248

FEDERAL REPORTER,

vol. 48.

a failure ofjustice, will give such third parties a hearing, irrespectiv at their Equity regards the substance, ratber than tbe form, of things. The rights and priorities of the parties to the property in tbe hanps of the receiver can be ascertained, declared, and enforced under the existinjZ bills as effectually as in any form of proceeding that might be adopted; and the, McBee bill may, without any strain upon the principles and definitions· announced by the supreme court, be ragarded;as aU'xiliary to and dependent upon the bill of the Central Trust Company. The' conclusion reached is that the motion to dismiss the McBee ,bill should be It follows also that the demurrer to and'tbe motion to dismiss the amended bill in the McBee Oase sbould both be overl'uled, and 80 ordered.

REND '11.

OIL

Co.

(C1IrCtitt Court, W. D. PetI/MI/Wama. November 18·.1Il9L)
LPBlILIMIlIrART

of an oil or gas well through a part of a coal mine from whioh allthe coal'J;iasbeen extraotedexoept what is necessary for the pmps would not by its physical damage tothe mine, or its effect as an obstruction, threaten such an iDjur,. tc:f the ooal and the right to mino it as would warrant the issuanoe of prelhninary injunction:

KINEIl-SINKING OIL AND GAS WELLS.

.. BAlIfB·

. injunction will no,lsBue 14 !'eBtrain Interference with certain deep.lylng veins. where on the affidavits it appears doubtful whe'ther those veins extend under the tract. ' , ,'
"

& SAldE-Al!TIDAVITIl.

A preUmineory injunctlou ,will not be IsBued upon numerous amdavits by miners, engineers, Ilnd, chemists tb.erewoUld be great danger of explosions in the mine fromtheelJcape of gas througb leak.sln 1\Mcaslnglikely to be caused by the falling of rockll 01' thell1lppinR' afthe earth· above. and from corrosion ,thereof by sulphur water. wl1enthese averments are contractiotedby numerous a:tndavitsequally enti1\ledto OJ'Eldlt; espec!allYBo In view, of the fact that speoial precautions are to be taken.in th!sinstance to prevent leaks, and the rurther fact that there is much douht as to the respective rijchts of and the owner of the fee.

In Equity. Bill by William·P.Rend against the Venture Oil pany to restrain'it from drilling a well througbhis coal ,mine. On motion for preliminary injunction. Overruled. D. T. WatBonjJ. S. F6l'gu8Dn, and John G. MacConnell, for tbemotion. D. K Patterson, W. F. McCook, and A. M. Todd, opposed.
REED, J. The bill alleges that plaintiff, engaged in the business ing coal, is.tbe ow-ner ofall the coal underlying a tract oiland in Allegheny county, Pa;,.togl3ther with a perpetual right ofway,orright to use the under-ground entries for the removingofsaid coal, or any other coal for which said entrieS may be cOllv.enient, and tbe right to construct any shafts that migbt be necessary or useful for, air and drainage purposes b the mining of said coal; that he is the owner of aU the veins (j)f coal under said land, including the Pittsburgh vein, the Freeport vein"and the Kittanning

REND

'I).

VENTURE OIL· CO.

249

vein, lying at varying depths below the surface; that the defendant; claiming to have permission from the owner of the surface, has entered upon the surface immediately over the said coal, and has erected a derrick, and threatens to drill a well in said land for the purpose of obtaining natural gas or oil, or both, and threatens to drill .other wells for the same pprpose in said land; that oil or gas cannot be obtained, except by drilling said wells to a depth of upwards of 2,200 feet; which will take such wells through all the veins of coal belonging to the complainant; that such wells will interfere with the removal of complainant's coal, will expose his mine to leakage of gaB from said wells, and will render the mining operations conducted by complainant in said property so hazardous to his property and employes as to very greatly injure and depreciate the value of said coal property; that it will be impossible to prevent the escape of gas from said wells into said coal mines, and the ence of such gas in the mine, by reason of its inflammable and exploSive nature, will occasion explosions and fires; that the coal under said pr0Ir. erty, with adjacent coal, constitutes the complainant's coal works and plant which he is now engaged in mining; that the defendant has nQ right to drill through oomplainant's coal; that such action on thl3 pllrt of the defendant will cause irreparable injury to the complainant. The bill prays an injunction to restrain the defendant from drilling the well which it has commenced, or, any other wells, through complainant's CQal. The case is now before the court on a motion for a preliminary injunction. There are certain well-settled rules regulating the grantillgof preliminary injunctions which must govern in passing upon this motion. They are that the complainant must show a clear legal or equitable interest or right which is to be protected; that there must be a of immediate injury to those interests or rights, and a clear necessity must be. shown of immediate protection to such interest or right, which would otherwise be seriously injured or impaired. If it appears that the preliminary injunction is not necessary to preserve interests or property in statu quo until final hearing, and the rights of the oomplainant will suffer no serious injury until that time, or that the injury threatened is of such nature that it can be remedied on final hearing,then the injunction ought not to.be granted. And so if it appears that the complainant's'rights are not sufficientlr clear, and the conBideratio.ns oirespective convenience or inconvenience to parties complainant and defendant, when balanced, show that serious injury may be done to the defendant by the granting of the injunction, and no serious injury will be done to the complainant by withholding it until final hearing, then the injuncnot to be granted. Other considerations may have at times tion been held as controlling in special cases, but the general rules, 8S I have stated, are those which have been held as governing the discretion which is to be exercised in passing upon such motions. The affidavits presented at the argument show that the coal, at the point where defendant is drilling its well, was mined out (with, the exception, perhaps, of the pillars left to support the l;\urface during the mining operations) several years ago, and active operations in that local-

250

FEDERAL REPORTER.

vol. 48

ityabandoned for the time being; tha.t the entries have fallen in, ll,nd access is difficult, if not impossible, to' that portion of the mine. Recently an entry some distance, from the "well has been cleaned out, the fallen::roek and obstructions removed,' and is now in use, as a main entry,to reach another and distant body of coal. While the deed under which oomp]l1inant holds vests in hini certain mining privilegl*l still in ,force, althtltlgh the coal may be removed, yet he is not at present exprivileges in the vicinity. of defendant's well, and it does ercising: not appear that there is' any immediate necessity for their exercise at that point. He suffers no present injury, from which he requires immediate relief, by the mere obstruction caused by the presence of defendant's casing in the space which he may be entitled to use under his deed, 01 'by the penetration of any small body of coal which he may have left intbat locality to support the surface, by. defendant's well. The well, solely as taking up so much space. does not in any way now interfere with hismining operations, and, so far as it may have been the cause of :the removal of ,a small quantity of coal by the operation of drilling; (ifit has penetrated the coa1atall,) compensation can be provided far at final hearing. What I have said hilS reference to the Pittsburgh, vein of coal. It does not appear that either the Kittanning or 'Freeport vein extends under this property, that question being left iIi doubt by the affidavits, and hence complainant is not entitled to an injunction to restrain interference with those veins of coal. 'l'hecomplainant, however, alleges that the result of the drilling of it is at all productive) to bring to the surface inflamthis well will be mable and explosive gas; that there is Weat danger that the falling of rock, or the sliding or creeping of the land above, both of which are said to freql,lently occur in coal mines'after the coal is remoyed, may break the casing of the well, causing the gas to escape into the mine, with consequent danger of explosion and loss of life' 'and property; also that the sulphur water which is found in this mine will eat and corrode the casing so that it will not retain the gas, which will hence escape into the mine. with the same danger ta life and property; that this gas will find its:way through the old workings into the present mine, although at considerable· distance from the well. To support these propositions a large number of affida.vits of coal miners, engineers, and chemists were -read on behalf of plaintiff. Affidavits on the contrary were read on behalf of defendant, made by oil operators, some of many years' ence. and by coal miners, averring the opinion that an oil or gas well could be safely drilled and operated through a coal mine. and instances were given where wells had been drilled, some of them many years ago, and operated without accident, and. although lllany of such wells have been drilled through coal and coal mines,-one affidavit putting the whole number so drilled since, oil was first discovered at 50,000.-yet defendant's affidavits fltate that there has never been an accident or disaster in a coal mine as a result of such drilling, and no instance is cited by plaintiff to sustain his theories. Defendant's affidavits also deny the effects alleged to result' from sulphur water, and defendant's counsel pro-

elf

.uNI'iED

251

Bound, which an duced at the argument 11 piece of accompanying affidavit stated had been in <;lirect contact with sulphur water for about five years in other wells, and was still in sound condition. Extra precautions have been prescribed in the contract for the drilling oithe well in qup.stlon, and a double line of casing is to be used to a depth of 25' feet below the bottom of the Pittsburgh vein of coal, the outside of the casing to be painted with a preparation said to prevent any action of sulphur water upon the iron, and the space between the two casings is to be filled up to the Pittsburgh vein with cement as an additional precaution. Under these circumstances I cannot say that there is a well-grounded apprehensi9tl of immediate injury to plaintiff's interests or nroperty which will justify the granting of a preliminary injunction. His rights can be fully protected on final hearing, if they are found t6 reqllire protection. On the other hand, while it does notappear that any immediate injury will result to plaintiff by withholdingthe injunction, it does appear that serious injury and inconvenience would result to the defendant by restraining- its further prosecution of its work. And, finally, the relative rights and duties of the plaintiff, as owner of the coal and mining privileges and the owner of the surface and underlying portion of the land, and the defendant, as his lessee, are exceedingly difficult of definition, and ought not to be hastily determined upon a prelirniaary application, especially as the state courts are at present trying to define those rights as rules of property under the law of the state of Pennsylvania. The motion for a preliminary injunction must be refused; and it is so ordered.

UNITED STATES 11. INGATE.!

(OirOUU OOUrt, S. D · .Azabama. July 28, 1891.)

1.

9.

8.

AcrIOl' BY UNITED STATE8-LA.CBEI!l.

When the United States voluntarily appear in a court of justice, they at the same time submit to the law, and place themselves upon an equality with other litigants; but this does not apply to such defenses as laches and the statute of limitationa.

BIlIIPLlIl CONTUOT CREDITOR.

A simple contract creditor, or creditor at large, is one whose claim is not reduced to judgment, or secured by a lien created either by contract or law. .

EQUITY JURISDICTION.

A court of equity interferes to aid the enforcement of a remedy at law. only when there is a debt acknowledged or established by judgment, and also an interest in the debtor's property or lien t,hereon created by contraot or law. A judgment in one district has no force in another, except, perhaps, as evidence.

4.

Ii.

JUDGMENT IN FEDERA.L COURT-EFFEOT.

JUDGMENT A.GAINST DEFAULTING COLLEOTOR,"""LuBILITY 01' SURETIES.

A judgment against a collector of internal revenue for a default does not bind the sureties on his bond. No federal statute creates a lien on the property of a collector of internal revenue or his sureties from the execution of the bond or default thereunder.

&. COLLECTOBI!l 011' INTERNA.L REVENUE-LIEN OJ' BOND.

1Reported by :Peter J. Hamilton, Esq.,

ot the MObile bar.