1. Dave Brubeck Quintet We’re All Together Again for the First Time (1973) Featuring “Take Five” (1960) Dave Brubeck, Piano * Paul Desmond, Alto Sax* Gerry Mulligan, Baritone Sax Alan Dawson, Drums * Jack Six, Bass DF Sessions This Week Review Problems 2E (XQ1: Escape) & 2I (XQ2: 1 st Poss.) Trey’s Tuesday Session Now in Room F200 Fajer’s Exam Technique Workshops: Wed. 11/5 & Tue. 11/11 both in Room F309 @ 12:30-1:50 pm

2. Oil & Gas: “Escape” Factual Settings: Hammonds v. White Gas Co. (G) uses empty pool for storage Hammonds = Dispute betw G & Surface O White = Different Problem – Reinserted Gas Leaked into Adjacent Gas Pool – Person with Interest in Adjacent Pool Wants to Pump Out Reinserted Gas Through That Pool

3. Hammonds v. C. Ky. Nat’l Gas Co. Logic of Case Hammonds (p.92): Statement of “Issue”: – “[W]hether the gas was restored to its original wild and natural statusby being replaced in a similar reservoir – “[W]hether the gas, having once been reduced to possession …, was restored to its original wild and natural status, by being replaced in a similar reservoir of nature….” Not Immediately Obvious Why This Q is Relevant to Trespass!!

4. Hammonds v. C. Ky. Nat’l Gas Co. Logic of Case 1.Natural Gas = Wild Animal 2.If Animal Escapes Back to Wild, OO Loses Property Rights 3.THUS: If Natural Gas “Escapes” Back to Wild, OO Loses Property Rights 4.OO Loses Property Rights = No Trespass Problems With Use Of Analogy Here?

5. Hammonds v. C. Ky. Nat’l Gas Co. Logic of Case PROBLEMS WITH THIS USE OF ANALOGY Court extends ACs analogy from 1 st possession to escape without any defense. – No precedent cited for specific legal Q re ownership of reinserted gas – BUT Animals Analogy treated as well-established binding precedent. – No policy discussion at all (E.g., no reference to any part of cost/benefit analysis we did in DQ2.26)

6. Hammonds v. C. Ky. Nat’l Gas Co. Logic of Case PROBLEMS WITH THIS USE OF ANALOGY Court extends ACs analogy from 1 st possession to escape without any defense. Deliberate use of reservoir while maintaining control doesn’t look like “escape” (cf. White) Even under Escape ACs, G could win – Short Distance, F’s Knowledge, Protect Industry, AR – Continued Control by G might mean no Return to NL

7. Hammonds v. C. Ky. Nat’l Gas Co. Logic of Case (URANIUM) Specific Analogy Noted by Court: – “If one capture a fox in a forest and turn it loose in another, or if he catch a fish and put it back in the stream at another point, has he not done … just what the appellee has done with the gas in this case?” – NO. More like letting fox out into walled enclosure or letting fox out having trained it to return when you call.

8. Hammonds v. C. Ky. Nat’l Gas Co. DQ2.28 Upshot of Case (URANIUM) (We did this Friday) After the case is over, what new problem does the gas company have? What is likely to happen next? Is this a good result from society’s perspective?

9. Hammonds v. C. Ky. Nat’l Gas Co. Miscellaneous Points Because of cost-benefit analysis, Ms. Hammonds isn’t very sympathetic plaintiff, so court may be looking for way for her to lose. Note Kentucky SCt in Hail (1854) describing crude oil, then sold as patent medicine, as "a peculiar liquid not necessary nor indeed suitable for the common use of man“ (p.91) Taxation Discussion (pp.93-94) not crucial for us. I’ll do a write up in theHammonds Brief for those of you who are curious. Questions on Hammonds?

10. White v. N.Y. Gas Co. BRIEF & BASIC INFORMATION DQ2.29-2.31 RADIUM : DQ2.29

11. White v. N.Y. Gas Co.: OVERVIEW (RADIUM) [Means?] P has rights to part of proceeds [Means?] from gas well (O’Donnell Well = OD) operated by Ds OD had not produced much gas for a long time. Ds & others using nearby well for storage of reinsertion gas. Reinsertion gas leaking underground into OD. – OD starts producing again – Ds discover that gas now coming from OD is reinsertion gas from other well & curtail production of OD

12. White v. N.Y. Gas Co.: OVERVIEW (RADIUM) Factual Dispute: Was the gas coming out of the OD well stored gas or local gas? Findings: – By the time of trial all the local gas was gone – Thus, only stored gas was coming out of the OD well.

13. White v. N.Y. Gas Co.: OVERVIEW (RADIUM) Claim by P’tiff: (relying on Hammonds & ACs) Once reinserted underground, gas has “escaped”, so belongs to nobody (Hammonds). Thus, what comes out of OD well belongs to “captors” (owners/beneficiaries of OD including P). Ds have contractual duty to continue pumping OD well for benefit of owners of proceeds of OD (as though it was one of several wells doing initial capture in a multi-well field).

14. White v. N.Y. Gas Co.: DQ2.29 (RADIUM) USE OF ANIMALS ANALOGY IN WHITE: Court says gas has not “escaped” (p.99) – The two pools are one “well-defined storage field” – Ds control both BUT more like escape case than Hammonds. – Ds didn’t intend that gas flow into 2d pool – Ds lucky they controlled 2d pool as well

15. White v. N.Y. Gas Co.: DQ2.29 (RADIUM) USE OF ANIMALS ANALOGY IN WHITE: Court says gas has not “escaped” (p.99) BUT more like escape case than Hammonds. DQ2.29: If court had treated this as “escape”, arguments that G wins under Escaping ACs?

16. White v. N.Y. Gas Co.: DQ2.29 (RADIUM) Arguments that G wins even under ACs? Relevant Points Include: Return to NL: – Not “Natural Habitat” (but see Mullett ) – Like Kesler: relatively short time & distance; quick “pursuit” Marking/F’s Knowledge: – Nature of gas shows industry expert that not local – Highly unlikely OD well starts producing again w/o leak – Court’s zoo elephant in Pittsburgh a little Q’able – Need to be expert to tell NE from SW gas – Maybe more like: Fished-out lake suddenly has fish again

17. White v. N.Y. Gas Co.: DQ2.29 (RADIUM) Arguments that G wins even under ACs? Domestication Could Easily Have Rule That Once “Captured”, No Longer Wild Animal, so Stronger Rights Two Concerns re Analogy to Domestication 1.Natural Gas Escapes if Not Confined Well, so Maybe More Like Wild Animal in Cage 2.In White Situation (Unlike Hammonds), G No Longer Fully Controls Gas

18. White v. N.Y. Gas Co. : Logic of Case (RADIUM) Finding #1: Plaintiff is a resident and citizen of Crawford County, Pennsylvania. Defendant New York State Natural Gas Corporation … is a New York corporation and doing business in Pennsylvania. Defendant Tennessee Gas Transmission Company … is a Delaware corporation and doing business in Pennsylvania. The amount in controversy exceeds the sum of $3,000 exclusive of interest and costs. Relevance?

19. White v. N.Y. Gas Co. : Logic of Case (RADIUM) Plaintiff resident and citizen of PennsylvaniaDefendant is a New York corporation Defendant is a Delaware corporation The amount in controversy exceeds the sum of $3,000 Finding #1: Plaintiff is a resident and citizen of Crawford County, Pennsylvania. Defendant New York State Natural Gas Corporation … is a New York corporation and doing business in Pennsylvania. Defendant Tennessee Gas Transmission Company … is a Delaware corporation and doing business in Pennsylvania. The amount in controversy exceeds the sum of $3,000 exclusive of interest and costs. Diversity Jurisdiction in Fed’l Court

20. White v. N.Y. Gas Co. : Logic of case (RADIUM) Diversity Case in Federal Court – Court must apply Pennsylvania Law (Erie) – Penn. Trial Court case followed Hammonds Court: Penn. SCt would not follow Hammonds – Penn doesn’t always use animals analogy for oil & gas – Hammonds rule discourages reinsertion – Strong public policy favoring reinsertion (note finding re necessary for winter heating in Northeastern US)

21. White v. N.Y. Gas Co. : DQ2.30 Logic of case (RADIUM) Court: Penn. SCt would not follow Hammonds – Penn doesn’t always use animals analogy for oil & gas – Hammonds rule discourages reinsertion – Strong public policy favoring reinsertion DQ2.30: Penn. Statutes = Evidence of public policy – Eminent Domain power available to get storage space – Like Oklahoma Statute cited in n.2 p.97 – What does use of EmDom mean in this context? – Allowed to store even near coal mines – State leases out land for storage

22. White v. N.Y. Gas Co. DQ2.31 (RADIUM) Under the reasoning of White, will surface owners (Os) have a trespass action against those who reinsert gas (Gs)? They should; gas remains property of Gs. Penn giving Gs Eminent Domain power to purchase rights suggests state thinks Gs should have to pay Os.

23. White v. N.Y. Gas Co.: DQ2.31 Under the reasoning of White, Os have trespass action against Gs who don’t purchase rights to use pool. White & Hammonds can’t be reconciled on this point. After White, Pennsylvania has different rule than Kentucky. Qs on White?

24. REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy Gas Companies (G) Reinserting Gas Produces Two Kinds of Disputes: 1.Hammonds: G v. Owners of Lots Containing Part of Reinsertion Pool – Who owns gas? – If G owns gas, does G have to pay for right to use pool? – If G doesn’t own, can other Owners extract reinserted gas? 2.White: G v. Owners of Adjoining Pools: If reinserted gas leaks into reservoir not owned/controlled by G, does G lose property rights to gas?

25. REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy Gas Companies (G) Reinserting Gas Produces Two Kinds of Disputes: 1.Hammonds: G v. Owners of Lots Containing Part of Reinsertion Pool 2.White: Leaks (G v. Owners of Adjoining Pools) Note :You could address the two kinds of disputes separately. E.g., might argue ACs better for leaks than for Hammonds.

26. REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy 1.DQ2.32: Arguments from Factual Similarities & Differences (KRYPTON) 2.DQ2.33: Arguments re Usefulness of Legal Rules/Factors (OXYGEN) 3.Arguments re Comparisons to Alternatives – DQ2.34: Oklahoma Statute (OXYGEN) – DQ2.35; Airspace Solution (KRYPTON) – DQ2.36: Overall (URANIUM)

27. REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy DQ2.32 (KRYPTON): Factual Comparisons Between Escaping Animals Situations & “Escaping” Gas Situations Arguments from Factual Similarities re Usefulness of Escaping Animals Cases

28. REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy DQ2.32 (KRYPTON): Factual Comparisons Relevant Factual Similarities Include: – In both, property moving from complete control to place where ownership is less certain. – White leak like escaping animal b/c escaping confinement w/o OO’s intent despite labor to control – Valuable property/industry – Both can hold identifying mark (although marking of gas probably only discernable to expert )

29. REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy DQ2.32 (KRYPTON): Factual Comparisons Between Escaping Animals Situations & “Escaping” Gas Situations Arguments from Factual Differences re Usefulness of Escaping Animals Cases

30. REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy DQ2.32 (KRYPTON): Factual Comparisons Relevant Factual Differences Include: – Natural Gas Lasts Much Longer Than Animal or Whale Carcass – Reinsertion is Socially Valuable ; Escape is Not – Reinsertion is Deliberate; Escape is Not

31. Argument By Analogy Oil & Gas: Escape DQ2.33 (OXYGEN): Usefulness of Doctrine (Legal Rules or Factors) from Escaping Animals Cases for “Escaping” Gas Situations Rules/Factors from Escaping Animals Cases that Would Be Less Useful for Escaping Gas Issues (and Why) (Hard to Use or Not Very Relevant)

32. Argument By Analogy Oil & Gas: Escape DQ2.33 (OXYGEN): Usefulness of Doctrine Rules/Factors from Escaping Animals Cases that Would Be Less Useful Might Include: Time; Marking (w/o expertise); NL (in Hammonds cases)

33. Argument By Analogy Oil & Gas: Escape DQ2.33 (OXYGEN): Usefulness of Doctrine (Legal Rules or Factors) from Escaping Animals Cases for “Escaping” Gas Situations Rules/Factors from Escaping Animals Cases that Would Be Useful for Escaping Gas Issues (and Why) CouldShould (Not Could We, But Should We)

34. Argument By Analogy Oil & Gas: Escape DQ2.33 (OXYGEN): Usefulness of Doctrine Rules/Factors from Escaping Animals Cases that Would Be Useful Might Include: Distance; AR; Abandonment; F’s Knowledge; Industry; NL (in leak cases)

35. Argument By Analogy Oil & Gas: Escape Possible Alternatives to ACs (DQ2.34-2.36) Thinking About Pros & Cons Might Consider: Importance of Reinsertion & Cheap Fuel Relative Importance of Landowners’ Interests Ease of Administration Public Reaction

36. Argument By Analogy Oil & Gas: Escape Possible Alternatives to ACs DQ2.34 (OXYGEN): Oklahoma Statute (p.97 fn2) I’ll go through language so you can see what it does Then ask Oxygens re some pros & cons

37. Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p.97: fn2) shall at all times be deemed the property of the injector “All natural gas which has previously been reduced to possession, and which is subsequently injected into underground storage fields, sands, reservoirs and facilities, shall at all times be deemed the property of the injector, his heirs, successors or assigns ….” = Reinserted gas remains property of Gas Co. (G)

38. Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p.97: fn2) in no event shall such gas be subject to the right of the owner of the surface to producetake, reduce to possession or otherwise interfere with “ … and in no event shall such gas be subject to the right of the owner of the surface of said lands or of any mineral interest therein, under which said gas storage fields, sands, reservoirs, and facilities lie, or of any person other than the injector, his heirs, successors and assigns, to produce, take, reduce to possession, waste, or otherwise interfere with or exercise any control thereover, …” = … and other owners of pool cannot take reinserted gas or bring trespass action …

39. Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p.97: fn2) “ … provided that the injector, his heirs, successors and assigns, shall have no right to gas in any stratum, or portion thereof, which has not been condemned under the provisions of this Act, or otherwise purchased.” = … BUT G doesn’t have any rights to gas in portions of the pool that it has not paid to use via Eminent Domain or negotiated agreement.”

40. Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p.97: fn2) (Summary) (1) Reinserted gas remains property of Gas Co. (G) and other owners (Os) of pool cannot take reinserted gas or bring trespass action, BUT (2) G doesn’t have any rights to gas in portions of the pool that it has not paid to use. MEANS: So long as G buys rights through negotiation or eminent domain, Os cannot prevent reinsertion or take gas.

41. Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p.97: fn2) (Summary) Reinserted gas remains property of Gas Co. (G) and other owners (Os) of pool cannot take reinserted gas or bring trespass action, BUT G doesn’t have any rights to gas in portions of the pool that it has not paid to use. If G doesn’t buy rights from Os, doesn’t own gas in those parts of pool. – Means Os can extract, but not bring trespass action. – Might mean Gs will take risk that small Os can’t afford to extract and not pay them for rights. QUESTIONS?