Louis Brandeis

“ While a producer who negligently uses explosives in his operations will be liable if he causes physical damage to his neighbors' gas and oil bearing strata and thus impairs the productivity thereof, [18] the common law of the State did not, apparently, afford a remedy against depleting the common supply by wasteful taking or use of oil or gas drawn from the wells on one's own property. But since 1899 the Legislature of the State has prohibited, or curbed, certain practices in the production of gas and oil which it recognized as wasteful. ”

“ We assume, also, that the State may constitutionally prorate production in order to prevent undue drainage of gas from the reserves of well owners lacking pipe line connections. [27] If proration were lawfully applied for any such purposes, the fact that thereby other private persons would incidentally and gratuitously obtain important benefits would present no constitutional obstacle. And the fact that plaintiffs' gas is to be sold in interstate commerce would not preclude such exercise of the State's power. ”

“ Prior to the enactment of House Bill 266, [14] the property rights of the plaintiffs were substantially those conferred by the common law of the State. Under it, the owner of land has title to oil and gas in place and, likewise, to the oil and gas which migrate to formations under his land through drainge from other lands. [15] Under that rule, he may produce all the oil and gas that will flow out of the well on his land, subject to the exercise by other landowners of the same right of capture through drilling offsetting wells, so as to get their full share. ”

“ The pipe line owner, a private person, is, in effect, ordered to pay money to another private well owner for the purchase of oil which there is no wish to buy. [28] Moreover, he is thus prevented from protecting himself, to the extent that he is able to market his gas, against the losses which the court below finds are occurring and will continue to occur due to drainage from the high-pressure areas, wherein plaintiffs' wells are located, to the existing low-pressure areas, in which are located the majority of the wells not connected to pipe lines. ”

“ Indeed, they insist, as a matter of construction, that the Legislature has not done so. And House Bill 266 is so much more drastic a statute than the restrictions upon inferior uses of gas which were apparently the object of plaintiffs' efforts before the Legislature that in their present situation plaintiffs cannot fairly be said to be receiving the benefits and evading the burdens of a measure which they initiated. Moreover, plaintiffs do not assert rights under the statute which they assail. ”

“ Large and wasteful production of gas in connection with production of oil in the Panhandle field, and, more recently, in connection with the operations of plants 'stripping' the gas of its natural gasoline content, 'has resulted in the migration of tremendous quantities of natural gas from the southwestern side of the field to the northeastern side of the field. ”

“ The plaintiffs do not deny that the Legislature may confer upon the Railroad Commission also authority to prorate the total allowable production among all the individual wells which draw from the common reservoir, provided the proration is in accordance with their respective market demands and due consideration is given to existing reserves. ”

“ He is legally and, so far as appears, physically free to provide himself with a market and with transportation and marketing facilities. There is no basis for a claim that his right, or opportunity, will be interfered with by a disproportionate taking by any one of those who may legally produce. ”

“ The orders were entered under chapter 120 of the Texas Acts 1935, Forty-Fourth Legislature, Regular Session, commonly known as House Bill 266 (Vernon's Ann.Civ.St.Tex. art. 6008) . Under the orders the production of sweet gas from the plaintiffs' wells is limited to an amount below their market requirements under existing contracts, below their present production, and below the capacity of their transportation and marketing facilities. ”

“ And this Court has many times warned that one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid. See Hairston v. ”