plaintiff no longer was entitled to compel production of the well. This being so, plaintiff now is in no position to assert beneficial interests in storage gas allegedly intermixed with native gas in which plaintiff no longer had any enforceable interest.
Generally stated, the law relating to ownership of wild animals is based on possessory concepts, with title being acquired only by reduction of the animal ferae naturae to possession and being divested by loss of possession through escape and return of the animal to its natural and ferocious state. 2 Am.Jur., Animals § 8-13.
It becomes readily apparent, however, that a strict application of this analogy to the present facts is of no benefit to plaintiff's cause. To begin with, the storage gas in question has not escaped from its owners. On the contrary, it is yet very much in the possession of the storage companies, being within a welldefined storage field, the Hebron-Ellisburg Field, and being subject to the control of the storage companies through the same wells by which the gas originally had been injected into the storage pool. Westmoreland & Cambria Natural Gas Co. v. De Witt, supra; Hicks v. American Natural Gas Co., 1904, 207 Pa. 570, 57 A. 55, 65 L.R.A. 209.
Moreover, there has been no return of storage gas to its 'natural habitat,' since Southwest gas, differing materially in chemical and physical properties from native Oriskany gas, is not native to the Oriskany Snads underlying the Hebron-Ellisburg Field. Deferring to the analogy of animals ferae naturae under the circumstances of this case would no more divest a storage company of title to stored gas than a zookeeper in Pittsburgh of title to an escaped elephant. 2 Am.Jur., Animals § 13.
Particularly enlightening on the question of the general utility of the analogy of wild animals is the following language from Hamilton v. Foster, supra:
'Much of the difficulty under which appellants labor would be removed if they did not attempt to extend the comparison made in Westmoreland Natural Gas Co. v. De Witt, 130 Pa. 235, 249, 18 A. 724, 725, 5 L.R.A. 731, far beyond the purpose for which it was intended. It was there said: 'Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals ferae naturae.' The analogy is not too fanciful, when understood in the sense in which the words were used, as appears in the next sentence: 'In common with (wild) animals, and unlike other minerals, they have the power and the tendency to escape without the volition of the owner'; but the first statement, whether or not qualified by the second, does not determine that oil and gas are not capable of ownership even when in place, or may not be the subject of a grant.' 272 Pa. at page 102, 116 A. at page 52.
It seems clear from the foregoing that the Supreme Court of Pennsylvania does not subscribe to the theory that the analogy is a common denominator in all cases concerning title to gas and oil.
Also important as a guide toward the decision of the novel issue presented here are certain recent enactments of the Pennsylvania Legislature, which manifest a strong public interest in the Commonwealth in promoting the development and use of underground storage facilities. Having previously deemed the transportation and supply of natural gas to be of sufficiently great public concern to declare it a 'public use' and subject it to public utility regulation, Natural Gas Companies Act of May 29, 1885, P.L. 29, § 10, as amended, 15 P.S. § 1989 (Purdon's 1958), the Legislature recently has conferred upon gas companies the power of eminent domain for the condemnation of depleted structures for storage purposes, Gas Operations, Well-Drilling, Petroleum and Coal Mining Act of November 30, 1955, P.L. 756, 52 P.S. § 2401 (Purdon's Supp.1959),
has permitted underground storage in the vicinity of operated coal mines, Id. § 2301 et seq. (Purdon's Supp.1959), and has authorized the Department of Forests and Waters to lease lands of the Commonwealth for storage purposes, Act of August 24, 1951, P.L. 1362, § 1, as amended, 71 P.S. § 463(j) (Purdon's Supp. 1959).
In view of the foregoing, the court is of the opinion that the Supreme Court of Pennsylvania would hold that title to natural gas once having been reduced to possession is not lost by the injection of such gas into a natural underground reservoir for storage purposes.
This being so, plaintiff clearly is not entitled to the relief sought. 'Specific performance will not be decreed if it is in violation of the rights of a third person which are superior to those of the plaintiff.' Kiley v. Baker, 1942, 150 Pa. Super. 248, 251, 27 A.2d 478, 480; McDuffee v. Hestonville, M. & F. Pass. Ry. Co., 3 Cir., 1908, 162 F. 36; Restatement, Contracts § 368. Moreover, in view of the fact that the native reserve of gas in the drainage areas of both wells has long since been depleted, plaintiff is not entitled to compel production at any capacity. Colgan v. Forest Oil Company, supra; Young v. Forest Oil Company, supra.
Conclusions of Law
1. The court had jurisdiction over the matter in controversy.
2. Defendants are under no obligation to plaintiff to operate or produce either the O'Donnell Well or the Cobb Well No. 1 at their maximum capacity or to operate or produce either well to any extent or at all.
3. Defendant New York acted in good faith in reducing the production of the O'Donnell Well in January 1956, since the gas then being produced through the O'Donnell Well was gas owned by defendant Tennessee and United which they had stored in the Hebron part of the Hebron-Ellisburg Pool.
And now, Dec 29, 1960, after trial by the court without a jury, and the hearing of all the evidence, and upon the Findings of Fact and Conclusions of Law, it is ordered and directed that judgment be entered in favor of the defendants, New York State Natural Gas Corporation and Tennessee Gas Transmission Company, and against the plaintiff, Harry Faber White, together with costs.