Opinion of the Court by
Reversing.
The penalty fixed for such violations is a fine of not less than one hundred ($100.00) dollars and not morе than one thousand ($1,000.00) dollars in the discretion of the jury, and in this case it was assessed at the sum of three hundred ($300,0,0) dollars, upon which judgment was rendered, and defendant’s motion for a new trial was overruled and it prosecutes this appeal urging as grounds for reversal (1), that its motion for a directed verdict of acquittal should have been sustained, because (a) the well which it is charged with abandoning without plugging was a cased one and the casing was in it at the time of the indictment as well as at the time of the trial and had never been removed therefrom, (b) because the evidence did not show an abandonment of the well within the legal meaning of that term as used in the statute, and (2), because of error in the instructions given by the court to the jury. The contentions of counsel for appellant will be disposed of as briefly as possible in the order named.
1. At first blush, and upon only a cursory reading, it must be admitted that contention (a) has some plausibility for its support, but a critical and аnalytical reading of the statute, in the light of statutory and common law rules adopted and applied in arriving at their true in
It will be observed that the first part of the statute makes it unlawful for any of the persons named therein “to abandon any оil or gas well, either dry or producing, in this 'Commonwealth,” which language is immediately followed, but separated by a comma, with the language “ or to remove casings therefrom, whether same be either oil or gas, either producing or dry, or for any cause abandon said well or wells,” without first plugging them as therein directed “before the casing is removed.” The phrase “or to remove casings therefrom” was evidently intended by the legislature to ipso facto create such an abondonment as it was intended to prevent without plugging, for that which follows plainly indicates that even a producing well may be abandoned by the remov
This brings us to a cоnsideration of contention (b), calling for a definition of the word “abandonment,” as used in the statute. Etymologically, according to Mr. Webster, the word “abandon” means: “To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish аll connection with or concern in; to desert, as a person to whom one is bound by a special relation, as of allegiance or fidelity; to quit, forsake.” In law the act of abandonment consists in both fact and intention. Thus in the case of Lowther Oil Co. v. Miller-Sibley Oil Co.,
This court in the case of Bay State Petroleum Co. v. Penn Lubricating Co.,
The facts in this case, as developed by the testimony, are that defendant completed and cased the well, which it is charged to have abandoned, in April, 1919. On the same lease about one thousand feet therefrom it completed the boring of another well on May 25 thereafter, which proved to be dry. The first one had a slight tracing of oil, and water arose in it to the depth of about ninety feet. Other wells were being drilled upon adjoining leases on three sides of defendant’s lease. The showing of oil in the first well bored was very meager and it was a bare speculation as to whether it would ever be made to produce more than from one to five barrels per day. But defendant concluded that it would not draw the casing therefrom and would not test it by pumping until it sunk other wells in the immediate vicinity, in thе pumping of which, and the one first bored, the same pow-er could be used. It therefore deferred the boring of other wells on that lease, as it claims, until further development on adjoining leases, from which latter results it would be the better enabled to select locations for other wells which it might or might not drill on its lease, dеpendent upon the success of the unfinished wells (either contemplated or actually begun) on adjoining leases, and under the conditions as thus testified to it moved its rig from the lease and never brought it back. It, however, left some tubing and other material thereon which were removed under the conditions hereinafter shown.
The facts in this case bearing upon the question as to whether defendant abandoned the well, for which act it was indicted, are very similar to those found in a number of the cases, supra, in which it was held that they were sufficient to authorize a finding of the fact of abandonment. It is not overlooked that in those cases the thing abandoned was the lease instead of a well, as in this case, but we take it that the elements of abandonment, and the facts necessary to constitute it in the one case are practically, if not exactly, the same as in the other.
It will be observed that under the evidence as above recited the expressed intention of defendant to resume operations upon the lease after moving its drilling machinery therefrom was entirely conditional, and we are not informed whether the fact upon which the condition wаs to be determined ever happened, and if so what the result was; i. e., whether the wells on the adjoining leases were ever completed, and if so whether they were producing or dry ones. It was nearly a year after the drilling machinery was removed before the lease was surrendered, and more than a year before any record was made of that fact. Under the circumstances, we think it was pre-eminently a question for the jury to determine whether the well had in fact been abandoned by defendant and we must therefore overrule contention (b).
2. The court gave to the jury instructions numbers 1, 2, and 3. The first one submitted to the jury the facts cоnstituting the offense, as defined in the statues, and about which no complaint is or can be made; the second one was the reasonable doubt instruction, and the third
The error in instruction No. 3 was material and prejudicial, and because thereof the judgment is reversed with directions to grant a new trial, and for proceedings consistent herewith.