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220 U.S. 61
STUART LINDSLEY, Appt.,
NATURAL CARBONIC GAS COMPANY, William S. Jackson, Attorney General of the State of New York, et al.
Argued January 3 and 4, 1911.
Decided March 13, 1911.
[220 U.S. 61, 62] By a bill in equity exhibited in the circuit court, the appellant, as owner and holder of capital stock and bonds of the Natural Carbonic Gas Company, sought a decree enjoining that company from obeying, and the other defendants from enforcing, a statute of the state of New York, approved May 20, 1908, entitled, 'An Act for the Protection of the Natural Mineral Springs of the State, and to Prevent Waste and Impairment of Its Natural Mineral Waters,' and containing, among others, this provision: 'Pumping, or otherwise drawing by artificial appliance, from any well made by boring or drilling into the rock, that class of mineral waters holding in solution natural mineral salts and an excess of carbonic acid gas, or pumping, or by any artificial contrivance whatsoever in any manner producing, an unnatural flow of carbonic acid gas issuing from or contained in any well made by boring or drilling into the rock, for the purpose of ex- [220 U.S. 61, 63] tracting, collecting, compressing, liquifying, or vending such gas as a commodity otherwise than in connection with the mineral water and the other mineral ingredients with which it was associated, is hereby declared to be unlawful.' Laws 1908, vol. 2, chap. 429, p. 1221
In addition to what properly may be passed without special mention, the bill alleges that the gas company owns 21 acres of lands in Saratoga Springs, New York, which contain mineral waters of the class specified in the statute; that these waters are percolating waters, not naturally flowing to or upon the surface, and can be reached and lifted to the surface only by means of pumps or other artificial appliances; that the gas company is engaged in collecting natural carbonic acid gas from these waters, and in compressing and selling the gas as a separate commodity; that this business has come to be both large and lucrative, and as a necessary incident to its successful prosecution the gas company has sunk upon its land wells of great depth, made by boring or drilling into the underlying rock, and has fitted these wells with tubing, seals, and pumps, whereby it lifts the waters and the gas contained therein to the surface; that these pumps do not exercise any force of compulsion upon waters in or under adjoining lands, but lift to the surface only such waters as flow by reason of the laws of nature into the wells, that when the waters are lifted to the surface, the excess of carbonic acid gas therein naturally escapes and is caught and compressed preparatory to its sale, none thereof being wasted, and no process being employed to increase the natural separation of the excess of gas from the waters; and that many other landowners in Saratoga Springs have like wells, which are operated in a like way, with a like purpose.
It also is alleged that the gas company bottles and sells for drinking purposes and for use by invalids and others all of the mineral waters pumped from its wells 'for [220 U.S. 61, 64] which there is any market or demand,' but there is no allegation of the extent of this market or demand, and it was conceded in argument that a large proportion of the waters pumped from the company's wells is not used, but is suffered to run to waste.
In terms the bill predicates the right to the relief sought upon the claim that the state statute deprives the appellant and others of property without due process of law, and denies to them the equal protection of the laws, and therefore is violative of the 14th Amendment to the Constitution of the United States.
In the circuit court the defendants other than the gas company demurred to the bill, the demurrers were sustained (170 Fed. 1023), and a decree dismissing the bill was entered, whereupon this appeal was prayed and allowed.
Messrs. Guthrie B. Plante, Edgar T. Brackett, Robert C. Morris, and Alton B. Parker for appellant.
[220 U.S. 61, 68] Messrs. Nash Rockwood, Charles C. Lester, and Edward R. O'Malley for appellees.
Statement by Mr. Justice Van Devanter:
[220 U.S. 61, 72] Mr. Justice Van Devanter, having made the foregoing statement, delivered the opinion of the court:
The statute against whose enforcement the suit is directed contains several restrictive provisions more or less directly connected with the purpose suggested by its title, but we are concerned with only the one before set forth, because the court of appeals of the state has pronounced [220 U.S. 61, 73] the others invalid, and counsel have treated them as thereby eliminated from the statute and from present consideration.
Coming to the provision in question, it is necessary to inquire what construction has been put upon it by the highest court of the state, for that construction must be accepted by the courts of the United States, and be regarded by them as a part of the provision when they are called upon to determine whether it violates any right secured by the Federal Constitution. Weightman v. Clark, 103 U.S. 256, 260 , 26 S. L. ed. 392, 393; Morley v. Lake Shore & M. S. R. Co. 146 U.S. 162, 166 , 36 S. L. ed. 925, 928, 13 Sup. Ct. Rep. 54; Olsen v. Smith, 195 U.S. 333, 342 , 49 S. L. ed. 224, 229, 25 Sup. Ct. Rep. 52. The court of appeals of the state had the statute before it in Hathorn v. Natural Carbonic Gas Co. 194 N. Y. 326, 23 L.R.A.(N.S.) 436, 128 Am. St. Rep. 555, 87 N. E. 504, 16 A. & E. Ann. Cas. 989, and again in People v. New York Carbonic Acid Gas Co. 196 N. Y. 421, 90 N. E. 441, and the elaborate opinions then rendered disclose that the court, having regard to the title of the act and to the doctrine of correlative rights in percolating waters which prevails in that state, as recognized in Forbell v. New York, 164 N. Y. 522, 51 L.R.A. 695, 79 Am. St. Rep. 666, 58 N. E. 644, construed this provision, not as prohibiting the specified acts absolutely or unqualifiedly, but only when the mineral waters are drawn from a source of supply not confined to the lands of the actor, but extending into or through the lands of others, and then only when the draft made upon that source of supply is unreasonable or wasteful, considering that there is a coequal right in all the surface owners to draw upon it. In other words, the court, by processes of interpretation having its approval, read into the provision an exception or qualification making it inapplicable where the waters are not drawn from a common source of supply, and also where, if they be drawn from such a source, no injury is done thereby to others having a like right to resort to it.
As so interpreted, the statute presupposes (1) the existence, in porous rock beneath the lands of several pro- [220 U.S. 61, 74] prietors, of a supply of mineral waters of the class specified; (2) a right in each proprietor to penetrate the underlying rock or natural reservoir and to draw upon the supply therein; and (3) a practice or tendency on the part of proprietors who exercise this right in the manner and for the purpose specified, that is, by boring or drilling wells into the rock and pumping or artifically drawing the waters for the purpose of collecting and vending the gas as a separate commodity, to make excessive or wasteful drafts upon the common supply, to the injury and impairment of the rights of other proprietors. And what is thus presupposed is treated in several decisions of the courts of the state and in other public papers as having actual existence and as being widely recognized. It is to prevent or avoid the injury and waste suggested that the statute was adopted. It is not the first of its type. One in principle quite like it was considered by this court in Ohio Oil Co. v. Indiana, 177 U.S. 190 , 44 L. ed. 729, 20 Sup. Ct. Rep. 576, 20 Mor. Min. Rep. 466. There oil and gas in a commingled form were contained in a stratum of porous rock underlying the lands of many owners, and because these fluids were inclined to shift about in the common reservoir in obedience to natural laws, one surface owner could not excessively or wastefully exercise his right of tapping the reservoir and drawing from its contents without injuriously affecting the like right of each of the others. The oil and gas were both of value, but as the greater value attached to the oil, some surface owners whose wells tapped the common reservoir and brought to the surface both oil and gas, collected and used only the oil, and suffered the gas to disperse in the air. This and kindred practices resulted in the adoption of a statute declaring them unlawful, and the validity of the statute was called in question. The objections urged against it were much the same as those now pressed upon our attention, but upon full consideration all were overruled. After commenting upon the peculiar attributes of oil and gas [220 U.S. 61, 75] which cause them to be excepted from the principles generally applied to minerals having a fixed situs, and also upon the prevailing rule that each surface owner in an oil and gas area has the exclusive right on his own land to seek the oil and gas in the reservoir beneath, but has no fixed or certain ownership of them until he reduces them to actual possession, this court said:
And, taking up subordinate contentions advanced in support of the principal one, the court also said:
If the statute there assailed did not work a deprivation of property without due process of law, it is difficult to perceive that there is any such deprivation in the present case. The mineral waters and carbonic acid gas exist in a commingled state in the underlying rock, and neither can be drawn out without the other. They are of value in their commingled form and also when separated, but the greater demand is for the gas alone. Influenced by this demand, some surface owners, having wells bored or drilled into the rock, engage in extensive pumping operations for the purpose of collecting the gas and vending it as a separate commodity. Uusually where this is done an undue proportion of the commingled waters and gas is taken from the common supply, and a large, if not the larger, portion of the waters from which the gas is col- [220 U.S. 61, 77] lected is permitted to run to waste. Thus these pumping operations generally result in an unreasonable and wasteful depletion of the common supply and in a corresponding injury to others equally entitled to resort to it. It is to correct this evil that the statute was adopted, and the remedy which it applies is an enforced discontinuance of the excessive and wasteful features of the pumping. It does not take from any surface owner the right to tap the underlying rock and to draw from the common supply, but, consistently with the continued existence of that right, so regulates its exercise as reasonably to conserve the interests of all who possess it. That the state, consistently with due process of law, may do this, is a necessary conclusion from the decision in the case cited. But were the question an open one, we still should solve it in the same way.
We do not overlook the statement in appellant's brief that the mineral waters reached by the gas company's wells do not exist in any underground reservoir, and do not come from any common source, but we cannot give it any effect. It is contrary to what the courts of the state apparently regard as the real situation at Saratoga Springs, and is without support in the present record. While the bill alleges that the waters are percolating waters, not naturally flowing to or upon the surface, that description of them is not inconsistent with their existence in a natural reservoir of porous rock underlying the lands of several owners. Besides, if we accepted it as true that they do not constitute a common source of supply, that is, one to which other surface owners have an equal right to resort, it then would have to be held that the gas company's acts are not within the prohibition of the statute, as construed by the court of appeals of the state, and therefore that the appellant, as owner and holder of capital stock and bonds of the company, is not harmed by the statute, and is not entitled to draw in question or test its validity. [220 U.S. 61, 78] Clark v. Kansas City, 176 U.S. 114, 118 , 44 S. L. ed. 392, 396, 20 Sup. Ct. Rep. 284; Tyler v. Registration Ct. Judges, 179 U.S. 405 , 45 L. ed. 252, 21 Sup. Ct. Rep. 206; Turpin v. Lemon, 187 U.S. 51, 60 , 47 S. L. ed. 70, 74, 23 Sup. Ct. Rep. 20; New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160 , 51 S. L. ed. 415, 422, 27 Sup. Ct. Rep. 188, 9 A. & E. Ann. Cas. 736.
Neither do we overlook the allegation in the bill that the gas company's pumps do not exert any force upon waters in or under adjoining lands, but lift to the surface only such waters 'as flow by reason of the laws of nature into the wells;' but we regard it as of little importance, because if the wells reach a common source of supply, excessive or wasteful pumping from them may affect injuriously the rights of other surface owners, although the force exerted by the pumps does not reach their lands.
Because the statute is directed against pumping from wells bored or drilled into the rock, but not against pumping from wells not penetrating the rock, and because it is directed against pumping for the purpose of collecting the gas and vending it apart from the waters, but not against pumping for other purposes, the contention is made that it is arbitrary in its classification, and consequently denies the equal protection of the laws to those whom it affects.
The rules by which this contention must be tested, as is shown by repeated decisions of this court, are these: 1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One [220 U.S. 61, 79] who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Bachtel v. Wilson, 204 U.S. 36, 41 , 51 S. L. ed. 357, 359, 27 Sup. Ct. Rep. 243; Louisville & N. R. Co. v. Melton, 218 U.S. 36 , 54 L. ed. 921, 30 Sup. Ct. Rep. 676; Ozan Lumber Co. v. Union County Nat. Bank, 207 U.S. 251, 256 , 52 S. L. ed. 195, 197, 28 Sup. Ct. Rep. 89; Munn v. Illinois, 94 U.S. 113, 132 , 24 S. L. ed. 77, 86; Henderson Bridge Co. v. Henderson, 173 U.S. 592, 615 , 43 S. L. ed. 823, 831, 19 Sup. Ct. Rep. 553.
Unfortunately, the allegations of the bill shed but little light upon the classification in question. They do not indicate that pumping from wells not penetrating the rock appreciably affects the common supply therein, or is calculated to result in injury to the rights of others, and neither do they indicate that such pumping as is done for purposes other than collecting and vending the gas apart from the waters is excessive or wasteful, or otherwise operates to impair the rights of others. In other words, for aught that appears in the bill, the classification may rest upon some substantial difference between pumping from wells penetrating the rock and pumping from those not penetrating it, and between pumping for the purpose of collecting and vending the gas apart from the waters and pumping for other purposes, and this difference may afford a reasonable basis for the classification.
In thus criticizing the bill, we do not mean that its allegations are alone to be considered, for due regard also must be had for what is within the range of common knowledge and what is otherwise plainly subject to judicial notice. Brown v. Piper, 91 U.S. 37, 43 , 23 S. L. ed. 200, 202; Brown v. Spilman, 155 U.S. 665, 670 , 39 S. L. ed. 304, 305, 15 Sup. Ct. Rep. 245; New Mexico ex rel. McLean v. Denver & R. G. R. Co. 203 U.S. 38, 51 , 51 S. L. ed. 78, 86, 27 Sup. Ct. Rep. 1; Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 111 , 52 S. L. ed. 121, 126, 28 Sup. Ct. Rep. 58. But we rest our criticism upon the fact that the bill is silent in respect of some matters which, although essential to the success of the present contention, are neither within the range of common knowledge nor otherwise plainly subject to judicial notice. So, applying the rule that one who assails the classification in such a law must carry the [220 U.S. 61, 80] burden of showing that it is arbitrary, we properly might dismiss the contention without saying more. But it may be well to mention other considerations which make for the same result.
From statements made in the briefs of counsel and in oral argument, we infer that wells not penetrating the rock reach such waters only as escape naturally therefrom through breaks or fissures; and if this be so, it well may be doubted that pumping from such wells has anything like the same effect-if, indeed, it has any-upon the common supply or upon the rights of others, as does pumping from wells which take the waters from within the rock, where they exist under great hydrostatic pressure.
As respects the discrimination made between pumping for the purpose of collecting and vending the gas apart from the waters, and pumping for other purposes, this is to be said: The greater demand for the gas alone, and the value which attaches to it in consequence of this demand, furnish a greater incentive for exercising the common right excessively and wastefully when the pumping is for the purpose prescribed than when it is for other purposes; and this suggestion becomes stronger when it is reflected that the proportion of gas in the commingled fluids as they exist in the rock is so small that to obtain a given quantity of gas involves the taking of an enormously greater quantity of water, and to satisfy appreciably the demand for the gas alone involves a great waste of the water from which it is collected. Thus, it well may be that in actual practice the pumping is not excessive or wasteful save when it is done for the purpose prescribed.
These considerations point with more or less persuasive force to a substantial difference, in point of harmful results, between pumping from wells penetrating the rock, and pumping from those not penetrating it, and between pumping for the purpose of collecting and vending the gas apart from the waters, and pumping for other purposes. [220 U.S. 61, 81] If there be such a difference, it justifies the classification, for plainly a police law may be confined to the occasion for its existence. As is said in Carroll v. Greenwich Ins. Co. 199 U.S. 401, 411 , 50 S. L. ed. 246, 250, 26 Sup. Ct. Rep. 66: 'If an evil is specially experienced in a particular branch of business, the Constitution embodies no prohibition of laws confined to the evil, or doctrinaire requirement that they should be couched in all-embracing terms.'
In conclusion upon this point, it suffices to say that the case as presented, instead of plainly disclosing that the classification is arbitrary, tends to produce the belief that it rests upon a reasonable basis.
Another objection urged against the statute arises out of a ruling of the court of appeals of the state, to the effect that, in proceedings for enforcement of the statute, one who, for the purpose of collecting and vending the gas as a separate commodity, engages in pumping such waters from wells bored or drilled into the rock, is prima facie within the prohibition of the statute, and must take the burden of showing that he comes within the exception or qualification before mentioned, whereby the statute is made inapplicable where the waters are not drawn from a common source of supply, and also where, if they be drawn from such a source, no injury is done thereby to others having a right to resort to it. Because of this ruling, which is treated as if read into the statute, it is insisted that the latter impinges upon the guaranties of due process of law and equal protection of the laws. But we think the insistence is untenable, and for these reasons:
Each state possesses the general power to prescribe the evidence which shall be received and the effect which shall be given to it in her own courts, and may exert this power by providing that proof of a particular fact, or of several taken collectively, shall be prima facie evidence of another fact. Many such exertions of this power are [220 U.S. 61, 82] shown in the legislation of the several states, and their validity, as against the present objection, has been uniformly recognized save where they have been found to be merely arbitrary mandates, or to discriminate invidiously between different persons in substantially the same situation. Bailey v. Alabama, 219 U.S. 219, 238 , 55 S. L. ed. --, 31 Sup. Ct. Rep. 145; Board of Excise v. Merchant, 103 N. Y. 143, 148, 57 Am. Rep. 705, 8 N. E. 484. The validity of such a statute was brought in question in the recent case of Mobile, J. & K. C. R. Co. v. Turnispeed, 219 U.S. 35, 43 , 55 S. L. ed. --, 31 Sup. Ct. Rep. 136, and it was there said by this court:
The statute now before us, as affected by the ruling mentioned, makes proof of certain designated facts prima facie, but not conclusive, evidence of the common source of the waters and of the injurious effect of the pumping; that is to say, it setablishes a rebuttable presumption, but neither prevents the presentation of other evidence to overcome it nor cuts off the right to make a full defense. As respects the source of the waters, the presumption appropriately may be regarded as prompted by the [220 U.S. 61, 83] fact, now well recognized, that the pervious rock in which the waters exist usually is of such extent as to reach much beyond the lands of a single proprietor and to constitute a common source of supply; and, as respects the effect of the pumping, the presumption appropriately may be regarded as prompted by the fact, before stated, that pumping from a common supply in the rock for the purpose of collecting and vending the gas as a separate commodity usually is carried on in a manner which is calculated to affect injuriously, and does so affect, the rights of others to take from that supply. Regarding the presumption as prompted by these considerations, as we think should be done, it cannot be said that there is not a rational connection between the designated facts which must be proved and the facts which are to be presumed therefrom until the contrary is shown. What we have said upon the subject of classification sufficiently answers the suggestion or claim that, by reason of the presumption, the statute discriminates invidiously between different persons in substantially the same situation.
For these reasons none of the objections urged against the statute can be sustained, and so the decree dismissing the bill is affirmed.