Salem Iron Co. v. Hyland (74 Ohio St. 160, 1906)

Shauck:, C. J.

The circuit court did not state its conclusions of fact separately from its conclusions of law, and it is not onr duty to consider conflicting evidence for the purpose of determining its probative value. The case we are to consider is, therefore, to be taken as favorably to the defendants as is justified by admitted allegations of the pleadings and any substantial evidence supporting their averments where issues of fact are joined. Thus stated the material facts are:

Plaintiff is the owner of forty-eight acres of land upon which for about thirty-five years it has maintained and operated a blast furnace for the manufacture of pig iron. Upon the premises are dwelling-houses used as habitations of employes and their families. The residue of the land is devoted to pasturage. A part of the equipment of the furnace consists of fourteen boilers used for the generation of steam consuming for that purpose 200,000 gallons of water daily. This water since the erection of the furnace has been procured from the Cherry Fork of Beaver Creek which runs through the company’s land, the water, in its natural state, being nearly free from impurities, and suitable for the generation of steam. The defendants had prospected for and found a valuable bed of petroleum near the source of Cherry Fork, and above the property of the iron company, which they had commenced to operate in the usual way, and without negligence, by pumping the oil and the salt water with which it is always commingled in the Ohio field into tanks, permitting the oil to rise to the surface, and drawing the salt water from beneath it, thé water finding its way by gravity to the stream. No other mode of operating for petroleum is known. The extent to which the water of the stream is charged with salt when it reaches the property of the plaintiff varies with the stage of the water in the stream, but it is at all ordinary stages sufficient to increase the foaming of the water in the boilers when heated, to raise its boiling point, to increase the demand for fuel for the generation of steam and to diminish perceptibly the efficiency of the furnace. It is practicable for the plaintiff to obtain water for the furnace at other and convenient sources at a moderate and ascertainable expense, and the addition of a small amount of oil to the water of the stream after it receives the water of the oil wells of the defendants would materially diminish the foaming and lower its boiling point.

It is impossible for the defendants to develop the mineral resources of the land without doing all the things