Recognizing the shared ownership of subsurface resource pools. (2024)

For example, in Manufacturers' Gas & Oil Co. v. IndianaNatural Gas & Oil Co., suppliers and end users of natural gaswithdrawn from a large reservoir sought to enjoin the Indiana NaturalGas & Oil from "using devices for pumping, and from employingany other artificial process or appliance for the purpose, or having theeffect of, increasing the natural flow of gas" flowing out of thereservoir through its many wells. (76) Before this case, there was someindication such an action would not be recognized in Indiana. (77) Thetrial court dismissed the action and the court of appeals affirmed. (78)The Indiana Supreme Court reversed and held unreasonable exploitation isactionable:

 Natural gas is a fluid mineral substance, subterraneous in its origin and location. ... [T]here are reasons why the right to protect it from entire destruction while in the ground should be exercised by the owners of the land who are interested in the common reservoir. ... [T]his right ought to reside somewhere, and we are of the opinion that it is held, and may be exercised, by the owners of the land, as well as by the state. Natural gas in the ground is so far the subject of property rights in the owners of the superincumbent lands, that while each of them has the right to bore or mine for it on his own land, and to use such portion of it as, when left to the natural laws of flowage, may rise in the wells of such owner and into his pipes, no one of the owners of such lands has the right, without the consent of all the other owners, to induce an unnatural flow into or through his own wells, or to do any act with reference to the common reservoir, and the body of gas therein, injurious to, or calculated to destroy, it. In the case of lakes or flowing streams, it cannot be said that any particular part or quantity or proportion of the water in them belongs to any particular land or riparian owner; each having an equal right to take what reasonable quantity he will for his own use. But the limitation is upon the manner of taking. So, in the case of natural gas, the manner of taking must be reasonable, and not injurious to or destructive of the common source from which the gas is drawn. ... [O]ne common owner of the gas in the common reservoir cannot devest all the others of their rights without wrongdoing. ... [T]he common owners of the gas in the common reservoir, separately or together, have the right to enjoin any and all acts of another owner which will materially injure, or which will involve the destruction of, the property in the common fund, or supply of gas. ... There is something in the nature of unity in their possession of the gas in the reservoir. ... The facts stated in the complaint constitute a cause of action. ... (79)

The Indiana Supreme Court's recognition of a cause of actionfor unreasonable exploitation was grounded in its observation that thesurface owners have a "unity in their possession of the gas in thereservoir" because of the migratory nature of subsurface naturalgas. (80) Because the cause of action focused on the "manner oftaking," it addressed activities that were not hidden (and that didnot, for that reason, escape judicial scrutiny), and a court couldassess the reasonableness of their impact on the shared resource. (81)

In Forbell v. City of New York, New York City had installed a waterpumping plant that it knew would drain a significant amount of waterfrom under areas outside the city. (82) The New York Court of Appealsheld this unreasonable exploitation of the subsurface water actionable:

 In the cases in which the lawfulness of interference with percolating waters has been upheld, either the reasonableness of the acts resulting in the interference, or the unreasonableness of imposing an unnecessary restriction upon the owner's dominion of his own land, has been recognized. In the absence of contract or enactment, whatever it is reasonable for the owner to do with his subsurface water, regard being had to the definite rights of others, he may do. He may make the most of it that he reasonably can. It is not unreasonable, so far as it is now apparent to us, that he should dig wells and take therefrom all the water that he needs in order to the fullest enjoyment and usefulness of his land as land, either for purposes of pleasure, abode, productiveness of soil, trade, manufacture, or for whatever else the land as land may serve. He may consume it, but must not discharge it to the injury of others. But to fit it up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored in the plaintiff's land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff and the others whose lands are thus clandestinely sapped, and their value impaired. (83)

The New York Court of Appeals extended the holding in Forbell to afactually similar case in which the purpose of the pumping was towithdraw and market natural gas with the ancillary effect of alsowithdrawing and wasting unreasonably large quantities of water. (84)

While the common law cause of action for unreasonable exploitationof subsurface water is widely accepted, a pair of decisions fromPennsylvania and one from Ohio obscure the existence of the cause ofaction for unreasonable exploitation of oil and gas. (85) In Kelly v.Ohio, decided in 1897, the Ohio Supreme Court explicitly rejected causesof action for unreasonable exploitation of oil:

 To drill an oil well near the line of one's land cannot interfere with the legal rights of the owner of the adjoining lands, so long as all operations are confined to the lands upon which the well is drilled. Whatever gets into the well belongs to the owner of the well, no matter where it came from. In such cases the well and its contents belong to the owner or lessee of the land, and no one can tell to a certainty from whence the oil, gas, or water which enters the well came, and no legal right as to the same can be established or enforced by an adjoining landowner. The right to drill and produce oil on one's own land is absolute, and cannot be supervised or controlled by a court or an adjoining landowner. ... [I]t is intolerable that the owner of real property, before making improvements on his own lands, should be compelled to submit to what his neighbor or a court of equity might regard as a reasonable use of his property. (86)

This was consistent with the Ohio Supreme Court's unequivocalstatement in a water case, Frazier v. Brown, in 1861 that "thereare no correlative rights existing between the proprietors of adjoininglands." (87) But the court overruled Frazier "and all itsprogeny" in Cline v. American Aggregates Corp. after nearly acentury. (88) Accordingly, Kelly v. Ohio Oil Co. may no longer be goodlaw in Ohio as it is among the progeny of Frazier's rejection of"correlative rights existing between the proprietors of adjoininglands." (89)

In Jones v. Forest Oil Co. and Barnard v. Monongahela Natural GasCo. the Pennsylvania Supreme Court issued per curiam affirmances ofcourt of common pleas decisions rejecting challenges to unreasonableexploitation of oil and gas. (90)

In Jones v. Forest Oil Co., a landowner operating six oil wellssought and initially obtained an injunction against the use of a gaspump by Forest Oil at a well on the adjoining tract. (91) When ForestOil began using the gas pump, production from three of thelandowner's wells was reduced. (92) After the issuance of theinitial injunction against the use of the gas pump, the production inthe three wells increased to its former levels. (93) At the conclusionof a trial, the court of common pleas found that gas pumps are typicallyemployed in "failing and almost exhausted territory," that"its use by one operator necessitates its use by others in theimmediate neighborhood if they desire to prevent the daily production oftheir wells from being decreased," and that "if pumps areplaced on all wells the production of the wells is neither increased nordiminished." (94) As to the circ*mstances of the field at issue inthe case, the court of common pleas found that "gas pumps were inuse" in the field by others for more than one year before theForest Oil installed its gas pump and "that the production of thewells" in the field had "largely decreased" and was atthe time "almost exhausted." (95)

In determining whether to issue a permanent injunction, the courtof common pleas questioned "to what extent an owner of oil wellsmay use mechanical devices for bringing oil to the surface. In operatinghis own wells may he use appliances which diminish the production of hisneighbor's wells?" (96) The court of common pleas concludedthat "the use of a gas pump by [Forest Oil] under the circ*mstancesof th[e] case [was] not an unlawful act that should be restrained byinjunction" and accordingly dismissed the bill and dissolved theinitially issued injunction. (97) The Pennsylvania Supreme Courtaffirmed per curiam. (98)

Despite the ultimate outcome, the decision of the court of commonpleas suggests recognition of a cause of action for unreasonableexploitation. Not only did the case go to trial, the court issued apreliminary injunction against the use of the gas pump. Thecirc*mstances of the case referred to by the court are evidently thefact that the field depleted to a point such that it was reasonable forall owners to employ a gas pump. The case does not hold that using a gaspump or other methods of increasing the flow of gas in wells is alwaysprivileged and not subject to a requirement of reasonableness. Even ifit did, as some suggest or imply, (99) its precedential and persuasivevalue for such a proposition is limited.

In Barnard v. Monongahela Natural Gas Co., Daniel and ElizabethBarnard leased sixty-six acres to Monongahela Natural Gas for oil andgas production. (100) James Barnard leased an adjoining 156-acre parcelto Monongahela for the same purpose. Under the terms of the leases, eachlessor would be paid royalties on gas and oil produced only from wellson the lessor's land. Daniel and Elizabeth Barnard protested asMonongahela Natural Gas first drilled a paying well on JamesBernard's land only fifty-five feet from a right angle boundarybetween the parcels. In this location, the well would draw approximatelythree-fourths of the gas it produced from beneath Daniel and ElizabethBarnard's land while James would receive one hundred percent of theroyalties. The company next drilled a well 1,350 feet away from thefirst well on Daniel and Elizabeth Barnard's parcel that failed toproduce gas. Daniel and Elizabeth Barnard sued Monongahela Natural Gasfor the unreasonable location of the first well. After fact finding, thecourt of common pleas purported only "to follow the lead of thedecisions, not to qualify, explain, modify, overrule or reversethem," but it issued a sweeping decision:

 If ... the landowner drills on his own land at such a spot as best subserves his purposes what is the standing of the adjoining landowner whose oil or gas may be drained by this well? He certainly ought not to be allowed to stop his neighbor from developing his own farm. There is no certain way of ascertaining how much of the oil and gas that comes out of the well was when in situ under this farm and how much under that. What then has been held to be the law?--it is this, as we understand it, every landowner or his lessee may locate his wells wherever he pleases regardless of the interests of others. He may distribute them over the whole farm or locate them only on one part of it. He may crowd the adjoining farms so as to enable him to draw the oil and gas from them. What then can the neighbor do? Nothing, only go and do likewise. He must protect his own oil and gas. He knows it is wild and will run away if it finds an opening and it is his business to keep it at home. This may not be the best rule, but neither the legislature nor our highest court has given us any better. No doubt many thousands of dollars have been expended "in protecting lines" in oil and gas territory that would not have been expended if some rule had existed by which it could have been avoided. Injunction certainly is not the remedy. If so, just how far must the landowner be from the line of his neighbor to avoid the blow of "this strong arm of the law"? (101)

The Pennsylvania Supreme Court affirmed per curiam. (102)

The Barnard v. Monongahela Natural Gas Co. decision by the court ofcommon pleas is arguably without foundation. First, the court did notbelieve courts are incapable of judicial resolution of the dispute,indeed the court seemed to plead with the Pennsylvania Supreme Court toreverse. (103) The court noted its incapacity to "ascertain[] howmuch of the oil and gas that comes out of the well was when in situunder this farm and how much under that," but this was unnecessaryto the injunctive remedy sought in the case. (104) And thereasonableness of the location does not depend on the actual proportionsof drained oil and gas that enter the well, but rather it is a matter ofwhether the location itself has been unreasonably chosen under thecirc*mstances of each case. In the case before the court, the locationwas not merely close to a boundary line, it was tucked into a corner ofa parcel such that three fourths of the oil entering the well wouldpresumably draw from outside the property boundary. (105) Theunreasonableness was further compounded by the fact that the lessee heldoil and gas rights to both of the parcels and therefore had no incentiveto locate an offset well immediately on the other side of the boundary.Thus Daniel and Elizabeth Barnard could not "protect [their] ownoil and gas" by "go[ing] and do[ing] likewise" as thecourt admonished them to. (106) The court's concluding rhetoricalquestion, "just how far must the landowner be from the line of hisneighbor," is easily answered. (107) The landowner must firstattempt to enter into an agreement with the neighbor as to the locationof the well. If the neighbor refuses to agree, the landowner must choosea reasonable location under the circ*mstances with the knowledge that anunreasonable location is actionable. This is hardly an unfortunateposition for the landowner. If it were, the law of nuisance is always ahardship on those who must each and every day ask themselves just howlittle nuisance they may cause neighbors "to avoid the blow of'this strong arm of the law.'" (108)

There is no cause of action for unreasonable exploitation ofsubsurface water in Texas, but there may be a cause of action forunreasonable exploitation of oil and gas. The Texas Supreme Courtexplicitly rejected the cause of action for unreasonable exploitation ofwater in Sipriano v. Great Spring Waters of America Inc. in 1999. (109)As for oil and gas, the Texas Supreme Court stated in dicta in a 1935case that

 [t]he common law recognizes no well spacing regulations. At common law the landowner can drill an unlimited number of wells for oil and gas upon his land.... The adjoining landowner cannot complain if wells are drilled near his boundary line. Under this rule the only way the landowner can protect himself is to drill offset wells. (110)

But there are no cases fitting this description in Texas, and it isundermined by language in Elliff v. Texon Drilling Co. in 1948. (111)More recently, the court rejected a cause of action for the unreasonableuse of horizontal slickwater fracturing in Coastal Oil & Gas v.Garza Energy Trust. The court did not explicitly examine thereasonableness of the use of horizontal slickwater fracturing, but itemphasized "hydraulic fracturing is not optional; it is essentialto the recovery of oil and gas in many areas, including the Vicksburg Tformation in this case. " (112) The necessity of the use of themethod of exploitation is irrelevant if there is no requirement ofreasonable exploitation.

The status of unreasonable exploitation is also unclear under thecivil law system of Louisiana. The Supreme Court of Louisiana hasaffirmed the right to use a pump, but in doing so observed, "Allthe operators in the oil field in question, including defendant, areusing pumps; what good ground, then, could [one] have for denying [aneighbor] the right to do that same thing?" (113) Perhaps theresult would be different under the facts pled in Jones v. Forest OilCo. The necessity of pumping in the particular field may be central tothe case, as the court curiously stated at the outset that even thoughthe complaint "does not allege that the underlying oil cannot bebrought to the surface otherwise than by pumping," this fact"is impliedly contained in the allegation which is made that everyoperator in that oil field is using a pump." (114) There would beno need for drawing this implication if it were not relevant.

In our judgment, the door remains open for unreasonableexploitation of oil and gas suits in Ohio, Texas, and Louisiana. Thepotential for such an action in Pennsylvania is limited by Jones v.Forest Oil Co. and Barnard v. Monongahela Natural Gas Co., but as theseare per curiam affirmances with little precedential effect, the questionof the whether one surface owner can sue another surface owner forunreasonable exploitation of oil and gas is still open. (115)

II. Understanding the Law of Subsurface Resource Pools Through theShared Property Paradigm

As we saw in Part I, because of the migratory character ofsubsurface resources, the common law recognized actions for maliciousinterference, waste, and unreasonable exploitation. In this Part, weargue that these actions embody the shared property paradigm. We havealso seen that common law courts, by invoking the doctrine of damnumabsque injuria, limited the right of one surface owner to recover fromanother surface owner for underground, and therefore unseen,interferences with the resource pools underneath their property.Although this limited the right of each surface owner to an accountingfrom other surface owners, and thus differs from the shared propertyparadigm applicable to surface owners--such as timber owned by tenantsin common we argue that this deviation from the shared property paradigmwas attributed solely to the uncertainty created by the hidden nature ofthe subsurface resource pools.

Accordingly, we argue that the common law's framework foraddressing problems caused by subsurface resource pools is a coherentapplication of the shared property paradigm, taking into account thehidden nature of the resource. In other words, we argue that common lawjudges based subsurface resource pool decisions on a theory of sharedproperty. But most scholarly discussions of these cases have failed tograsp this. As such, the conventional views of the common law ofsubsurface property rights are deficient because they focus on eitherindividual or common ownership features of subsurface resource pools andfail to appreciate the actual theory that common law courtsfollowed--the shared property paradigm.

Our analysis rests on a theory that property is a socialinstitution in which ownership and use rights take various forms fordifferent resources. Property law addresses a basic and unavoidablesocial issue: Who ought to make decisions about resources and how oughtthose decisions be made? In an important sense, all resources are sharedbecause they are the common inheritance of humankind. But society hasfound it convenient to break resources into various packages and toassign decision-making responsibility over those packages to differentindividuals. Sometimes the packages are assigned to individuals asprivate property, sometimes to the public as commons property, andsometimes to a group of individuals, as in the case of underground oil,gas, and water, as shared property. Each of these forms of propertyreflects a different paradigm about who makes decisions about resourcesand how they are made. The paradigms are not unrelated--the commonsproperty paradigm, the private property paradigm, and the sharedownership paradigm are applications of a single and unified theory ofproperty law. (116) It is a functional theory because it posits that thefunction of law is to coordinate between the interests of free and equalpeople in order to address conflicts between them. Under this view, lawshould not be understood by the principles or rules or concepts that wenormally think of as law but by the methods of analysis the law uses toaddress social problems.

Under the commons property paradigm, we assign dominion over aresource to the public, allowing members of the public to makeindividual decisions about how the resource is to be used, butdisallowing any exclusive dominion over the commons itself. Under thisparadigm, exclusion from the commons is not allowed, while consumptionor appropriation of the fruits of the commons is allowed. The commons isnot "owned" by individuals in the traditional sense, andindividuals have no right to exclude others, but the fruits of thecommons may be appropriated, and thereafter owned by, individuals. Anocean is a commons; the fish in the ocean are commons property untilcaptured. A meadow can be commons property, freely available to alluntil the grass in the meadow is consumed. A highway is commonsproperty, free to be used by all, where consumption is determined by therules of the road, and particularly by the obligation to be reasonable.Assigning property to the commons works only if society has somemechanism to insure that individual consumption and appropriationdecisions do not decrease the long-term value of the resource. Without amechanism for coordinating the use of the commons, individual decisionswill result in overuse and eventual depletion of the common--thefamiliar "tragedy of the commons." In the United States, thecoordinating mechanism is sovereign authority over commons resources.Thus, commons resources are subject to the absolute control of stategovernments, and this sovereign authority over the commons is notlimited by the Due Process Clause of the Fourteenth Amendment. (117)

Under the private property paradigm, we assign dominion over partsof the earth's resources to private individuals, allow eachindividual to be the decision maker, and then coordinate the individualdecisions in several ways: private agreement, private law, publicregulation, eminent domain, and, most importantly, through the market.In this paradigm the right to exclude is crucial--as Professor Merrilloften reminds us because the right to exclude is what makes privatearrangements and the market work. (118) Assigning dominion to privateowners works only if society has available strong mechanisms ofcoordination. Without those coordinating mechanisms we run into thetragedy of the anticommons: separate and uncoordinated decisionsresulting in underutilization and waste. Accordingly, when we allowprivate owners to make decisions, we subject them to the coordinatingmechanisms of, for example, nuisance law and eminent domain. Oneowner's use decisions must, under nuisance law, reasonably accountfor the use decisions of her neighbors. If society wants to build arailroad, private decisions will not get the job done, so we give thegovernment the power of eminent domain in order to coordinate decisionsacross individual owners. (119) Private decision making subject tosocial coordination emphasizes that in some larger sense all resourcesare shared.

Under the shared property paradigm, we assign dominion over partsof the earth's resources to more than one owner but require theseveral owners to coordinate fairly their use of the resource as acondition of its exploitation. In the case of subsurface resource pools,dominion over the resource is assigned in proportion to the resourceunderlying the surface boundaries (thus recognizing the ad coelom aspectof surface ownership). But exploitation of each portion of the resourcerequires that the rights of each surface owner be treated equally, giveneach owner's percentage interest in the pool, and this requiresthat decisions about exploiting the resource must take into account theproportionate interests of each of the owners. In effect, this meansthat sharing owners must act as single unit with respect to theexploitation of the pool while their benefits from that exploitation aredivided into their proportionate shares.

Underground resource pools fit the paradigm of shared property nota paradigm of commons property or private property. Given the highlyinterdependent nature of the decisions of surface owners, each has theright to exploit the resource pool, subject to the proportional andequal right of other surface owners to do the same. Equal rights toexploitation mean that the rights are shared, much like tenants incommon. But unlike tenants in common, each owner does not have an equalright to the whole of the pool but an equal right to the owner'sproportional share in the value of the whole pool the share lying belowthe owner's land. Not only is this shared property paradigm theappropriate paradigm for addressing common pool resources, it is theparadigm that, by and large, common law courts intuitionally followed,even though theorists, having only the private and commons propertyparadigms to guide them, mischaracterized what courts were doing.

A. Conventional Views Apply Private and Commons Paradigms

The commons property and private property paradigms do notaccurately address the social problems raised by underground resourcepools, nor is either consistent with how common law courts actuallyaddressed problems caused by subsurface resource pools. Yet thoseparadigms inform the different conventional views of the common law ofsubsurface resource pools. The ferae naturae view suggests thatsubsurface pooled resources are commons property, while the ad coelumview treats subsurface pooled resources as private property. Theanalytical limits of the commons and private property paradigms are notwithout consequence. The few courts that strictly follow either of theseparadigms have reached highly problematic results.

1. The Ferae Naturae View and Commons Property

The conventional ferae naturae view of the common law of subsurfaceresource pools is that the resources are commons property. Proponents ofthis view claim as a historical matter that courts established the ruleof capture for subsurface resource pools because the migratory characterof the resource made them analogous to wild animals. (120) But as PartI.B demonstrates, this is historically inaccurate because thenonliability for drainage is grounded in the hidden character ofsubsurface resource pools, not on its migratory character. In thisSection, we carry our analysis further by demonstrating that theownership of subsurface resource pools is not "determined in thesame manner" as wild animals at all because subsurface resourcepools are not commons property. (121)

Subsurface resource pools are not commons property because theright to exploit the pool is available only to the surface owners ratherthan any member of the public. The court in Manufacturer's'Gas & Oil Co. v. Indiana Natural Gas & Oil Co. explains:

 Natural gas, being confined within limited territorial areas, and being accessible only by means of wells or openings upon the lands underneath which it exists, is not the subject of public rights in the same sense or to the same extent as animals ferae naturae and the like are said to be. Without the consent; of the owner of the land, the public cannot appropriate it, use it, or enjoy any benefit whatever from it. This power of the owner of the land to exclude the public from its use and enjoyment plainly distinguishes it. from all other things with which it has been compared, in the use, enjoyment, and control of which the public has the right to participate, and tends to impress upon it, even when in the ground in its natural state (at least., in a qualified degree), one of the characteristics or attributes of private Property. In the case of animals ferae naturae, fish, and the like, this public interest is said to be represented by the sovereign or state. So, in the case of navigable rivers and public highways, the state, in behalf of the public, has the right to protect them from injury, misuse, or destruction. (122)

If subsurface resource pools were commons property until capturedand any member of the public could tap the pools, this would create apotential for a tragedy of the commons, and accordingly it would benecessary for the state to exert sovereign authority over subsurfaceresource pools. Fortunately, the Supreme Court recognized early on thatsubsurface resource pools are not commons property for constitutionalpurpose. (123)

The implicit nationalization of oil and gas reserves is not theonly erroneous analytical consequence that comes from applying thecommons property paradigm to subsurface resource pools. Following theconventional ferae naturae view of commons property leads to theerroneous and now overruled result in Hammonds v. Central KentuckyNatural Gas Co., which held that reinjected oil and gas returns werecommons property. (124)

2. The Ad Coelum View and Private Property

As counterpoint to the ferae naturae and commons property view ofsubsurface resource pools, the conventional ad coelum view suggests thatthe resources are private property. Proponents of this view believe, asa historical matter, that courts were suggesting that because subsurfaceresource pools are "the absolute property of the owner of thefreehold," a land owner "is free to withdraw" theresources "at will" and "do with" them as thelandowner "pleases regardless of the effect upon hisneighbors." (125) Such a view is historically inaccurate on twocounts. First, as we demonstrated in Part I.B, the common law neverprivileged exploitation of subsurface resource pools, contrary to acentral tenant of ad coelum theory. Second, as we demonstrated in PartI.C, even though injuries to subsurface resource pools were generallyconsidered to be damnum absque injuria, courts recognized actions formalicious interference, waste, and unreasonable exploitation. In fact,courts did not hold that subsurface resource pools were individually anddistinctly owned by surface owners.

If subsurface resource pools are the individuated private propertyof the surface owners, as the ad coelum view suggests, then it must beconceded that each individual surface owner loses ownership of water,oil, and gas once it migrates across the property line. Otherwise, iftitle were retained, one landowner could sue another for conversion ofprivate property by causing drainage of subsurface resources. But evenif one owner loses title once resources cross the boundary, courts havenot held that one neighbor is immune from a suit for nuisance forcausing a diminishment of the value of the landowner's freehold.The Oklahoma Supreme Court explains:

 [If] the landowner "owns" that elusive and unstable substance, percolating water, beneath his laud, it must likewise be true that the adjacent landowner is given the same with respect to that which underlies his land. If one owner invades the natural movement, placement, and percolation of such water by creating artificial suction with powerful motor driven pumps, it is not long until he is taking that. water which was but a moment before "owned" by his neighboring landowner. We do not say that this is forbidden, so long as the taking is reasonable; but we do say that it exposes the futility of attempting to justify the complete exhaustion of a common supply of water on the ground that the landowner who has taken it all "owned" that part thereof underlying his land when the operations commenced. His neighbor likewise had all ownership. (126)

Recognition of the surface owner's absolute dominion over thesubsurface resource pool beneath the freehold does not resolve thequestion of whether the surface owner has actionably exercised thatdominion. Absolute ownership of private property has always been limitedby the obligation of sic utero ut alienum laedas. The ad coelum view ofsubsurface resource pools as individuated private property requires notonly recognition of a theory of title-loss trot also a theory ofnuisance immunity as well. The private property paradigm justifiesneither modification, and it is therefore not the paradigm that thecommon law applied to subsurface resource pools.

A prime example of mistaken doctrine that can be attributed to theapplication of the private property paradigm of the ad coelum view isthat some states have wrongfully denied a cause of action when oneneighbor extracts subsurface water that threatens subsidence ofneighboring land. In Finley v. Teeter Stone, Inc., the Maryland SupremeCourt held that the extraction of subsurface water that threatens tocause subsidence of neighboring land is not actionable, (127) a positionthen adopted by the Restatement and several other cases. (128)

This result is not dictated by Acton because Acton did not holdthat a neighbor is privileged to pump subsurface water no matter whatthe injury to the neighbor; Acton dealt only with the diversion ofwater. A Texas Supreme Court justice, in a dissenting opinion, aptlynoted the error:

 The court has decided this cause upon the mistaken belief that the case is governed by the ownership of ground water. Plaintiffs assert no ownerships to the percolating waters pumped and extracted from the ground by defendants. They make no complaint that their own wells have been or will be pumped dry. They seek no damages for the defendants' sale of the water. Plaintiffs' action calls for no change in nor even a review of the English rule of "absolute ownership" of ground water, the American rule of "reasonable use" of ground water, nor the Texas rule of "nonwasteful" use of ground water. They claim no correlative rights in the water. The Texas law of percolating waters is not put in issue by this suit .... Plaintiffs' complaint is that defendants are causing subsidence of their land. They assert an absolute right to keep the surface of their land at its natural horizon. The landowners' right to the subjacent support for their land is the only right in suit .... It is no more logical to say that this is a case concerning the right to ground water than it would be correct in a case in which an adjoining landowner removed lateral support by a caterpillar to say that the case would be governed by the law of caterpillars. In making this decision about one's right to subjacent support, I would use as analogies other kinds of cases concerning support, such as the right to lateral support. A landowner's right to lateral support for his land is an absolute right. The instrument employed in causing land to slough off, cave in or wash away is not the real subject of inquiry. The inquiry is whether the adjoining owner actually causes the loss of support. Whether the support is destroyed by excavation, ditching, the flowing of water, the pumping of water, unnatural pressure, unnatural suction, or explosives, the right to support is the same, and it is an absolute right. (129)

Courts in other states agree that subsidence injury is not damnumabsque injuria when caused by the withdrawal of subsurface water. (130)

3. Why the Old Shoes Do Not Fit

As we showed in Part I, the conventional views do not accuratelydescribe the legal doctrine developed by judges in the common law ofsubsurface resources. We believe that these errors resulted fromattempts to explain the legal relationship between surface ownersaccording to familiar paradigms. Although we hesitate to point fingersmore than we already have, and are conscious that many scholars simplyrepeated the conventional wisdom, the academic literature on therelevant legal relationships is replete with inappropriategeneralizations about cases that dealt with narrow, specialized issues.Nonetheless, it is important to point out the cases that areinapplicable to the legal relationship of surface owners. Commentatorshave inappropriately relied upon cases resolving disputes betweencompeting claims to development rights in the same parcel; (131) casesdetermining whether extraction of oil and gas by trustees, life estateholders, and general lessees amounts to waste of the estate; (132) andcases determining tax liabilities. (133)

Cases in which courts interpreted lease rights in disputes betweenindividuals who claimed development rights in the same parcels representthe most frequently cited inapplicable decisions. Resolving thesedisputes, courts took various views on the issue of title to theresources in the ground and used the concept of title. (134) But thesedecisions simply do not tell us anything useful about the rights ofsurface owners against each other. Cases that determined the developmentrights of surface owners decided issues that are distinct from questionsabout the alienability of whatever these rights are. Any discussion ofissues surrounding the sale or lease of oil and gas rights is separatefrom issues about the nature of property rights with respect toneighbors. The Texas Supreme Court observed in an early case that thequestions posed in these two classes of cases are distinct:

 The general question of whether one landowner is entitled to damages for oil or water drawn from his land by a well sunk by an adjoining landowner Oil his own land is very different from the question of whether the owner of a part. of a tract of land from which prior to his acquisition of title a third person had acquired from the former owner the exclusive right to take oil therefrom is entitled to his proportionate share of the oil so taken. (135)

The court not only noticed the distinction, it explicitly statedthat the decisions regarding the questions in the neighbor dispute casesare not "controlling upon the question presented" in lease andsale dispute cases. (136) The doctrines and decisions that resolve themyriad of disputes over the authority to exploit a particular parcel donot apply to disputes between neighbors just as the law governingdisputes over the ownership of horses do not apply to the determinationof all owner's liability for damage caused by the owner'shorse. The cases may share subject matter and language, lint no more.

B. Subsurface Resource Pools Are Shared Property and Surface OwnersAre Tenants in Common Without Accounting Rights

Properly understood, common law decisions recognize the sharedownership of subsurface resource pools, just as with surface resourcepools, because of the migratory character of the resources.

1. Common Law Coordinates More Decision Making Among Shared Ownersthan Decision Making Among Neighbors

There is an important and evident distinction in the role of thecommon law in decisional coordination among individual owners and amongindividuals whose unity of interest in a common resource both justifiesand requires greater legal oversight. The scope of common law decisionalcoordination between neighboring individual owners is less than betweenthose who share ownership of resources.

The greater coordination between shared owners can be found both inthe regulation of property whose current ownership is divided amongseveral individuals and in the regulation of property whose ownership isdivided over time, such as the relationship between a lessor and alessee or a life tenant and a remainderman. (137) The waste action isrecognized as between co-owners and as between present and futureinterest holders, but almost never recognized between neighbors. (138)

If the private ownership of neighboring parcels is individuated,there is no inherent unity of interest in decision making; societyrecognizes individual ownership precisely because it wants anowner's decisions to reflect her individual preferences. Neighborsexercise a vast array of decisional authority without affecting oneanother in a legally cognizable way. Also, neighbors make a vast numberof decisions that strongly affect other neighbors, but the decisions arefewer and their effect is dissipated in the surrounding community.Neighbors have common interests, but these are diffused into anill-defined class of individuals. And, as the academic literature as oflate constantly reminds us, the desires of the community are a diversethicket, not a one-dimensional set of either positive or negativecontributions to the local value of property. (139) Thus, there is noimmediate, tangible, and limited unity of interest that both impels andjustifies judicial coordination. Rather, the effect of decision makingby individuated property owners is left to legislative and privategovernance.

Moreover, when resources are individually owned, the law relies onthe market to coordinate land use decisions. An individual owner whoseland use decisions upset neighbors generally also upsets theproperty's potential buyers. As a result, the cost of that decisionis often internalized to the person who makes the decision. As long asthe cost is internalized, the market will coordinate land use decisionsby discouraging decisions the community (through the market) does notvalue and rewarding decisions the community (through the market) doesvalue.

Because of these factors, many activities of individual owners thathave the knowing effect of injuring a neighbor's quiet enjoyment ofproperty are not actionable. Thus, the owners of the Eden Roc Hotel hadno recourse when the neighboring Fontainebleau Hotel erected aresidential tower that cast a shadow over the Eden Roc's pool atmidafternoon. (140) Nuisance law itself provides no cause of action forinterferences that are judged to be nonsignificant. By contrast, thecommon law applies a higher standard of conduct for dealing with oneanother when there is shared ownership. The unity of interest makes thejudicial supervision of conduct to prohibit acts solely motivated by illwill appropriate.

The common law regulation of shared rather than individuatedownership is more than simply a prohibition of intrinsically wrongfulconduct from a golden rule perspective. Instead, the Common lawregulation of shared ownership regulates decisions that are wrongfulonly because they are opposed to the unity of interest inherent inshared ownership. The failure to improve one's neighborhood bypurchasing a high quality mailbox may be, for the sake of demonstration,contrary to the communal interest of individual owners, but it would notbe actionable at common law on that ground alone because there is noadditional element of wrongdoing. But a co-owner who leases commonlyowned property for far below market value may create actionable wastebecause it is contrary to the united interest of the common owners inderiving value from the property, not because suboptimal leasing is initself wrongdoing.

2. Surface Owners Share Ownership of Subsurface Resource PoolsBecause the Resources are Migratory

The common law recognition of the causes of action for maliciousinterference, waste, and unreasonable exploitation coordinates decisionmaking among surface owners not simply as neighbors but as individualswhose unity of interest in a commonly owned resource justifies andrequires judicial oversight.

The coordination problem inherent in subsurface resource poolsarises because the decisions of surface owners (or their licensees) areso interdependent that it is not possible for society to rely onindependent and loosely coordinated decisions, as is true forindividually owned property. Each surface owner's decisions aboutwhere and how to extract resources have a potentially immediate anddirect impact on the well-being of other surface owners through theirability to extract wealth from the subsurface resource pool. Likeco-owners of property, each surface owner has an interest in the poolthat cannot be easily separated from the interests of other surfaceowners. Accordingly, courts have recognized that because subsurfaceresource pools are migratory decisions about the use of the resource areinterdependent, and courts have thus required that exploitationdecisions have a reasonable basis.

According to the shared property paradigm, the surface owners ownsubsurface resource pools much like the ownership of tenants in common.(141) Indeed, this proposition is explicitly stated in early cases. TheKentucky Court of Appeals in Louisville Gas Co. v. Kentucky Heating Co.gives perhaps the best exposition of the nature of a surfaceowner's rights in subsurface resource pools and the judiciallyenforceable obligations surface owners have among one another:

 The right of the surface owners to take gas from subjacent fields or reservoirs is a right in common. There is no property in the gas until it is taken. Before it is taken it is fugitive in its nature, and belongs in common to the owners of the surface. The right of the owners to take it is without stint; the only limitation being that it must be taken for a lawful purpose and in a reasonable manner. Each tenant in common is restricted to a reasonable use of this right, and each is entitled to the natural flow of the gas from the subjacent fields, and any unlawful exercise of this right, by any tenant in common, which results in injury to the natural right of any other tenant or surface owner, is an actionable wrong. (142)

Similarly, in Manufacturers' Gas & Oil Co. v. IndianaNatural Gas & Oil Co., the Indiana Supreme Court refers to commonownership of a common reservoir, not tenancy in common, but it isequally clear that the ownership of subsurface resource pools is shared:

 The final conclusion of the court is that one common owner of the gas in the common reservoir cannot devest all the others of their rights, without wrongdoing. The acts of 1891 and 1893 are an express recognition by the legislature of the qualified ownership of the common owners in the gas in the common reservoir, and any act. therein forbidden may be, according to the circ*mstances, the subject of a suit at law or a proceeding in equity by the person injured, as well as the foundation of a public prosecution. Independently, however, of any statute, for the reason already stated, the common owners of the gas in the common reservoir, separately or together, have the right to enjoin any and all acts of another owner which will materially injure, or which will involve the destruction of, the property in the common fund, or supply of gas. (143)

Other courts and commentators have found another way to expressshared ownership using the framework of correlative rights. (144) TheFlorida Supreme Court explains:

 Property owned by one party may be so situated and conditioned with reference to the property of another as that the rights of ownership and the uses of such properties are interdependent or correlative. In such cases each owner should so reasonably use his property as not to injure the property rights of others. The property rights relative to the passage of waters that naturally percolate through the land of one owner to and through the land of another owner are correlative; and each landowner is restricted to a reasonable use of his property as it affects subsurface waters passing to or from the land of another. (145)

The correlative rights concept unnecessarily and misleadinglyduplicates the concept of shared rights. Tenants in common andconcurrent and future interest holders have the same correlative rightsas surface owners over a common pool. Using terms like correlativerights unnecessarily diffuses the common law and makes the law in onearea appear to be different from the law in another area, obfuscatingthe unity of the law. Advocates and judges who evaluate disputes betweensurface owners over exploitation decisions ought to understand that therights are akin to rights of tenants in common and present and futureinterest holders, so that they do not unnecessarily limit the scope oftheir research and consideration.

3. Rights of Shared Owners of Subsurface Resource Pools Are Limited(Not Eliminated) Because the Resources Are Hidden

Courts have recognized nearly the full panoply of causes of actionavailable between shared owners of property that are not generallyavailable between neighbors: malicious interference, waste, andunreasonable use. The only stick in the bundle of shared ownershiprights that is generally available to tenants in common but not tosurface owners of subsurface resource pools is a cause of action thatwould require one sharing owner to account to the other sharing ownersfor the value of the resource that the owner displaced. (146) But thisis understandable from the nature of the resource. As we have shown,courts have generally refused to hear causes of action for interferenceswith subsurface resource pools because the hidden character of theresources limits the judicial capacity to effectively determineliability and provide redress. The Supreme Court of Louisiana put itperfectly: "A review of the cases ... shows that damages were notallowed because of the uncertain and speculative nature of the losscomplained of." (147) It follows that as the technology ofdetermining the flow of subsurface resources improves, courts should beincreasingly willing to afford accounting rights by requiring a fairdivision of the value of extractions from a subsurface resource pool.(148)

Has technology improved since Acton was decided in 1843? Apparentlyyes. The Texas Supreme Court as early as 1935 observed:

 [W]hen an oil field has been fairly tested and developed, experts can determine approximately the amount of oil and gas in place in a common pool, and can also equitably determine the amount of oil and gas recoverable by the owner o[ each tract of land under certain operating conditions. (149)

Yet accountings are still not generally afforded nearly eightyyears later, despite the fact that technology has improved even furtherin the meantime. (150) It appears that judicial perceptions of thecapacity to provide subsurface resource accounting have not caught up toadvancing technology, but this might be attributable in part to the factthat the conventional views trace the lack of remedy for drainage to themigratory, rather than the hidden, character of the subsurfaceresources. Once it is understood that the hidden character of theresources is the factor that impelled courts to refuse to order anaccounting for diversion, the way should be clear to allow sharingowners to determine their ownership shares and for courts to enforcereasonable allocations.

4. The Shared Ownership of Subsurface Resource Pools IsConstitutionally Significant

The shared nature of subsurface resource pools is evident from theseminal decision on the constitutionality of statutes that regulate oiland gas for waste, Ohio Oil Co. v. Indiana. (151)

The Court at the outset noted that

 oil and gas are comingled and contained in a natural reservoir which lies beneath an extensive area of country, and that as thus situated the gas and oil are capable of flowing from place to place, and are hence susceptible of being drawn off by wells from any point, provided they penetrate into the reservoir .... From this it must necessarily come to pass that the entire volume of gas and oil is in some measure liable to be decreased by the act of any one who, within the superficial area, bores wells from the surface and strikes the reservoir containing the oil and gas. (152)

The Court recognized that surface owners do not exclusively own oiland gas residing beneath their land because this degree of ownershipdoes not arise until the surface owner achieves "dominion andcontrol by actual possession" of the oil and gas. (153) The Courtthen made clear that oil and gas are not commons property,distinguishing oil and gas from the classic case of commonly ownedproperty, "animals ferae naturae." Such animals "belongto the 'negative community;' in other words, are public thingssubject to the absolute control of the State, which, although it allowsthem to be reduced to possession, may at its will not only regulate butwholly forbid their future taking." (154) While oil and gas sharesome similarity to animals ferae naturae, the Court held they areconstitutionally distinct because the "identity" between thetwo "is for many reasons wanting":

 In things ferae naturae all are endowed with the power of seeking to reduce a portion of the public property to the domain of private ownership by reducing them to possession. In the case of natural gas and oil no such right exists in the public. It is vested only in the owners in fee of the surface of the earth within the area of the gas field. (155)

Accordingly, surface proprietors "could not be absolutelydeprived of" the right to reduce oil and gas to possession that"belongs to theln." (156)

Under this constitutional framework for takings, oil and gas insitu is not private property (because there is insufficient dominion andcontrol by actual possession) and it is not commons property (becausethe rights belong only to surface owners). All that is left is torecognize the name of this constitutional class of property: sharedproperty. (157) Noncompensated regulation of shared property is morepermissible than regulation of private property precisely because it isshared property. (158)

III. PRIVATE GOVERNANCE OF SHARED PROPERTY

The shared property paradigm suggests that decisions about theexploitation of the subsurface pool should be made in a unified way thattakes into account the joint interests of the shared owners in the valueof the pool, while protecting the individual interests of surface ownersin the portion of pool that underlies their property. Assuming that asingle surface owner or lessee cannot acquire all the rights in thepool, this paradigm suggests that several principles ought to inform thelegal approach to shared property. Significantly, because the common lawhas developed with an intuitive sense of the rights and responsibilitiesof sharing owners, no major common law decisions need to be overruled inorder to adopt those principles.

In order to establish private governance of the exploitation oftheir shared property, sharing owners ought to agree on the percentageof ownership to be held by each surface owner in advance of drilling.Although the hidden nature of the resource once made that taskimpossible, modern seismic technology has advanced to a level thatsuggests that assigning shares to the sharing owners is now reasonablyfeasible.(159) Undoubtedly, the shares might not be determined withscientific precision and would not be free from doubt, so sharing ownerswould want to build in mechanisms for adjusting the shares as newinformation about the precise location of the resource develops, butnegotiations toward an agreement in principle should be possible, andcourts are available to help resolve factual disputes.

The law should function to encourage sharing owners to establish agovernance mechanism that would allow them to make unified decisionsabout whether, when, and how they exploit the resource. The precisegovernance mechanism would vary with the number of sharing owners. Onemodel for shared governance comes from the governance mechanisms used bycommon interest communities. Under this model, sharing owners would beassigned votes in proportion to the amount of the pool underlying theirproperty; oil the basis of those votes, they would adopt a charteroutlining the basic rights and responsibilities of the shared ownershipand establish a governing body to make exploitation decisions. theowners would then elect individuals to the governing body. The governingbody would make exploitation decisions on behalf of the sharing owners,subject to judicial review that would determine whether the decisionsconformed to reasonable governing regulations, were themselvesreasonable, and followed principles of appropriate process (including,for important decisions, the protection of minority rights).

The shared owners can choose between two governance models, aunified exploitation model or a decentralized exploitation model. Underthe unified exploitation model, the governing body would itself exploitthe pool on behalf of the shared owners, but individual interests wouldbe protected by the requirement of reasonable decisions, accounting, andjudicial review. Under the decentralized exploitation model, theindividual owners would separately exploit the pool on their own behalfaccording to rules and regulations established by the governing body.(160) Governing bodies under both unified and decentralized models wouldestablish procedures for assigning "ownership" rights to thepool (based oil the ownership of surface property) and would adjustthose rights in response to new information generated from newtechnology.

We anticipate that private governance structures can be privatelyestablished and operated (subject to judicial review), with a miniatureof legislative input needed to guide how the governing bodies areestablished and operated. Again, the model of the common interestcommunity suggests that private agreements subject to judicial revieware superior to legislative regulation because the sharing owners knowbest how to make exploitation decisions and because the decisions aresubject to well--developed standards of reasonableness that lendthemselves to development and application along common law lines.

There might, however, be one area in which legislative interventionwould be important. The ability of sharing owners to reach agreement ona governance mechanism and joint decision making would be subject to theholdout problem. Owners might feign reluctance to exploit the sharedproperty in order to gain an advantage in the negotiations. Therefore,private governance might require a mechanism for ensuring that if alarge majority of the owners of a common pool could agree on anallocation of shares and an appropriate governance mechanism, otherowners would be forced to accept the decisions of the majority. Thatmechanism would induce holdout owners to negotiate in good faith inorder to protect their interests and have an impact on the unifieddecisions.

CONCLUSION

The law's need to accommodate the particular and the generalto understand the outcome in particular cases in terms of generaldirections that others can follow requires legal theory to move easilybetween the pieces of a mosaic and the overall picture the piecesportray. This requires theory that can move beyond general principleswhose content is unexplored and undefined, while simultaneouslycapturing the relationship between the details in a way that binds themtogether into a coherent pattern. For this reason, successful theorydepends on a framework or paradigm that captures the relevant variablesand their relationships to each other. When formed at too diffuse alevel or when focused on too many particulars, theory providesinsufficient guidance; when focused on too few particulars, theorydistorts reality.

The theory applicable to subsurface resource pools has neverpresented a comfortable picture because it has continually vacillatedbetween theories of individual ownership and common ownership that hasleft the law's imprint smudged and confused. Attempts to bring thelaw into focus by espousing theories that focus on one feature overothers such as capture or location--or by giving up on theory andallowing resource exploitation to be understood as a race (the"Drill, baby, drill!" v) have given the law applicable tosubsurface resource pools a vacillating, uneven, and opaque character.

Because the widespread deployment of horizontal slickwaterfracturing has threatened traditional property interests by requiringthe driller to cross surface boundaries, in this Article we have taken afresh look at the cases that determine rights and responsibilities tosubsurface resource pools. What we have found is that common law courtshave implicitly applied a theory of shared ownership to controversiesarising from the exploitation of subsurface resource pools, one thatthey modified only to accommodate the difficulty of tracing the flow ofhidden resources. This finding ought to change the way we understand thelaw applicable to subsurface resource pools, for it allows us tointegrate into a single theory a theory of shared resources thatactualizes a legal approach to the many controversies that suchresources generate.

Under the theory of shared resources, owners of surface propertyover a subsurface pool have a unity of interest in the exploitation ofthe pool that requires each surface owner to act as if she were part ofunified ownership, but each surface owner has an individual interest inthe portion of the pool underlying her property. This is the paradigmthat common law courts have largely applied, and it is the theory thatshould govern our understanding of, and legal approach to, horizontalslickwater fracturing. Moreover, now that seismic technology has largelyremoved the hidden nature of resource pools, courts can move to fullyimplement the shared resources paradigm, for now the individual sharesof the resource pool can be determined with a fair degree of accuracy.

Significantly, the shared property theory can largely beimplemented through private agreements, rather than legislative orregulatory commission dictates. Because surface owners have a unity ofinterest and neither their number nor their idiosyncratic interests aregreat, most of the issues relating to unified exploitation can be workedout by negotiations between surface owners acting reasonably and in goodfaith, and subject only to judicial review to evaluate thereasonableness of the agreements and to address controversies thatcannot be resolved by the owners themselves.

(1.) Oil and gas recovered from shale deposits is different fromother pooled resources in that it does not migrate as easily from onelocation to another. Nonetheless, we can apply the property regimesdeveloped for common pool resources to the property regimes applied tohydraulic fracturing because of their similarities. The law applicableto oil and gas has always taken its migratory nature into account; gasrecovered from shale migrates less but can be effectively recovered onlyby horizontal drilling that crosses surface boundaries. The oil and gasdo not migrate but the method of extraction, in a sense, does.

(2.) DUKEMINIER ET AL., PROPERTY 36 (7th ed. 2010) (footnoteomitted).

(3.) Robert E. Hardwicke, The Rule of Capture and Its Implicationsas Applied to Oil and Gas, 13 TEX. L. REV. 391, 393 (1935) ("Theowner of a tract of land acquires title to the oil or gas which heproduces from wells drilled thereon, though it may be proved that partof such oil or gas migrated from adjoining lands. The antithesis of therule of capture is: The owner of a tract of land owns the oil and gas inplace and, should such minerals migrate to a neighbor's land and beproduced from wells thereon, title would not vest in the neighbor, but,to the contrary, the migrating oil or gas, or at least an amount equalto that which migrated, could be recovered by the true owner.");see also Laura H. Burney, A Pragmatic Approach to Decision Making in theNext Era of Oil and Gas Jurisprudence, 16 3. ENERGY NAT. RESOURCES &ENVTL. L. l, 9 (1996) ("By analogizing to the common-law rule usedto determine rights in wild animals (ferae naturae), courts adopted therule of capture to define a property owner's rights in oil and gasbeneath her property. Under the rule of capture, an owner of land'acquires title to the oil or gas which he produces from wellsdrilled thereon.'" (quoting Hardwicke, supra note 3, at 393));Jonathan H. Adler, Conservation Through Collusion: Antitrust as anObstacle to Marine Resource Conservation, 61 WASH. & LEE L. REV. 3,50 (2004) ("Under the rule of capture, landowners acquire propertyrights to oil upon extraction.").

(4.) This translates to "of a wild nature." BLACK'SLAW DICTIONARY 696 (9th ed. 2009).

(5.) RESTATEMENT (SECOND) OF TORTS, ch. 41, topic 4, intro, note(1979); see also DUKEMINIER ET AL., supra note 2, at 3-38("Groundwater (water found in underground aquifers) ... wasgoverned early on by the English rule of absolute ownership, whichallowed each landowner over an aquifer to withdraw freely without regardto effects on neighbors.").

(6.) RESTATEMENT (SECOND) OF TORTS, ch. 41, topic 4, introductorynote, at 256 (1977).

(7.) The ad coelum phrase comes from the Latin expression cujus estsolum, ejus est usque ad coelum et infera--"whoever owns the soil,it is theirs all the way up to Heaven and down to Hell." The phrasewas coined by a medieval, not ancient, Italian, Accursius. See ClementL. Bouve, Private Ownership of Airspace, 1 AIR L. REV. 232, 246 (1930)(providing a general discussion of the Latin phrase, its origin, and itsplace in Roman Law). It was popularized by Blackstone five centurieslater. See 2 WILLIAM BLACKSTONE, COMMENTARIES "18. This concept hasnot been especially helpful and courts have spent a good deal of timeand energy in attempts to get out from under its burdensome logic. See,e.g., Hinman v. Pac. Air Transp., 84 F.2d 755, 758 (9th Cir. 1936)(rejecting a literal interpretation of the ad coelom doctrine andholding that landowners only own "the space above the ground"the owner "can occupy or make use of as "[a]ll that liesbeyond belongs to the world").

(8.) Walter L. Summers, A Treatise on the Law of Oil and Gas[section] 24, at 71-72 (1927) ("Suppose A is the owner in fee of atract of land, Blackacre, ... and that B is a like owner of a nearby oradjoining tract of land, Whiteacre, and that beneath these there is anoil and gas reservoir. ... Suppose, further, that A drills a well uponBlackacre, tapping the oil or gas reservoir at such a point that by thenatural pressure existing in the reservoir oil or gas come from underB's land, Whiteacre, into A's well on Blackacre, and are soreduced to actual possession by A; have B's legal rights in respectto the oil or gas in situ under Whiteacre been violated? Or, to put itanother way, was A legally privileged to take the oil and gas from underWhiteacre in the manner described? The courts are of the unanimousopinion that A's acts of taking oil or gas in the manner describedfrom under both tracts of land are legally privileged, and that B has norights that A so take the oil and gas from Whiteacre by acts lawfullydone upon Blackacre as above described."); W.L. Summers, LegalRights Against Drainage of Oil and Gas, 18 Texas L. Rev. 27, 29 (1939)("[Courts] knew that one landowner could not produce from his landwithout taking some of the oil and gas from adjacent lands, but theywere likewise aware of the fact that the economic value of oil and gascould not be realized without production; consequently, they ruled infavor of unlimited privileges of taking.").

9. There Will Be Blood (Paramount Vantage and Miramax Films 2007).In the scene, Plainview is explaining that he has already extracted theoil beneath a certain property despite never drilling on its surface.Director Paul Thomas Anderson, who received an Academy Award nominationfor the screenplay, told several media outlets that the film'siconic "I drink your milkshake" lines "came straight froma transcript [Anderson] found of the 1924 congressional hearings overthe Teapot Dome scandal." Scott Bowles, 'Blood' FansDrink Up Milkshake Catchphrase, USA Today (Feb. 4, 2008),http://usatoday30.usatoday.com/life/movies/news/2008-02-03-blood-milkshake_N.htm ("In explainingoil drainage, [former Secretary of the Interior Albert] Fall's'way of describing it was to say "Sir, if you have a milkshakeand I have a milkshake and my straw reaches across the room, I'llend up drinking your milkshake,"' Anderson says. 'I justtook this insane concept and used it.'"); see also ScottFoundas, Paul Thomas Anderson: Blood, Sweat and Tears, L.A. Wkly. (Feb.4, 2008), http://www.laweekly.com/2008-01-17/film-tv/blood-sweat-and-tears ("I'm sure Iembellished it and changed it around and made it more Plainview. ButFall used the word 'milk shake,' and I thought it was sogreat."). Many film-related websites and blogs reproducedAnderson's anecdote about the origin of the lines.

But searches of the transcripts of the relevant Teapot Domeinvestigation hearings produced no testimony or other record similar towhat Anderson described. Leases upon Navy Oil Reserves: Hearing on S.Res. 147, 282, 294, and 434, Before the S. Coram, on Public Lands andSurveys, 67th-68th Cong. (1923-1924). No form of the word "milkshake" was found in the transcripts, and the few mentions of otherwords central to the quoted lines, like "straw" and"drink," appear only in unrelated contexts. However, theCongressional Record does contain a discussion of subsurface resourceextraction--from eighty years later-with specific imagery very similarto the film's. In 2003, Senator Peter Domenici remarked on theSenate floor during a debate over drilling in the Arctic NationalWildlife Refuge:

 And you see, way far away, the oil is underground, and it is going to be drilled and come up. ... Here is a giant reservoir underground. ... [J]ust like a curved straw, you put it underground and maneuver it, and the "milk shake" is way over there, and your little child wants the milk shake, and they sit over here in their bedroom where they are feeling ill, and they just gobble it up from way down in the kitchen, where you don't even have to move the Mix Master that made the ice cream for them. You don't have to take it up to the bedroom. This describes the actual drilling that is taking place.

149 Cong. Reg. 6729 (2003). Coincidentally, both Fall (1912-1921)and Domenici (1973-2009) represented New Mexico in the Senate.

(10.) Chief Justice Marshall invoked the damnum absque injuriaframework in the second inquiry in Marbury v. Madison:

 It behooves us then to enquire whether there be in its composition any ingredient which shall exempt it from legal investigation, or exclude the injured party from legal redress. In pursuing this enquiry the first question which presents itself, is, whether this can be arranged with the class of cases which come under the description of damnum absque injuria--a loss without an injury. This description of cases never has been considered, and it is believed never can be considered, as comprehending offices of trust, of honor or of profit. The office of justice of peace in the district of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. ... It is not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163-64 (1803). As inother cases, Marbury provides no meaningful distinction between, in thelanguage of Marshall, loss without injury and loss with injury. It is,as always, a maxim denoting a result but not a justification for theresult.

(11.) The damnum absque injuria cases are similar to judicialcognizability requirements for causes of action brought in federal courtin origin as well as substance. The common law nuisance cause of actionand its exceptions under the damnum absque injuria framework originatedin the English crown courts. The crown courts in that time exercisedjurisdiction alongside seigniorial courts, as the federal courtsexercise jurisdiction alongside state courts. This dual judicialstructure breeds wholesale rejections of entire classes of causes ofaction as the superior judicial body shapes and optimizes itsjurisdiction. Seigniorial courts were unwilling to limit jurisdiction orreject classes of actions as this would restrict a lord's powerwithout any benefit to the lord. In any given case, the seigniorialcourt could just rule against a particular plaintiff without limitingthe power to decide a similar dispute in the future. When Americanstates imported the common law of the English crown courts, theyimported the practice of jurisdictional optimization as well and itcontinued unabated, perhaps because it had by that time proved sobeneficial to the growth and development of the English legal system.

(12.) Hamlyn v. More, Y.B. 11 Hen. 4, fol. 47, Hil., pi. 21 (1410)(Eng.); John Baker, Baker and Milsom: Sources of English Legal History671-73 (Oxford Univ. Press 2d ed. 2010) (1986) [hereinafter Baker &Milsom]. Before Hamlyn v. More, proprietors of capital projects couldsue upstart competition. See Robert D. Cheren, Note, Tragic Parlor Pigsand Comedic Rascally Rabbits: Why Common Law Nuisance Exceptions RefuteCoase's Economic Analysis of the Law, 63 Case W. Res. L. Rev. 555,572 (2012).

(13.) See Acton v. Blundell, (1843) 152 Eng. Rep. 1223 (Exch.); 12M. & W. 324 (Eng.); Fontainebleau Hotel Corp. v. Forty-FiveTwenty-Five, Inc, 168 So. 2d 317 (Fla. 1964).

(14.) See Hamlyn v. More, Y.B. 11 Hen. 4, fol. 47, Hit, pi. 21(1410) (Eng.); Baker & Milsom, supra note 13, at 672.

(15.) See Boulston v. Hardy, (1596) 77 Eng. Rep. 216 (C.P.);Bowlston v. Hardy, (1596) 78 Eng. Rep. 794 (C.P.).

(16.) Acton, 152 Eng. Rep. 1223; 12 M. & W. 324. AMassachusetts case from 1836 held an interference with subsurface waterdamnum absque injuria, but with the important caveat that the plaintiffhad not gained prescriptive rights to the water by adverse use fortwenty years. Greenleaf v. Francis, 35 Mass. (18 Pick.) 117, 122-23(1836). The plaintiff's claim is so well and succinctly expressedby the court it is worth repeating here:

 [T]he defendant dug to obtain water in his own soil, and in a place where it was convenient for him, near to the well of the plaintiff, and after the defendant's well was dug, the water ceased to flow into the plaintiffs well, so copiously as it did before.

Id. at 122. The dissonance between Greenleaf and Acton was madeevident by an 1868 Massachusetts decision affirming a trial court'srefusal to give a defendant the benefit of an Acton instruction anddirecting verdict for a plaintiff in a case where manure stored in asubterranean vault polluted a neighbor's cellar and well. Ball v.Nye, 99 Mass. 582, 583-84 (1868). The defendant had requested the jurybe instructed that, if liable at all, the defendant could only be liablefor the pollution of the neighbor's cellar, not the well. Id. at583.

(17.) Acton, 152 Eng. Rep. at 1232; 12 M. & W. at 347 (TindalC.J.).

(18.) Id. at 1233; 12 M. & W. at 348.

(19.) Id. at 1233; 12 M. & W. at 349; see also HENR1CI DEBRACTON, DE LEGIBUS ET CONSUETUD1NIBUS ANGLIAE f. 232b (Samuel E. Thorneed. & trans., Harvard Univ. Press 1977) (ca. 1245-1257); RANULF DEGLANVILL, TRACTATUS DE LECIBUS ET CONSUETUDINIIBUS REGNI ANGLIE QUIGLANVILLA VOCATUR bk. XIII, c. 36 (G.D.G. Hall ed. & trans., OxfordUniv. Press 1965) (ca. 1187-1189); Tyler v. Wilkinson, 24 F. Cas. 472,474 (C.C.D.R.I. 1827).

(20.) Acton, 152 Eng. Rep. at 1233; 12 M. & W. at 349.

(21.) Id. at 1235; 12 M. & W. at 353.

(22.) Id.; 12 M. & W. at 354.

(23.) Cheren, supra note 13, at 591; see also Marieopa Cnty. Mun.Water Conservation Dist. No. 1 v. Sw. Cotton Co., 4 P.2d 369, 383 (Ariz.1931) ("Surface waters are plainly visible, definitelyascertainable, and the effect of their appropriation generally easilyforeseen and understood by all. Subterranean waters are necessarily moreor less uncertain as to their very existence, speculative as to theircharacter, and frequently incapable of an immediate demonstration of theresults of their appropriation of such a nature that investors maysafely stake their funds and farmers their future on the. success of theproject."); Roath v. Driscoll, 20 Conn. 533, 542 (1850)("[Surface streams] are recognized as private property: and theiruse is regulated by principles of obvious equity and necessity. Theirnature is defined; their progress over the surface seen, and known, anduniform. They are not in the secret places of the earth, and a part ofit; nor is there any secresy in the influences which move them. As soonas they appear and pass over the surface, they assume a distinctcharacter, and are subject to the great law of gravitation. Thepurchaser of land knows what he purchases, and what controul he canexercise over such a stream, and what are the rights of those above orbelow him. Each may use them as the common atmosphere; but none caninjuriously interrupt their progress, or render them unfit for commonuse. Their laws are as fixed and public, as the laws of freeholdestates."); Upjohn v. Bd. of Health, 9 N.W. 845, 848 (Mich. 1881)("The movements of subsurface waters are commonly so obscure thatrights in or respecting then, cannot well be preserved. They do notoften have a well-defined channel, and it is not easy in many cases todetermine in what direction their movements tend. If corrupted at onepoint the effect may be confined within very narrow limits, while atanother, though no surface indications would lead one to expect it, thetaint might follow the water for miles. In some cases a new well at aconsiderable distance from an old one may withdraw the water from theother and destroy it, while in other cases, in which the same resultwould seem more likely, there is no perceptible influence.");Chatfield v. Wilson, 28 Vt. 49, 54 (1855) ("The secret, changeable,and uncontrollable character of underground water in its operations, isso diverse and uncertain that we cannot well subject it to theregulations of law, nor build upon it a system of rules, as is done inthe case of surface streams.").

(24.) Sw. Cotton, 4 P.2d at 383; Roath, 20 Conn. 533; Edwards v.Haeger, 54 N.E. 176, 177 (Ill. 1899); New Albany & Salem R.R.. Co.v. Peterson, 14 Ind. 112 (1860); Hougan v. Milwaukee & St. Paul Ry.Co., 35 Iowa 558 (1872); Nourse v. Andrews, 255 S.W. 84, 86 (Ky. 1923);Chase v. Silverstone, 62 Me. 175, 183-84 (1873); Upjohn, 9 N.W. at 845;Ryan v. Quinlan, 124 p. 512, 516 (Mont. 1912); Beatrice Gas Co. v.Thomas, 59 N.W. 925, 927 28 (Neb. 1894); Mosier v. Caldwell, 7 Nev. 363(1872); Bloodgood v. Ayers, 15 N.E. 433 (N.Y. 1888); Ellis v. Duncan, 21Barb. 230, 235 (N.Y. Gem Term 1855); Frazier v. Brown, 12 Ohio St. 294(1861); Wheatley v. Baugh, 25 Pa. 528, 528 (1855); Houston & T. C.Ry. Co. v. East, 81 S.W. 279 (Tex. 1904); Crescent Mining Co. v. SilverKing Mining Co., 54 P. 244 (Utah 1898); Chatfield, 28 Vt. 49; Miller v.Black Rock Springs Imp. Co., 40 S.E. 27 (Va. 1901); Pence v. Carney, 52S.E. 702, 706 (W. Va. 1905). Ohio reversed the broad Frazier v. Browninterpretation of the Acton rule in 1984. See Cline v. Am. AggregatesCorp., 474 N.E.2d 324 (Ohio 1984). Utah altered the result in CrescentMining Co. by statute. See Riordan v. Westwood, 203 P.2d 922, 923 (Utah1949); Utah Code Ann. [section] 73-1-3 (Lexis Nexis 2012).

Several states adopted a reasonableness regime at the outsetwithout ever holding subsurface water injuries are generally damnumabsque injuria. Cason v. Fla. Power Co., 76 So. 535 (Fla. 1917) (notinginterferences are not actionable when they are reasonable); Bassett v.Salisbury Mfg. Co., 43 N.H. 569, 577 (1862) (restricting "each to areasonable exercise of his own right, a reasonable use of his ownproperty, in view of the similar rights of others" because"[t]he rights of each land-owner being similar, and his enjoymentdependent upon the action of the other land-owners, these rights must bevalueless unless exercised with reference to each other"); Meekerv. City of E. Orange, 74 A. 379 (N.J. 1909) (rejecting the "Englishrule" of property in underground resources and adopting the"reasonable user" doctrine). As most jurisdictions that followActon provide for actions against unreasonable users of subsurfaceresource pools, the difference in the Acton rejecting jurisdictions isnot clear. The West Virginia Supreme Court of Appeals in adopting thereasonableness regime stated that it "constitutes ... aqualification of the early rule [rather] than an announcement of a newrule." Pence, 52 S.E. at 706. Accordingly, the states that adoptedthe reasonableness regime at the outset, like West Virginia, arguably inone stroke adopted the rule of Acton and then qualified it, or perhapsadopted two rules that are not actually in conflict with one another.See discussion infra Part II.B.

(25.) People's Gas Co. v. Tyner, 31 N.E. 59, 60 (Ind. 1892)("So far as this suit seeks to enjoin the appellants from explodingnitroglycerin in their gas well, upon the ground that it will increasethe flow of the gas to the injury of the appellee, it cannot, in ouropinion, be sustained."); Kelly v. Ohio Oil Co., 49 N.E. 399, 401(Ohio 1897); Gruger v. Phillips Petroleum Co., 135 P.2d 485, 488-89(Okla. 1943) (affirming dismissal of action seeking compensation for oilwithdrawn from beneath plaintiff's land); Elliff v. Texon DrillingCo., 210 S.W.2d 558, 562 (Tex. 1948) (holding landowners may"appropriate the oil and gas that have flowed from adjacent landswithout the consent of the owner of those lands, and without incurringliability to him for drainage"); Powers v. Union Drilling, Inc.,461 S.E.2d 844 (W. Va. 1995) (holding drainage of oil and gas notactionable at common law). Surprisingly, the Texas Supreme Court had nooccasion to apply Acton to oil and gas until decades after the adoptionof Texas's statutory regime for regulating oil and gas. 210 S.W.2d558. The court had only observed that the rule applied in earlier casesnot dealing with disputes between neighbors. See, e.g., Brown v. HumbleOil & Ref. Co., 83 S.W.2d 935, 940 (Tex. 1935) ("The common lawrecognizes no well spacing regulations. At common law the landowner candrill an unlimited number of wells for oil and gas upon his land.... Theadjoining landowner cannot complain if wells are drilled near hisboundary line. Under this rule the only way the landowner can protecthimself is to drill offset wells."); Stephens Cnty. v. Mid-Kan. Oil& Gas Co., 254 S.W. 290, 292 (Tex. 1923) ("Ultimate injury fromthe net results of drainage, where proper diligence is used, isaltogether too conjectural to form the basis for the denial of a rightof property in that which is not only plainly as much realty as anyother part of the earth's contents, but realty of the highest valueto mankind...."). Many oil and gas producing states have no casesapplying Acton to oil and gas, probably due to the enactment ofregulatory regimes before state supreme courts had occasion to addressthe issue in a purely common law fashion. This includes Idaho, Nebraska,North Dakota, and Wyoming. As for Pennsylvania, see infra textaccompanying notes 67-71 and 90 108. As for Kentucky, see infra textaccompanying notes 41-54 and 75. As for Indiana, see infra textaccompanying notes 76-81.

(26.) Cheren, supra note 13, at 593. This feeling, arising due tothe hidden character of subsurface resources, led courts not only tolimit actions for" nuisance, but to adopt limiting constructions ofservitudes as well. For example, one decision narrowly interpreted aconveyance that included right to draw water in the amount "nowused" from a particular well so as to not make actionable thesubsequent construction of another well that diminished the water in thewell described in the conveyance below the amount suggested by the words"as now used." Davis v. Spaulding, 32 N.E. 650, 650 (Mass.1892). The court observed:

 It is impossible to know in what direction percolating water finds its way into a well; perhaps only through the bottom of the excavation, and perhaps through the surrounding as well as the subjacent land. Its ways of approach, and its amount, vary with the operation of obscure natural causes, not controllable by the owner of the land through which it passes. If the grant of such a well, or of the privilege of drawing water from it, were held to impose an obligation upon all the land from which the well might derive a supply of water, the burden would be very indefinite, uncertain, and shifting, and would tend, without any adequate corresponding benefit, to prevent the improvement of land by buildings, and its use for mining, quarrying, and many other useful purposes.... An intention to subject a large territory to such a burden for the benefit of a single house lot is not to be lightly presumed.

Id. at 652. Samuel Hamilton, one of John Steinbeck's greatheroes, seems to know something that the court did not:

 He dismounted, handed his reins to Adam, and untied his forked wand. He took the forks in Iris two hands and walked slowly, his arms out and stretched before him and the wand tip up. His steps took a zigzag course. Once he frowned and backed up a few steps, then shook his head and went on. Adam rode slowly along behind, leading the other horse. Adam kept his eyes on the stick. He saw it quiver and then jerk a little, as though an invisible fish were tugging at a line. Samuel's face was taut with attention. He continued on until the point of the wand seemed to be pulled strongly downward against his straining arms. He made a slow circle, broke off a piece of sagebrush, and dropped it on the ground. He moved well outside his circle, held up his stick again, and moved inward toward his marker. As he came near it, the point of the stick was drawn down again. Samuel sighed and relaxed and dropped his wand on the ground. "I can get water here," he said. "And not very deep. The pull was strong, plenty of water." "Good," said Adam.

JOHN STEINBECK, EAST OF EDEN 165 (Viking 2003) (1952).

(27.) Swift & Co. v. Peoples Coal & Oil Co., 186 A. 629,632 (Conn. 1936); Beatrice, 59 N.W. at 927-28; Branch v. W. Petroleum,Inc., 657 P.2d 267, 274 (Utah 1982).

(28.) Hanson v. McCue, 42 Cal. 303, 308 (1871); Tampa WaterworksCo. v. Cline, 20 So. 780, 783 (Fla. 1896); Willis v. City of Perry, 60N.W. 727, 729 (Iowa 1894); Maddocks v. Giles, 728 A.2d 150 (Me. 1999);Bloodgood, 15 N.E. at 434; Wheatley, 25 Pa. at 531; Logan Gas Co. v.Glasgo, 170 N.E. 874, 876 (Ohio 1930); Canada v. City of Shawnee, 64P.2d 694, 699 (Okla. 1937); Clinchfield Coal Corp. v. Compton, 139 S.E.308, 311 (Va. 1927).

(29.) See Wheatley, 25 Pa. at 532 ("When the filtrations aregathered into sufficient volume to have an appreciable value, and toflow in a clearly defined channel, it is generally possible to see it,and to avoid diverting it without serious detriment to the owner of theland through which it flows."); Haldeman v. Bruckhardt, 45 Pa. 514,521 (1863) ("The defined watercourses [discussed in Wheatley] whicha man may not divert to the hurt of an inferior proprietor, are not thehidden streams of which the owner of the soil through which they passcan have no knowledge until they have been discovered by excavationsmade in the exercise of his rights of property. There are known streamsto which, if the lower proprietor has any rights, they are perceptible,and require no subsurface exploration before their course can bedefined.").

(30.) See, e.g., DUKEMINIER ET AL., supra note 2, at 36 ("Theresources, one early case said, 'may be classed by themselves, ifthe analogy be not too fanciful, as mineralsferae naturae. In commonwith animals, and unlike other minerals, they have the power and thetendency to escape without the volition of the owner.... They belong tothe owner of the land, and are part of it, so long as they are on or init, and are subject to his control; but when they escape, and go intoother land, or come under another's control, the title of theformer owner is gone. Possession of the land, therefore, is notnecessarily 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 hiswell and under his control, it is no longer yours, but his.'")(quoting Westmoreland & Cambria Nat. Gas Co. v. DeWitt, 18 A. 724,725 (Pa. 1889) (alteration in original)).

(31.) The holding in Westmoreland is only that drilling leases areenforceable in equity. A landowner leased a parcel "for the soleand only purpose of drilling and operating wells" to one party andsubsequently leased the land to others who intended to drill and operatewells. 18 A. at 724. The original lessor sought an injunction but wasdenied by the lower court on the grounds that the lessor did not havepossession of property sufficient to entitle the lessor to the equitableremedy of an injunction. Thus, the lessor would only be able to pursue acase at law for damages, Id. The Pennsylvania Supreme Court reversed andheld that the lessor did have sufficient possession to support equitableremedies because the lessor had drilled a well and had the immediateability to remove gas. The court analogized subsurface resource pools towild animals only for the limited proposition that the degree ofpossession required to entitle the holder of an interest in water, oil,and gas to equitable remedies was less than the degree required if theresource were solid minerals. Id. at 725.

(32.) See discussion infra Part III (showing Supreme Courtrecognition that oil and gas are, unlike wild animals, not commonsproperty for constitutional purposes).

(33.) Brown & Bros. v. Illius, 27 Conn. 84, 94 (1858) (holdingpollution of well caused by the transmission of pollutants produced inthe course of industrial manufacturing by way of subsurface currents andstreams damnum absque injuria because "plaintiffs could no morecomplain of the inconvenience to them" caused thereby "thanthey could if the defendant had dug a well on his own land and therebydried up a well on that of the plaintiffs"), overruled in part bySwift & Co. v. Peoples Coal & Oil Co., 186 A. 629 (Conn. 1936)(finding an exception to the holding of Brown & Bros. for pollutantstransmitted by percolating waters as opposed to subsurface currents andstreams and overruling the distinction, effectively holding subsurfacetransmission of pollutants by any means is no longer damnum absqueinjuria.); United Fuel Gas Co. v. Sawyers, 259 S.W.2d 466, 467 (Ky.1953) (reversing judgment of "damages for the contamination of awater well charged to have been caused by a nearby gas well"because the injury is damnum absque injuria); Upjohn v. Bd. of Health, 9N.W. 845, 848 (Mich. 1881) (holding corruption of subsurface watercaused by burial of the dead not actionable); Logan Gas, 170 N.E. at 876(holding drying up of stream caused by drilling of gas well damnumabsque injuria); Rose v. SoconyVacuum Corp., 173 A. 627, 632 (R.I. 1934)(holding "contamination of percolating waters" by theoperation of neighboring refinery was damnum absque injuria), abrogatedby Splendorio v. Bilray Demolition Co., Inc., 682 A.2d 461 (R.I. 1996);Couch v. Clinchfield Coal Corp., 139 S.E. 314, 316 (Va. 1927) (holdingdrying up of well caused by collapse of neighbor's mine damnumabsque injuria); Chatfield v. Wilson, 28 Vt. 49 (1855) (holdingdiminishment of percolating water following into reservoir caused by thediversion of brook damnum absque injuria).

(34.) City of Emporia v. Soden, 25 Kan. 588, 612 (1881) (holdingthat a city must compensate a mill owner for the loss of natural surfacestream flow caused by the city digging a percolation-fed well on nearbyland); Strait v. Brown, 16 Nev. 317, 321 (1881) (holding actionable thediminishment of a creek caused by diversion of the creek's source,a spring, even though the creek received water "by somesubterranean means"); Smith v. City of Brooklyn, 54 N.E. 787, 788(N.Y. 1899) ("That the diversion and diminution of the [surface]stream were caused by arresting and collecting the underground waters,which, percolating through the earth, fed the stream, does not affectthe question."). But see Ellis v. Duncan, 21 Barb. 230, 235 (N.Y.Gen. Term 1855) (holding that the damage resulting from "theinterruption of the sub-surface supplies of a stream ... is not thesubject of legal redress"); Miller v. Black Rock Springs Imp. Co.,40 S.E. 27, 31 (Va. 1901) (holding interception and diversion ofsubsurface source of neighbor's strealn damnum absque injuria).

(35.) Pixley v. Clark, 35 N.Y. 520 (1866) (holding defendant liablefor flooding his neighbor's land by damming an adjacent surfacestream, even though the flooding occurred via percolation through thesoil rather than the overflow of natural banks).

(36.) See Finley v. Teeter Stone, Inc., 248 A.2d 106, 116 (Md.1968) (holding threats to subsidence of land caused by neighboringextraction of subsurface water not actionable); see also discussioninfra Part II.

(37.) The impossibility of reasonable waste under the common law isthe result of the technical definition of common law waste. Waste couldbe defined as any instance of less than full utilization, but this isnot how it is defined under the common law. Rather, waste is dissipationwithout any utilization at all. Thus, properly considered, the statutoryprohibitions on obtaining oil without capturing natural gas emanatingfrom the wellhead are not common law waste restrictions but are betterclassified under the category of unreasonable exploitation.

(38.) The most significant variation is that the sale of wateroutside of the locality may constitute unreasonable exploitation even ifthe sale of oil and gas outside of the locality would not be.

(39.) See Chesley v. King, 74 Me. 164, 177 (1882) (holding thatallegations of "digging of a well ... 'for the mere, sole andrnalicious purpose' of cutting off the sources of the spring andinjuring the plaintiff, and not for the improvement of his ownestate" are actionable but not borne out by the evidence); Gagnonv. French Lick Springs Hotel Co., 72 N.E. 849, 852 (Ind. 1904) (holdingspite water well and pump actionable); Louisville Gas Co. v. Ky. HeatingCo. (Louisville Gas 1), 77 S.W. 368, 369-70 (Ky. 1903) (owner of thesoil "cannot be allowed deliberately to waste the supply for thepurpose of injuring his neighbor.... Every owner may bore for gas on hisown ground, and may make a reasonable use of it; but he may not wantonlyinjure or destroy the reservoir common to him and his neighbor").

(40.) This definition distinguishes causes of action for activitiesthat have no other effect than to reduce the enjoyment of a subsurfaceresource pool without any finding or allegation of malicious intent. Insome of these cases, the action is clearly undertaken with such apurpose, but the court declines, for prudential reasons or otherwise, toinquire into the motives of the actor while nevertheless finding theaction unlawful.

(41.) Louisville Gas I, 77 S.W. at 369.

(42.) Id.

(43.) KY. STAT. [section][section] 3910 14 (Barbour & Carroll1894); see Commonwealth v. Trent, 77 S.W. 390 (Ky. 1903) (discussing thewaste statute).

(44.) Louisville Gas I, 77 S.W. at 369.

(45.) Id.

(46.) Id.

(47.) Id.

(48.) Id. at 370 (affirming injunction against the operation of thelampblack factory); Louisville Gas Co. v. Ky. Heating Co. (LouisvilleGas II), 111 S.W. 374, 375 (K.Y. 1908) (determining the propercalculation of damages for the malicious interference). The KentuckyCourt of Appeals was the highest court in Kentucky prior to 1976.

(49.) Louisville Gas I, 77 S.W. at 369-70.

(50.) Louisville Gas II, 111 S.W. at 376. As to the calculation ofdamages, the court explained:

 The damage sustained is only that which results from an improper interference with the natural flow of the gas in the wells and pipes of another. It is not the value of the gas at the point of distribution, or at any point where it enters artificial conduits, but the value in money for the diminution of the natural flow of the gas at the wells, directly and independently of all other causes attributable to the wrongs complained of. In other words, the measure of damages is the difference in money, at the point where taken, between the value of the natural flow and that of the diminished flow, directly and independently of all other causes, attributable to the wrong.

Id. at 376 77. The court also affirmed that punitive damages may beawarded. Id. at 377.

(51.) Louisville Gas I, 77 S.W. at 369-70.

(52.) Louisville Gas II, 111 S.W. at 376.

(53.) Louisville Gas I, 77 S.W. at 370.

(54.) Louisville Gas II, 111 S.W. at 376.

(55.) Higgins Oil & Fuel Co. v. Guar. Oil Co., 82 So. 206, 210,211 (La. 1919) (observing under civil law that "[o]n the point ofan owner not being allowed through pure spite or wantonness to dosomething on his property injurious to his neighbor, we find but onedissenting voice among the French law-writers and decisions" andquoting other French law-writers for the proposition that "[i]f itis found that an owner who has dug his soil has been prompted in doingso simply by the desire to injure his neighbor, the court can abate whathas been done" (citation omitted)); Finley v. Teeter Stone, Inc.,248 A.2d 106, 115 (Md. 1968) (declining to decide whether maliciousinterference with subsurface water is actionable because there was no"contention or proof ... that there was ... malice"); Swett v.Cutts, 50 N.H. 439, 447 (1870) ("[E]xcavations maliciously made inone's own land, with a view to destroy a spring or well in hisneighbor's land, could not be regarded as reasonable; and therewould be much ground for holding that if the spring or well in hisneighbor's land could be preserved without material detriment tothe land owner making such excavations, it would be evidence of malice,or such negligence as to be equivalent to malice."); Hague v.Wheeler, 27 A. 714, 718 (Pa. 1893) (noting plaintiffs could not"complain of the defendants for the act of drilling the well ontheir land on any other ground than the existence of malice ornegligence"); Wheatley v. Baugh, 25 Pa. 528, 533 (1855)("Neither the civil law nor the common law permits a man to bedeprived of a well or spring or stream of water for the meregratification of malice."); Rose v. SoconyVacuum Corp., 173 A. 627,630 (R.I. 1934) (noting landowner can "appropriate to its own usethe percolating waters under its Soil, providing that in so doing it wasnot actuated by an improper motive"); City of Corpus Christi v.City of Pleasanton, 276 S.W.2d 798, 801 (Tex. 1955) (noting common lawlimitation that a surface owner "may not maliciously take water forthe sole purpose of injuring his neighbor").

(56.) McCoy v. Ark. Natural Gas Co., 165 So. 632, 634 (La. 1936)(reversing dismissal of negligent waste of gas complaint becauseplaintiff's complaint alleged the waste diminished the market valueof the land); Higgins, 82 S. at 212 (holding under civil law that therefusal to plug an abandoned well may be an actionable nuisance);Stillwater Water Co. v. Farmer, 93 N.W. 907, 910 (Minn. 1903) (holdingthe digging of a trench that has no function other than to divertpercolating waters into a city sewer constitutes actionable wasteregardless of the trench digger's intent); Elliff v. Texon DrillingCo., 210 S.W.2d 558, 563 (Tex. 1948) (holding "the negligent wasteand destruction of petitioners' gas and distillate was neither alegitimate drainage of the minerals from beneath their lands nor alawful or reasonable appropriation of them" and was thereforeactionable).

(57.) Elliff, 210 S.W.2d at 562.

(58.) Id. at 559.

(59.) Id. at 559 60.

(60.) Id. at 559.

(61.) Id. at 560.

(62.) Texon Drilling Co. v. Elliff, 210 S.W.2d 553 (Tex. Civ. App.1947), rev'd, 210 S.W.2d 558.

(63.) Elliff, 210 S.W. at 561 (Tex. Sup. Ct.).

(64.) ld. at 562 ("[T]here is no liability for reasonable andlegitimate drainage from the common pool.").

(65.) Id.

(66.) Id. at 563.

(67.) See Hague v. Wheeler, 27 A. 714, 719-20 (Pa. 1893).

(68.) Id. at 718.

(69.) Id. at 718-19.

(70.) Id. at 719.

(71.) Id. at 718.

(72.) The following state statutes prohibit the waste of both oiland gas unless otherwise noted: ALA. CODE 9 9-17-11 (2001); ALASKA STAT.[section] 31.05.095 (2012); ARIZ. REV. STAT. ANN. [section] 27-503(2000); ARK. CODE ANN. [section] 15-72-105 (2009); CAL. PUB. RES. CODE[section][section] 3300, 3500 (West 2001) (gas); COLO. REV. STAT.[section] 34-60-107 (2012); FLA. STAT. [section] 377.20 (2012); GA. CODEANN. [section] 12-4-53 (2012); IDAHO CODE ANN. [section] 47-316 (2003);225 ILL. COMP. STAT. ANN. 725/1.1 (West 2007); IOWA CODE [section]458A.3 (2013); KAN. STAT. ANN. [section] 55-601 (2005) (oil); KY. REV.STAT. ANN. [section] 353.520 (West 2011); LA. REV. STAT. ANN. [section]30:2 (2007); MICH. COMP. LAWS ANN. [section] 324.61504 (West 1999);MISS. CODE ANN. [section] 53-3-3; MO. REV. STAT. [section] 259.060(2000); MONT. CODE ANN. [section] 82-11-121 (2011); N.M. STAT. ANN.[section] 70-2-2 (1995); N.Y. ENVTL. CONSERV. LAW [section] 71-1305(McKinney 1997); N.C. DEN. STAT. [section] 113-390 (2011); N.D. Cent.Code [section] 38-08-03 (2004); Ohio Rev. Code Ann. [section] 1509.20(West 2012) (requiring "every reasonable precaution in accordancewith the most approved methods of operation to stop and prevent waste ofoil or gas"); Okla. Stat. Ann. tit. 52, [section][section] 236, 271(West 2011); 58 Pa. Cons. Stat. Ann. [section] 404 (West 1996); Tex.Nat. Res. Code Ann. [section] 85.045 (West 2011); Utah Code Ann.[section] 40-6-3 (LexisNexis 2010); Vt. Stat. Ann. tit. 29 [section] 521(2008); Wash. Rev. Code [section] 78.52.130 (2012) (same); Wyo. Swat.Ann. [section] 30-5-102 (2011).

(73.) See, e.g., Finley v. Teeter Stone, Inc., 248 A.2d 106, 115(Md. 1968) (declining to decide whether waste of subsurface water isactionable because there was "no contention or proof ... that therewas ... waste"); Village of Delhi v. Youmans, 50 Barb. 316, 320(N.Y. Gen. Term 1867) (Boardman, J.) ("No person can wantonly andmaliciously cut off on his own land the underground supply of aneighbors' spring or well without any purpose of usefulness tohimself.").

(74.) Katz v. Walkinshaw, 74 P. 766, 771 (Cal. 1903) ("Thedoctrine of reasonable use ... affords some measure of protection toproperty now existing, and greater justification for the attempt to makenew developments. It limits the right of others to such amount of wateras may be necessary for some useful purpose in connection with the landfrom which it is taken."); Alphonzo E. Bell Corp. v. Bell View OilSyndicate, 76 P.2d 167, 174 (Cal. Dist. Ct. App. 1938) ("The commonsupply, or common right, or correlative right is expressly limited tothe right of each individual surface owner to take from the oil stratalying beneath his properties, oil, gas, and other hyrdrocarbonsintercepted by wells sunk beneath his own property, in such a manner asnot to commit waste."); Cason v. Fla. Power Co., 76 So. 535, 536(Fla. 1917) ("[E]ach landowner is restricted to a reasonable use ofhis property as it affects subsurface waters passing to or from the landof another."); Mfrs.' Gas & Oil Co. v. Ind. Natural Gas& Oil Co., 57 N.E. 912 (Ind. 1900) (holding suit for injunctionagainst the use of a pump and other artificial means to increase theflow of natural gas stated a cause of action); Schenk v. City of AnnArbor, 163 N.W. 109 (Mich. 1917) (affirming damages award for reductionin water supply caused by defendant municipality's operation ofwater pump); Erickson v. Crookston Waterworks, Power & Light Co.,111 N.W. 391, 395 (Minn. 1907) (holding actionable the defendant'suse of "artificial force in pumping the basin of supply to a lowlevel," which "deprive[d] the plaintiff of pure water providedin the natural use of his artesian well" and thereby"indirectly compel[led] him to buy from" the defendant); Olsonv. City of Wahoo, 248 N.W. 304, 308 (Neb. 1933) (holding "the ownerof land ... cannot extract and appropriate" subterranean waters"in excess of a reasonable and beneficial use upon the land whichhe owns, especially if such use is injurious to others who havesubstantial rights to the waters" and further that "if thenatural underground supply is insufficient for all owners, each isentitled to a reasonable proportion of the whole"); Bassett v.Salisbury Mfg. Co., 43 N.H. 569, 577 (1862) (holding "anyinterference by one land-owner with the natural drainage, injurious tothe land of another, and not reasonable, is unjustifiable" andtherefore actionable); Hathorn v. Natural Carbonic Gas Co., 87 N.E. 504,507-08 (N.Y. 1909) (holding use of "pumps and other apparatus forthe purpose of accelerating and increasing the flow of subterraneanpercolating waters and gas through deep wells" may constitute"unreasonable and improper conduct" for which plaintiff has"sufficient cause for appeal to, and relief by, a court ofequity"); Forbell v. City of New York, 58 N.E. 644 (N.Y. 1900)(holding use of wells and pumping station to withdraw and market largequantities of water thereby lowering the underground water is actionablyunreasonable); Rouse v. City of Kinston, 123 S.E. 482, 492 (N.C. 1924)(observing "[w]ater is a fluid, mobile, unstable" andaffirming judgment for unreasonably withdrawing large quantities ofwater from deep wells and transmitting by pipe to customers therebydrying up the wells on a neighboring parcel); Cline v. Am. AggregatesCorp., 474 N.E.2d 324, 327 (Ohio 1984) (adopting reasonable use doctrinefor "the resolution of ground water conflicts"); Canada v.City of Shawnee, 64 P.2d 694, 696 (Okl. 1936) (holding pumping"[e]normous volumes of water ... from under the lands of thedefendant and of plaintiffs" for transport by pipeline to customersthereby drying up "the wells on all of plaintiffs' lands"actionably unreasonable); Rothrauff v. Sinking Spring Water Co., 14 A.2d87, 90 (Pa. 1940) (holding "the diversion or sale to others awayfrom the land" of subsurface water that "impairs the supply ofa spring or well on the property of another ... is not for a'lawful purpose' within the general rule concerningpercolating waters, but constitutes an actionable wrong for whichdamages are recoverable"); Horne v. Utah Oil Ref. Co., 202 P. 815,817-18 (Utah 1921) (holding that pumping large quantities of water fromartisanal basin "to be conducted and conveyed away to[defendant's] oil refinery beyond the boundaries of [the] artesiandistrict, there to be used for commercial and manufacturingpurposes" is actionably unreasonable); Pence v. Carney, 52 S.E.702, 706 (W. Va. 1905) (holding "unreasonable and nonbeneficialuse" of subsurface water actionable, but pumping and wasting ofwaters that is "merely temporary, and done in good faith, for thepurpose of completing the well for legitimate use" is notunreasonable and nonbeneficial use); State v. Michels Pipeline Constr.,Inc., 217 N.W.2d 339, 351 (Wis. 1974) (holding the cause of unreasonableharm through lowering the water table or reducing artesian pressure bywithdrawing subsurface water actionable). The opinion in Katz v.Walkinshaw notes that its holding might or might not properly be appliedto oil in another case. 74 P. at 772-73. The holding in Alphonzo E. BellCorp. v. Bell View Oil Syndicate can also be explained by the doctrineof trespass. 6 P.2d 167. The Maryland Court of Appeals has expresslyreserved the unreasonable exploitation question. Finley, 248 A.2d at113-15 (Md. 1968) (declining to decide whether unreasonable exploitationof subsurface water is actionable because a quarrying company'sremoval of subsurface water using a pump is not unreasonable and therewas "no contention or proof ... that there was any ... otherunreasonable use").

(75.) Barnard v. Monongahela Natural Gas Co., 65 A. 801 (Pa. Com.Pl. 1906) (holding location of wells near the property line notactionable), aff'd per curiam, 65 A. 801 (Pa. 1907); Jones v.Forest Oil Co., 47 Pitt. L.J. 58 (Pa. Com. Pl. 1899) (holding use of agas pump which diminished the production of adjoining landowners unlessthose landowners also employed a gas pump not actionable), aff'dper curiam, 44 A. 1074 (Pa. 1900); Gain v. S. Penn Oil Co., 86 S.E. 883,885 (W. Va. 1915) (implying in dispute between lessor and lessee overlocation of oil well that landowners may locate oil wells "near thedivision line"); United Carbon Co. v. Campbellsville Gas Co., 18S.W.2d. 1110, 1112-14 (Ky. 1929) (abrogating the Kentucky tenancy incommon rule with citations to the Summers treatise and the cases itcites, especially Jones, by holding the use of compressor privilegedwithout consideration of tenancy in common ownership of the naturalgas); Drinkwine v. State, 300 A.2d 616, 618 (Vt. 1973) (affirmingdismissal of complaint asserting unreasonable exploitation because"no correlative rights exist between adjoining landowners inpercolating waters"); Sipriano v. Great Spring Waters of Am., Inc.,1 S.W.3d 75 (Tex. 1999) (refusing to "limit the common-law right ofa surface owner to take water from a common reservoir by imposingliability on landowners who 'unreasonably' use groundwater totheir neighbors' detriment.").

(76.) Mfrs.' Gas & Oil, 57 N.E. at 912-13.

(77.) People's Gas Co. v. Tyner, 31 N.E. 59 (Ind. 1892)(affirming grant of a temporary injunction against the use ofnitroglycerin to initiate explosions aimed at increasing production notbecause it would artificially accelerate drainage of oil, as plaintiffhad contended, but because the detonations might be hazardous to lifeand property).

(78.) Mfrs.' Gas & Oil, 57 N.E. at 917 (reversing judgment"with instructions to overrule the demurrer").

(79.) Id. at 915-17.

(80.) Id. at 917. The court cites Blackstone for the "unity ofpossession" proposition. Id. (citing 2 William Blackstone,Commentaries * 182).

(81.) Id. at 915.

(82.) Forbell v. City of New York, 58 N.E. 644, 645 (N.Y. 1900).

(83.) Id. at 645-46.

(84.) Hathorn v. Natural Carbonic Gas Co., 87 N.E. 504, 507 08(N.Y. 1909) (holding use of "pumps and other apparatus for thepurpose of accelerating and increasing the flow of subterraneanpercolating waters and gas through deep wells" may constitute"unreasonable and improper conduct" for which plaintiff has"sufficient cause for appeal to, and relief by, a court ofequity").

(85.) Kelly v. Ohio Oil Co. 49 N.E. 399 (Ohio 1897); Jones v.Forest Oil Co., 47 Pitt. L.J. 58 (Pa. Com. Pl. 1899) (holding use of agas pump which diminished the production of adjoining landowners unlessthose landowners also employed a gas pump not actionable), aff'dper curiam 44 A. 1074 (Pa. 1900); Barnard v. Monongahela Natural GasCo., 216 Pa. 362 (Pa. Com. P1. 1906) (holding location of wells near theproperty line not actionable), aff'd per curiam 65 A. 801 (Pa.1907); see 1 Summers Oil and Gas [section] 3:2 (3d ed. 2012) ("ThePennsylvania court in Jones[, 47 Pitt. L.J. 58,] refused to enjoin thedefendant from operating a pump which was drawing oil from theplaintiff's land. Likewise the Pennsylvania court in Barnard[, 216Pa. 362], and the Ohio court in Kelley [, 49 N.E. 399], refused toenjoin the operation of oil wells near boundary lines, although thecomplainants contended that oil was being taken from their lands."(footnotes omitted)).

(86.) Kelly, 49 N.E. at 401.

(87.) Frazier v. Brown, 12 Ohio St. 294, 308 (1861) (quotingChatfield v. Wilson, 28 Vt. 49 (1855)), overruled by Cline v. Am.Aggregates Corp., 15 Ohio St. 3d 384, 387 (1984). The Frazier courtsuggested the only possible causes of action Ohio might recognize wouldbe for interference with subsurface water motivated by "unmixedmalice" and for interference with underground streams inwell-defined channels. Id. at 304. The Ohio Supreme Court adopted acause of action for interference with underground streams inwell-defined channels in 1930. Logan Gas Co. v. Glasgo, 170 N.E. 874(Ohio 1930).

(88.) Cline, 474 N.E.2d at 327 ("Finding th[e] reasonable usedoctrine to be much more equitable in the resolution of ground waterconflicts, this court overrules Frazier v. Brown ... and all its progenyand adopts Section 858 of the Restatement of the Law 2d, Torts, as thecommon law of Ohio.").

(89.) Frazier, 12 Ohio St. at 308 (quoting Chatfield v. Wilson, 28Vt. 49 (1855)).

(90.) Jones v. Forest Oil Co., 44 A. 1074 (Pa. 1900) (affirmingJones v. Forest Oil Co., 47 Pitt. L.J. 58 (Pa. Com. Pl. 1899)); Barnardv. Monongahela Natural Gas Co., 65 A. 801 (Pa. 1907) (affirming Barnardv. Monongahela Natural Gas Co., 216 Pa. 362 (Pa. Com. Pl. 1906)). Thesewere cases in equity so the appeals at the time were exclusively in thejurisdiction of the Pennsylvania Supreme Court. It is important to clearup their procedural nature, which has been greatly misstated. In bothcases the text of the affirmed lower court decisions were set out in thereporter before the court's opinion. The opinions themselves areshort affirmances. In Jones: "Though this particular question issomewhat of a novelty, the principles which control it are veryfamiliar, and perfectly well settled. They are well expressed in theopinion of the learned court below, and, on the findings of fact andconclusions of law there contained, we affirm the decree." Jones v.Forest Oil Co., 44 A. 1074, 1076 (Pa. 1900). In Barnard: "Decreeaffirmed on the opinion of the court below." Barnard v. MonongahelaNatural Gas Co., 65 A. 801, 803 (Pa. 1907). Yet commentators and courtshave for some reason treated the lower court opinions as if they wereissued by the Pennsylvania Supreme Court, even going so far as to quoteextensively from the excerpts of the lower court decision while citingto the Supreme Court's per curiam affirmance. See, e.g., W.L.Summers, Property in Oil and Gas. 29 YALE L.J. 174, 177 (1919) ("Inanother case where the question was of the right of the owner of an oilwell to pump oil from his well regardless of injury to his neighbor, theSupreme Court of Pennsylvania apparently realized that the absoluteownership doctrine in the sense of giving an absolute right to takecould not be applied so they reverted to the theory that'possession of the land is not necessarily possession of the oiland gas,' and concluded 'that the property of the owner of thelauds in oil and gas is not absolute until it is actually within hisgrasp and brought to the surface.'" (erroneously quotingJones, 44 A. 1074)); Bruce M. Kramer & Owen L. Anderson, The Rule ofCapture--An Oil and Gas Perspective, 35 Envtl. L. 899, 911 (2005)("In Jones v. Forest Oil Co., the Pennsylvania Supreme Court had todetermine whether the rule of capture gave the owner the power to use a'gas pump' to artificially increase production and cause oilto drain from underneath the adjacent owner's land. ... The courtused a percolating water case to support the proposition that a personmay capture water, and by analogy gas, by the 'exercise of all theskill and invention of which man is capable.' ... The court used ananalogy to the offset drilling rule by concluding that, since all oiloperators can afford gas pump technology, the remedy does not lie in thecourts but in the self-help of getting one's own gas pump tocounter the alleged drainage.'" (footnote omitted)(erroneously quoting Jones, 44 A. 1074)). In Pennsylvania, per curiamorders have no precedential effect. Further, when other courts andcommentators treat these decisions as issuing directly from a statesupreme court, and not just any supreme court, but the supreme court ofthe state in which Drake made his famous discovery, they are affordedfar more persuasive authority than they deserve.

(91.) Jones v. Forest Oil Co., 47 Pitt. L.J. 58 (Pa. Com. Pl.1899).

(92.) Id. at 59.

(93.) Id.

(94.) Id.

(95.) Id.

(96.) Id.

(97.) Id. at 60.

(98.) Jones v. Forest Oil Co., 44 A. 1074 (Pa. 1900).

(99.) 1 W. W. Thornton, The Law Relating to Oil and Gas (3d ed.1918) [section] 32 (citing Jones for the proposition that the "theright to pump [oil wells] clearly exists"); Walter L. Summers, ATreatise on the Law of Oil and Gas [section] 24, at 74 (1927)("[A]ttempts have been made to stop operations on adjoining lands,on the theory that the pumping of oil wells, thereby producing anunnatural flow of the oil, was violative of complainant's rights;but in no case has a restraint been placed upon the pumping ofoil." (citing Jones and Higgins Oil & Fuel)); 1 Summers Oil andGas [section] 3:2 (3d ed. 2012) (citing Jones as an example of an earlycase that "declared that the landowner was legally privileged totake oil and gas even though he drained oil and gas from the lands ofhis neighbor"); Kramer & Anderson, supra note 93, at 911("The use of artificial means to increase production, and therebyincrease drainage from across property lines, was held to be a lawfulact under the rule of capture."); id. at 919 n. 116 (characterizingJones as "holding that an oil and gas operator may use anyappliances known to the trade to make well production as large aspossible").

(100.) Barnard v. Monongahela Natural Gas Co., 216 Pa. 362 (Pa.Cont. Pl. 1906).

(101.) Id. at 364-65. To its credit, the common pleas court wasdispleased with the law it announced, as revealed by the discussion ofthe court's role as a lower court unable to declare "whatought to be the law," the mention of wasted line-protectingexpenditures, and the thinly veiled plea to the legislature and thePennsylvania Supreme Court to craft a better rule. Id.

(102.) Barnard v. Monongahela Natural Gas Co., 65 A. 801,803 (Pa.1907).

(103.) Barnard v. Monongahela Natural Gas Co., 216 Pa. 362, 364(Pa. Com. Pl. 1906) ("The Supreme Court ... may declare 'whatought to be the law' to be henceforth 'the law,' but thelower courts have no such authority."); id. at 365 ("This maynot be the best rule; but neither the legislature nor our highest courthas given us any better.").

(104.) Id. at 365.

(105.) If it were simply close to a line and not in a corner, itcould be expected to draw no more than half the oil from beyond theboundary.

(106.) Id. This suggests the lessee in such a circ*mstance shouldhave an obligation to drill an offset well, but the common pleas courtseparately held it did not. Id.

(107.) Id.

(108.) Id.

(109.) Sipriano v. Great Spring Waters of Am., Inc., 1 S.W.3d 75(Tex. 1999).

(110.) Brown v. Humble Oil & Ref. Co., 83 S.W.2d 935, 940 (Tex.1935).

(111.) Elliff v. Texon Drilling Co., 210 S.W.2d 558, 562 (Tex.1948) (holding "there is no liability for reasonable and legitimatedrainage from the common pool" (emphasis added)).

(112.) Coastal Oil & Gas Corp. v. Garza Energy Trust, 268S.W.3d 1, 16 (Tex. 2008).

(113.) Higgins Oil & Fuel Co. v. Guaranty Oil Co., 82 So. 206,211 (La. 1919).

(114.) Id. at 207.

(115.) Like Ohio, Pennsylvania recognized the unreasonableexploitation of subsurface water action subsequent to its decisionlimiting actions for unreasonable exploitation of oil and gas. Rothrauffv. Sinking Spring Water Co., 14 A.2d 87, 90 (Pa. 1940) (holding that the"diversion or sale to others away from the land" of subsurfacewater that "impairs the supply of a spring or well on the propertyof another ... is not for a 'lawful purpose' within thegeneral rule concerning percolating waters, but constitutes anactionable wrong for which damages are recoverable"). But unlikeOhio, there was no prior precedent that rejected an action ofunreasonable exploitation of subsurface water, thus the later decisioncannot be said to undermine the earlier per curiam affirmances. Theaffirmances leave some inconsistency between the treatments of differentsubsurface fluids in the state, but Rothrauff involved conduct that hasonly ever been found unreasonable in water cases. Thus, it may be thatin Pennsylvania there is no cause of action for unreasonable welllocation or unreasonable method of extraction even for water.

(116.) That theory is elaborated in greater detail in Peter M.Gerhart, Property Law And Social Cohesion (Cambridge Univ. Pressforthcoming 2013).

(117.) This is especially important in the law of subsurfaceresource pools, as noted below. See infra Part II.B.4.

(118.) Alienability is as important as the right to exclude formarkets to exist, but it is often assumed in discussions of property.This is an ahistorical view, as the recognition of private propertypreceded the recognition of the right to alienate. Even today for someproperty, such as the human body, the law recognizes a right to excludebut not a right to alienate. This alienability question is at the heartof scores of early oil and gas cases and the inability to distinguishthe judicial treatment of the alienability of oil and gas exploitationrights from the nature of the rights themselves. The alienability casesare collected in Part III, but as the questions they address aredistinct, they are not used to analyze the nature of property paradigmthat common law courts recognized in subsurface resource pools.

(119.) The power of eminent domain recognizes that some publicgoods may be under produced without government action. Eminent domain isbut one exercise of government power to increase production of publicgoods. Government may also delegate the power to tax those who benefitfrom the production of the public good. See R.H. Coase, The Lighthousein Economics, 17 J.L. & Econ. 357, 367-72 (1974) (discussing such aplan while arguably failing to recognize the significance of thetaxation delegation). Under another approach that was once far morefrequently utilized, government can recognize in private individualsprescriptive rights to capture the public goods they generate. Thus, anindividual who first invests in a ferry to an undeveloped island couldbe permitted to sue those who might attempt to compete with the originalferry owner once the island is developed. See Cheren, supra note 13, at574 n.74 (recounting an old English common law nuisance action filed bythe owner of an established ferry against an upstart).

(120.) DUKEMINIER ET AL., supra note 2, at 53 (suggesting that,like wild animals, groundwater, oil, and gas are "owned incommon"); id. at 36 ("[B]ecause ownership of wild animals hadlong been settled in terms of the rule of capture, the courts reasonedthat ownership of oil and gas should be determined in the samemanner.").

(121.) Id. at 36.

(122.) MDs.' Gas &, Oil Co. v. Ind. Natural Gas & OilCo., 57 N.E. 912, 915 (Ind. 1900).

(123.) See infra Part II.B.4.

(124.) Hammonds v. Cent. Ky. Natural Gas Co., 75 S.W.2d 204, 206(Ky. 1934) ("[I]f in fact the gas turned loose in the earthwandered into the plaintiff's land, the defendant is not liable toher for the value of the use of her property, for the company ceased tobe the exclusive owner of the whole of the gas--it again became mineralferae naturae."), overruled by Tex. Am. Energy Corp. v. CitizensFid. Bank & Trust Co., 736 S.W.2d 25 (Ky. 1987); see also DUKEMINIERET AL., supra note 2, at 37 (criticizing the result in Hammonds).

(125.) RESTATEMENT (SECOND) OF TORTS, ch. 41, topic 4, intro, note,at 256 (1977); see also DUKEM1NIER ET AL., supra note 2, at 36 37(noting that reinjection of underground resources "does notordinarily give rise to liability for the use and occupation of parts ofa reservoir underlying the land of neighbors").

(126.) Canada v. City of Shawnee, 64 P.2d 694, 699 (Okla. 1936).

(127.) Finley v. Teeter Stone, Inc., 248 A.2d 106, 116-17 (Md.1968).

(128.) RESTATEMENT (SECOND) OF TORTS [section] 818 (1939) ("Tothe extent that a person is not liable for withdrawing subterraneanwaters from the land of another, he is not liable for a subsidence ofthe other's land which is caused by the withdrawal."); see,e.g., N.Y. Cont'l ,Jewell Filtration Co. v. Jones, a7 App. D.C.511, 512, 518 (1911) (reversing judgment for land subsidence andcracking of house's foundation caused by the withdrawal ofsubsurface water in the course of constructing a tunnel); Elster v. Cityof Springfield, 30 N.E. 274, 278 79 (Ohio 1892) (holding that landownercannot be prevented from legitimate use of land even if the effect is todrain a reservoir used by an adjoining landowner); bangbrook Props.,Ltd. v. Surrey Cnty. Council, [1969] 3 All E.R. 1424 (Ch.) 1424 (Eng.)(holding that plaintiffs did not have a claim against defendants forsettlement damage caused by defendant removing water beneathplaintiff's land).

(129.) Friendswood Dev. Co. v. Smith-Sw. Indus., 576 S.W.2d 21, 31(Tex. 1978) (Pope, J., dissenting) (citations omitted). To be fair,Texas has at least employed several exceptions to the erroneous rule.Id. at 30 (majority opinion) (adopting rule going forward that "ifthe landowner's manner of withdrawing ground water from his land isnegligent, willfully wasteful, or for the purpose of malicious injury,and such conduct is a proximate cause of the subsidence of the land ofothers, he will be liable for the consequences of his conduct").

(130.) The dissent in Friendswood Development notes that"[r]espectable American authority supports the rule that alandowner has the right to the support afforded by subterraneanwaters." Id. at 32 (Pope, J., dissenting) (citing N.Y. Cent. R. Co.v. Marinucci Bros. & Co., 149 N.E.2d 680, 682 (Mass. 1958); Garnerv. Town of Milton, 195 N.E.2d 65, 67 (Mass. 1964); Cabot v. Kingman, 44N.E. 344, 345 (Mass. 1896); Bjorvatn v. Pac. Mech. Constr., Inc., 464P.2d 432, 434 35 (Wash. 1970) (en banc); Muskatell v. City of Seattle,116 P.2d 363, 371 (Wash. 1941); Farnandis v. Great N. Ry. Co., 84 P. 18,21 22 (Wash. 1906); 1 AM. JUR. 2D Adjoining Landowners [section] 80(1962); 2 C.J.S. Adjoining Landowners [section] 38 (1972); Annotation,Right of Property Owner to Repel or Remove Flood Water from Building, 4A.L.R. 1104 (1919)); see also Drummond v. White Oak Fuel Co., 140 S.E.57, 60 61 (W. Va. 1927) (holding that diversion of snbsurface waters asa result of mining on adjacent land does not give rise to a claim ifsufficient support leaves the surface undisturbed).

(131.) Brown v. Spilman, 155 U.S. 665, 673 (1895); Osborn v. Ark.Territorial Oil & Gas Co., 146 S.W. 122, 125 (Ark. 1912); Triger v.Carter Oil Co., 23 N.E.2d 55, 56 (III. 1939); Watford Oil & Gas Co.v. Shipman, 84 N.E. 53, 54 (III. 1908); Union Gas & Oil Co. v.Fyffe, 294 S.W. 176, 178 (Ky. 1927); Frost-Johnson Lumber Co. v. NaborsOil & Gas Co., 88 So. 723 (La. 1920); De Moss v. Sample, 78 So. 482,482 83 (La. 1918); Rives v. Gulf Ref. Co. of La., 62 So. 623, 624 25(La. 1913); Wagner v. Mallory, 62 N.E. 584, 585 (N.Y. 1902)); Rich v.Doneghey, 177 P. 86, 89, 100 (Okla. 1918); Hamilton v. Foster, 116 A.50, 52 (Pa. 1922); Mandle v. Gharing, 100 A. 535, 537 (Pa. 1917);Kleppner v. Lemon, 35 A. 109, 110 (Pa. 1896); Blakley v. Marshall, 34 A.564, 565 (Pa. 1896); Wettengel v. Gormley, 28 A. 934, 935 (Pa. 1894);Brown v. Vandergrift, 80 Pa. 142, 142 (1875); Funk v. Haldeman, 53 Pa.229, 249 (1866); Kier v. Peterson, 41 Pa. 357, 360 62 (1861)); Murray v.Allard, 43 S.W. 355, 355 (Tenn. 1897); Bender v. Brooks, 127 S.W. 168,168 (Tex. 1910); Gillette v. Mitchell, 214 S.W. 619, 622 (Tex. Civ. App.1918); Jennings v. S. Carbon Co., 80 S.E. 368, 372 (W. Va. 1913); Hallv. S. Penn Oil Co., 76 S.E. 124, 124 25 (W. Va. 1912); Rymer v. S. PennOil Co., 46 S.E. 559, 565 (W. Va. 1904).

(132.) Isom v. Rex Crude Oil Co., 82 P. 317, 318 (Cal. 1905); OhioOil Co. v. Daughetee, 88 N.E. 818, 820 (Ill. 1909); Rupel v. Ohio OilCo., 95 N.E. 225, 226 (Ind. 1911); Lanyon Zinc Co. v. Freeman, 75 P.995, 997 (Kan. 1904); Gerkins v. Ky. Salt Co., 39 S.W. 444, 444 (Ky.1897); Marshall v. Mellon, 36 A. 201, 201 (Pa. 1897); Appeal ofStoughton, 88 Pa. 198, 201-02 (1878); Haskell v. Sutton, 44 S.E 533, 538(W. Va. 1903); Wilson v. Youst, 28 S.E. 781, 781 (W. Va. 1897);Williamson v. Jones, 19 S.E. 436, 436 (W. Va. 1894); Wood Cnty.Petroleum Co. v. W. Va. Transp. Co., 28 W. Va. 210, 219 (1886).

(133.) Stephens Cnty. v. Mid-Kan. Oil & Gas Co., 254 S.W. 290(Tex. 1923); Texas Co. v. Daugherty, 176 S.W. 717 (Tex. 1915).

(134.) Some states do not delay title under an ownership-in-placetheory of ownership of subsurface pool resources. See, e.g., Mid-Kan.Oil & Gas, 254 S.W. at 292 ("[G]as and oil in place areminerals and realty, subject to ownership, severance, and sale, whileembedded in the sands or rocks beneath the earth's surface, in likemanner and to the same extent as is coal or any other solidmineral."); Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 831 32(Tex. 2012) (determining as a matter of first impression in a takingscase that groundwater is owned in place). Other states delay title undera no-ownership-in-place theory. See, e.g., Sun Oil Co. v. Oswell, 62 So.2d 783, 787 (Ala. 1953); NCNB Tex. Nat'l Bank, N.A.v. West, 631 So.2d 212, 223 (Ala. 1993); Triger v. Carter Oil Co., 23 N.E.2d 55, 56(Ill. 1939); Ohio Oil Co. v. Daughetee, 88 N.E. 818, 820 (III. 1909);Watford Oil & Gas Co. v. Shipman, 84 N.E. 53, 54 (III. 1908); Statev. Ohio Oil Co., 49 N.E. 809, 812 (Ind. 1898).

(135.) Gillette v. Mitchell, 214 S.W. 619, 622 (Tex. Civ. App.1918). Along these lines, a plaintiff's attempted attack on thevalidity of an oil rights conveyance based on "[t]he doctrine thatthe owner of land has no property right in the oil or gas beneath thesurface until he has reduced it to possession" was succinctlyrebuffed by the Supreme Court of Louisiana:

 The doctrine ... in no manner denies to such owner the exclusive right to the use of the surface for the purposes of such reduction [of oil and gas to possession], or for any other purpose ... but, to the contrary, concedes that right, as inherent in the title to the land, ... and the right may be sold, as may be any other right, and may carry with it the right to the oil and gas that may be found and reduced to possession.

Frost-Johnson Lumber Co. v. Salling's Heirs, 91 So. 207, 213(La. 1920).

(136.) Gillette, 214 S.W. at 622.

(137.) Emily Sherwin, Two- and Three-Dimensional Property Rights,29 Ariz. ST. L.J. 1075, 1093-94 (1997) (noting that most modern propertyrights are defined by the object and the conditions for its ownershipbut not the incidents of ownership, leaving that final piece subject tojudicial determination). As a corollary to this indeterminate framework,courts in the exercise of their discretion more readily consider othershared owners' interests than neighbors' interest whendefining the incidents of property ownership.

(138.) But see, e.g., Eyerman v. Mercantile Trust Co., 524 S.W.2d210, 217 (Mo. Ct. App. 1975) (enjoining the demolition ofdecedent's house, which she had prescribed in her will, based onthe harmful effects of the demolition on the community, including theneighbors who brought the action).

(139.) See Roderick M. Hills, Jr. & David N. Schleicher,Balancing the "Zoning Budget," 62 CASE W. RES. L. REV. 81, 97(2011) (citing KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 2225 (2d ed. 1963)).

(140.) Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.,114 So. 2d 357, 358 (Fla. Dist. Ct. App. 1959). For ProfessorGerhart's property casebook, Property: Our Social Institution, wesought a picture of the shadow cast over the pool. As soon as thesubject was broached with a member of the Eden Roc staff, sheimmediately responded "you are referring to the spite wall."She also indicated that finding a picture in the archive would bedifficult, as any pictures showing the shadow over the pool would havebeen destroyed. Luckily, she found one picture that shows the shadowcreeping ominously toward the pool in early afternoon. See PETER M.GERHART, PROPERTY: OUR SOCIAL INSTITUTION 355 (2012), available atwww.availableat.org.

(141.) Just as tenants in common have an undivided interest in theproperty, sharing owners have a unity of interest in the pool becauseexploitation of any part of the pool potentially affects every part ofthe pool. Just as tenants in common have individual interests in theproperty by virtue of their right to seek a partition, sharing ownershave an individual interest by virtue of being surface owners. Fortenants in common the individual interest is determined by theconveyance to the tenants. For sharing owners, the individual interestis determined by the percentage of relevant surface area each owner has.

(142.) Louisville Gas Co. v. Ky. Heating Co., 111 S.W. 374, 376(Ky. 1908). This exposition is probably so superior because Kentucky didnot adopt Acton until fifteen years later. Nourse v. Andrews, 255 S.W.84, 86 (Ky. 1923). Typically, adoption of a nuisance exception forinjuries to subsurface resource pools preceded common law considerationof a dispute over the reasonableness of exploitation of a subsurfaceresource pools. As this Part demonstrates, recognition of sharedownership is not inconsistent with this nuisance exception because itresults only in an elimination of accounting. Still, accounting is aright almost universally available for tenants in common, and thereforeit makes sense that the prior foreclosure of the accounting remedy in astate would cramp the language in subsequent opinions recognizing otherrights of shared ownership between surface owners.

(143.) Mfrs.' Gas & Oil Co. v. Ind. Natural Gas & OilCo., 57 N.E. 912, 917 (Ind. 1900).

(144.) See generally Wronski v. Sun Oil Co., 279 N.W.2d 564 (Mich.Ct. App. 1979); Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex.2012); Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1(Tex. 2008); 1 EUGENE KUNTZ, A TREATISE ON THE LAW OF OIL AND GAS[section] 4.3, at 120 22 (1987); Kramer &; Anderson, supra note 93;R.O. Kellam, A Century of Correlative Rights, 12 BAYLOR L. REV. 1(1960); Theresa D. Poindexter, Comment, Correlative Rights Doctrine, Notthe Rule of Capture, Provides Correct Analysis for Resolving HydraulicFracturing Cases, 48 WASHBURN L.J. 755 (2009).

(145.) Cason v. Fla. Power Co., 76 So. 535, 536 (Fla. 1917).

(146.) Gruger v. Phillips Petroleum Co., 135 P. 2d 485, 488-89(Okla. 1943) ("Assuming that there might be circ*mstances ... whichwould authorize the district court, in the exercise of its equitablepowers, to grant relief to such owner, which question is not now beforeus and we do not decide, we think it is clear that no such state offacts is stated in the petition. We conclude that the petition does notcontain a statement of facts making it the duty of the defendant toaccount to it for oil and gas alleged to have been drained from undertheir lots, and the demurrer was properly sustained."); Canada v.City of Shawnee, 64 P.2d 694, 696 (Okla. 1936) ("This does not meanthat there shall be an apportionment of subterranean percolating waterbetween adjacent landowners, for such a thing is often, if not always,impossible .... ").

(147.) McCoy v. Ark. Natural Gas Co., 165 So. 632, 633 (La. 1936).

(148.) This does not mean that the Acton exception for a nuisanceaction would be removed for interferences that occur from flowing water.Accounting actions in oil and gas cases in a pool or shale deposit posefewer problems for courts because they are in a determinable space andwill at some point be exhausted. Some injuries from the use ofsubsurface resources are likely to remain damnum absque injuria when thediversions cannot be adequately measured.

(149.) Brown v. Humble Oil & Ref. Co., 83 S.W.2d 935, 940 (Tex.1935).

(150.) In Coastal Oil & Gas, an expert "testified thatbecause of the fracing operation on the Coastal No. 1 well, 25 35% ofthe gas it produced drained from Share 13." Coastal Oil & GasCorp. v. Garza Energy Trust, 268 S.W.3d 1, 8 (Tex. 2008).

(151.) Ohio Oil Co. v. Indiana, 177 U.S. 190 (1900).

(152.) Id. at 201.

(153.) Id. at 208.

(154.) Id. at 208-09 (quoting Geer v. Connecticut, 161 U.S. 519,525 (1896), overruled by Hughes v. Oklahoma, 441 U.S. 322 (1979)).

(155.) Id. at 209. The Supreme Court subsequently missed thiscrucial distinction when reviewing this portion of the case in Walls v.Midland Carbon Co. by reporting that in the earlier case "theanalogy between oil and gas and animals ferae naturae wasdeclared." Walls v. Midland Carbon Co., 254 U.S. 300, 317 (1920).As the Court made clear in Ohio Oil Co., if there were perfect analogybetween oil and gas and wild animals, then oil and gas would be commonsproperty subject to regulation at the absolute discretion of the statesas sovereign authority. The Court in Ohio Oil Co. v. Indiana addressedthe commons property regime and the analogy to wild animals because theIndiana Supreme Court upheld the waste statute on the basis of thisanalogy in a case cited to by the summary affirmances of both the caseand the companion case below. Ohio Oil Co. v. State, 50 N.E. 1125 (Ind.1898) (summarily affirming judgment with citation to State v. Ohio OilCo., 49 N.E. 809 (Ind. 1898)); Ohio Oil Co. v. State, 50 N.E. 1124 (Ind.1898) (companion case below sumlnarily affirming judgment with citationto State v. Ohio Oil Co., 49 N.E. 809 (Ind. 1898)); State v. Ohio OilCo., 49 N.E. 809, 812 (Ind. 1898) (holding waste statute constitutionalby analogy to commons property regulations of wild animals and fish).

(156.) Id.

(157.) The classification of oil and gas as shared, not common,property for constitutional purposes also limits a state's power toregulate interstate transmission of oil and gas. See Kan. Natural GasCo. v. Haskell, 172 F. 545, 564 (C.C.E.D. Okla. 1909) ("IT]hecontention of defendants that the natural gas found within theterritorial limits of the state is the common heritage of the people ofthe state, which may be conserved and preserved by the state as trusteeof those things in which the people have a common interest, as flowingstreams, wild animal life, etc., is unsound and must be denied.").The states have upheld similar waste statutes before and after thedecision in Ohio Oil Co. v. Indiana. Townsend v. State, 47 N.E. 19, 2023 (Ind. 1897) (holding waste statute constitutional by analogy tovarious commons property regulations, namely wild animals, fish, andbeach sand); People ex rel. Stevenot v. Associated Oil Co., 294 P. 717,723 (Cal. 1930) (in bank) ("Whatever refinements may be suggestedas to the definition of the nature of the property right in gas and oilbeneath the surface and uncaptured, we are entirely satisfied that thewaste of these natural resources may be regulated and the unreasonablewaste thereof may be prohibited in the exercise of the police power ofthe state .... "). The California Supreme Court commented, perhapsinaccurately, on the nature of the class of property recognized in OhioOil Co. v. Indiana:

 The decision in that case defines the so-called correlative right not necessarily as a right to a fixed distributive or proportional share of the oil and gas underlying the surface, which no other owner of soil overlying the same reservoir may take and use beneficially, but as a coequal right to take whatever of the oil and gas can be captured, so long as waste, as defined by the statute, is not committed.

People ex rel. Stevenot, 294 P. at 722.

(158.) The limits of noncompensated regulation of shared resourceswere explored in Bernstein v. Bush, 177 P.2d 913, 918 (Cal. 1947) (inbank) ("[D]isapproval of the petitioners' proposal to drill awell in accordance with the notice of intention on file, if effective toprevent such drilling, would amount to a deprivation of thepetitioners' right, co--equal with the right of surrounding ownersand lessees, to recover their fair share of the oil and gas from thecommon source of supply, and consequently would infringe upon theconstitutional guaranties invoked.").

(159.) For example, in Coastal Oil & Gas, an expert"testified that because of the fracing operation on the Coastal No.1 well, 25-35% of the gas it produced drained from Share 13."Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 8 (Tex.2008).

(160.) Macaulay offers an apt description of an early example ofone such regulated governance regime:

 There was a Turkey Company, the members of which contributed to a general fund, and had in return the exclusive privilege of trafficking with the Levant: but those members trafficked, each on his own account: they forestalled each other; they undersold each other: one became rich; another became bankrupt. The corporation meanwhile watched over the common interest of all the members, furnished the crown with the means of maintaining an embassy at Constantinople, and placed at several important ports consuls and vice--consuls, whose business was to keep the Pacha and the Cadi in good--humour, and to arbitrate in disputes among Englishmen.

5 THOMAS BABINGTON MACAULAY, THE HISTORY OF ENGLAND FROM THEACCESSION OF JAMES THE SECOND 307 (1899). The Old East India Company wasa unit governance regime, but the New East India Company was structuredaccording to the Turkey Company model as a regulated governance regime.Id.

Peter M. Gerhart ([dagger]) & Robert D. Cheren ([doubledagger])

([dagger]) Professor of Law, Case Western Reserve University.

([double dagger]) J.D., 2013, Case Western Reserve UniversitySchool of Law.