47 W. Va. 193 | W. Va. | 1899
Matilda McGregor et al. against Thomas B. Camden et ah, from the circuit court of Ritchie County; being an appeal from a decree dismissing a bill praying an injunction against an oil and gas well. The facts are as follows: The plaintiffs are the owners of a valuable lot a'nd dwelling house and appurtenances, alleged to be worth about ten thousand dollars, situated in the town of Cairo, said county. The lot is highly improved for the purposes for which it had been used for the past twenty-five years, to wit, as a
There are numerous technical objections urged in this cause that are hardly worthy of consideration. One is that the original bill was not properly verified. Section 3, chapter 133, Code, provides that “no injunction shall be awarded in vacation nor in court in a case not ready for hearing, unless the court or judge be satisfied by affidavit or otherwise of the plaintiff’s equity.” Whatever satisfies the judge of plaintiffs equity is sufficient, whether the bill be sworn to or not. The judge being satisfied, no one else can object. Such objection after the injunction is granted can amount to nothing but a mere legal quibble. The main facts on which the bill is founded are not even denied the only controversy between the parties being the question as to whether a gas and oil well can be so sunk and operated as not to be a nuisance to a dwelling house and lot within seventy feet of it. The bare statement of the case would apparently make it prima facie a nuisance. The noise and rumbling of steam-running machinery at all hours, both day and night, until they become accus
The bills, on demurrer, make out a strong case of nuisance against the defendants, and therefore the demurrer should have been overruled. They do not allege, however, that this well cannot be operated without danger or loss to plaintiffs’ property, although there are allegations from which tnis might be implied. Nor is this a matter of common knowledge, as there is little, if any, human experience to be had' in this direction, as but few oil wells have ever been located in so close proximity to a valuable home property. The evidence of the most expert and competent witnesses could alone shed light on this subject. The court cannot say without such evidence that the well could be operated without such danger and loss. The drilling of oil and gas wells is not only a legitimate business, but public policy upholds it, as being for the general welfare. Uhl v. Railroad Co. (decided at this term)- (34 S. E. 934). Yet public policy itself is qualified by the constitutional provision that private property shall not be taken or damaged for public use without just compensation. So public policy will not justify the maintenance of an oil well that is a nuisance to private property. The defendant Kelly, who appears to answer for all the defendants, admits many of the allegations of the bill, denies that it has so far damaged the plaintiffs’ property to any considerable extent, alleges that the well “is a paying well, and is now being operated with all the prudence, care, and skill known in the business,” but does not claim that such well can be so operated as to prevent any appreciable danger to plaintiff’s property from fire and gas. The proofs appear to establish the fact that the well and tank are an impending evil, continually hanging over the plaintiffs’ property,
From the vacation order recited, it is hard to tell on just what state of the pleadings the circuit court decided this case. It was submitted on bill and demurrer thereto, answers of J. H. Kelly tendered, and exceptions thereto, affidavits and depositions, and motion to dissolve the injunction. If the judge regarded the answers as though replied to generally, and read the plaintiffs’ depositions, a good frmia facie case for injunction was made out, and the injunction should have been continued to the hearing; but, if he regarded the answers in without replication, then, in so far as they controvert the bill, they must be taken as true, and would be decisive of the case, for the depositions could not be considered in opposition to the admission of the truth of the answer. 2 Tuck. Bl. Comm. 479. It is there sáid: “If the plaintiff does not reply to the answer, but.the cause is set down for heax-ing upon bill and answer, without replication, the answer is to be taken in all things as true.” “In injunction cases, as we have said, the defendant may file his answer the day before the commencement of the term, and move even the next day for dissolution. Here the motion may come on without replication, but the answer is to be taken and considered as if there was a replication.” In this case the plaintiffs never had an opportunity to reply to the answers, for the judge
Attention is called to the use of the phrase “if any,” so often repeated in the bill. This refers solely to the salt water-, and is used for the reason that plaintiffs did not know whether saltwater was or would be present or not in the output of the well. There is much immaterial matter contained in the answers, which rather prejudice the defendants in a court of equity than otherwise. They claim that the well is necessary to secure the oil and gas under the eighty-five by one hundred and fifteen and a half feet of ground, worth about four thousand doMars. That this is false, the defendants established themselves, by locating their well within fifteen feet of the line of the McGregor land. Nor was any such attempted misleading allegation necessary, for the reason that, while oil and gas in place are regarded as real estate, yet, being fugitive in nature, they are not the absolute property'of the landowner until he reduces them to possession, and they become the property of him who first lawfully makes this reduction. They are the property of the landowner in the earth, just as the
Reversed.