required for the disposition of the case. But independent of this consideration which only goes to the force of the decision as authority, we are clear that the doctrine there advanced cannot be sustained. It is undoubtedly true that the United States held certain rights of sovereignty over the territory which is now embraced within the limits of California, only in trust for the future State, and that such rights at once vested in the new State upon her admission into the Union. But the ownership of the precious metals found in public or private lands was not one of those rights. Such ownership stands in no different relation to the sovereignty of a State than that of any other property which is the subject of barter and sale. Sovereignty is a term used to express the supreme political authority of an independent State, or nation. Whatever rights are essential to the existence of this authority are rights of sovereignty. * * * To the existence of this political authority of the State - this qualified sovereignty, or to any part of it - the ownership of the minerals of gold and silver found within her limits is in no way essential. The minerals do not differ from the great mass of property, the ownership of which may be in the United States, or in individuals, without affecting in any respect the political jurisdiction of the State. They may be acquired by the State, as any other property may be, but when thus acquired she will hold them in the same manner that individual proprietors hold their property, and by the same right; by the right of ownership, and not by any right of sovereignty.