                  NOTICE                          NO. 5-03-0784
 Decision filed 04/10/06. The text of
 this decision may be changed or                     IN THE
 corrected prior to the filing of a
 Petition   for    Rehearing   or   the   APPELLATE COURT OF ILLINOIS
 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________
CONTINENTAL RESOURCES OF                                          )   Appeal from the
ILLINOIS, INC.,                                                   )   Circuit Court of
                                                                  )   Franklin County.
     Plaintiff-Appellant,                                         )
                                                                  )
v.                                                                )   No. 02-CH-28
                                                                  )
ILLINOIS METHANE, LLC, and DeMIER OIL             )
COMPANY,                                    )
                                            )
   Defendants-Appellees,                    )
                                            )
and                                         )
                                            )
ROYAL TALON COMPANY,                        ) Honorable
                                            ) George W. Timberlake,
   Intervening Defendant-Appellee.          ) Judge, presiding.
________________________________________________________________________

            JUSTICE DONOVAN delivered the opinion of the court:

            Plaintiff, Continental Resources of Illinois, Inc. (Continental), brought an action

against defendants, Illinois Methane, LLC (Illinois Methane), and DeMier Oil Company

(DeMier), alleging that, pursuant to certain oil and gas leases, it has the exclusive right to
explore, drill, and produce the coalbed methane gas that is being produced by defendants.

Continental further alleged that it also has a legal right to share in the proceeds of Illinois
Methane's coalbed methane production from certain coal mine voids because Continental
owns the coal rights in nearby lands which were a part of the same coal mine. Royal Talon

Company (Royal Talon) intervened, alleging that its rights might be affected by Continental's
complaint. The circuit court of Franklin County dismissed Continental's complaint for a

failure to state a cause of action because Continental did not have any right to produce

                                                       1
coalbed methane under the conventional oil and gas leases it controlled. The court further
found that, under the mineral-production principle known as the rule of capture, the

complaint did not state a cause of action for the drainage of gas. Continental appeals the
dismissal of its complaint. The United Mine Workers of America, its District 12 (Illinois),
and the Illinois Coal Association were given leave to file amicus curiae briefs with this court.

We affirm.
       Old Ben Coal Company (Old Ben) originally controlled the coal, oil, and gas
underlying various lands in Franklin County, Illinois. In the early 1980s, Old Ben executed

oil and gas leases granting the right to produce from those lands oil, all gases, liquid

hydrocarbons, and their constituent products. Continental obtained three of these oil and gas
leases by assignment in 2001. Continental also acquired in 2001 all oil, gas, and mineral

rights to some 300 acres known as the "Williams Acreage." According to Continental,

Illinois Methane and DeMier allegedly were producing coalbed methane gas from mine voids

underlying the lands leased or controlled by Continental. Continental sought a declaratory
judgment that it had the exclusive right to explore, drill, and produce gas, including coalbed

methane gas, on these properties. Continental also sought relief under the theories of

trespass, conversion, quiet title, slander of title, and accounting. It further sought injunctive
relief to prevent additional production of coalbed methane gas. Royal Talon intervened with

permission of the court and alleged that it owned coal rights under these lands and had leased
those rights to Illinois Methane and DeMier, who were producing coalbed methane from
Royal Talon coal seams. All defendants filed motions to dismiss Continental's complaint.

The court granted defendants' motions after concluding that methane gas existing in
abandoned mine voids left by prior coal mining operations belonged to the coal estates, that
no rights to the coalbed methane gas were granted by the oil and gas leases held by

Continental, and that the rule of capture applies to coalbed methane gas.

                                               2
       Continental argues on appeal that the court erred in dismissing its complaint.
Continental asserts that it was error to find that the language "all gases" in its leases did not

include coalbed methane gas. Continental further contends the court erred in holding that gas
existing in mine voids is subject to the rule of capture.
       While the ownership of and the right to develop coalbed methane gas are questions of

first impression in Illinois, courts in other jurisdictions have struggled with these issues for
more than a decade. A review of these cases reveals a split of authority. Many of the cases
have resolved the issues by resorting to interpreting or looking to the intent of the original

leases and/or grants. See Carbon County v. Union Reserve Coal Co., 271 Mont. 459, 898

P.2d 680 (1995); Newman v. RAG Wyoming Land Co., 53 P.3d 540 (Wyo. 2002); see also
Amoco Production Co. v. Southern Ute Indian Tribe, 526 U.S. 865, 144 L. Ed. 2d 22, 119 S.

Ct. 1719 (1999). Others have relied upon the general property laws of their respective states

with respect to the production of all "minerals" and the manner in which coal is mined in that

particular jurisdiction. See NCNB Texas National Bank, N.A. v. West, 631 So. 2d 212 (Ala.
1993); United States Steel Corp. v. Hoge, 503 Pa. 140, 468 A.2d 1380 (1983). No one

answer is right for every state and/or every lease or grant. While cases from other states are

helpful, we must make our own determinations based on Illinois law. And, in order to make
those determinations, we also must consider fully the natural characteristics of coalbed

methane gas and the methods, rights, and obligations of mining and extraction in general.
We begin with a basic description of coalbed methane gas and the methods for its extraction.
       The process by which organic material becomes coal is known as coalification. The

coalification process generates gases, one of which is coalbed methane. There are three
states of coalbed methane gas: (1) free gas within the cleats and matrixes of the coal, (2) gas
dissolved in water in the coal pores, and (3) gas adsorbed onto the solid surface of the coal.

When the pressure on the coal is reduced, the forces that hold the coalbed methane to the coal

                                               3
are reduced and coalbed methane is released from the coal. Harrison-Wyatt, LLC v. Ratliff,
267 Va. 549, 551, 593 S.E.2d 234, 235 (2004).

       Historically, coalbed methane gas was considered a "dangerous waste product of coal
mining." Amoco Production Co., 526 U.S. at 871, 144 L. Ed. 2d at 28, 119 S. Ct. at 1723.
Technological developments in the 1980s and changes in federal law made the commercial

development of coalbed methane gas possible. Carbon County, 271 Mont. at 464, 898 P.2d
at 683. The extraction of coalbed methane gas is generally accomplished by one of three
methods: vertical degasification wells, horizontal boreholes, or gob wells.            Vertical

degasification wells are drilled from the surface into an unmined coal seam. Horizontal

boreholes are bored into the coal seam from a point within the coal mine itself. Gob wells,
relating to longwall mining, are drilled from the surface to an area near the coal seam.

Harrison-Wyatt, LLC, 267 Va. at 551, 593 S.E.2d at 235; Carbon County, 271 Mont. at 464,

898 P.2d at 683. During the longwall mining method, a machine grinds progressively into

the wall of coal to tear away the coal. As the machine grinds further and further into the
wall, it leaves behind it a void into which the ceiling of the mine collapses, creating a gob of

rubble in which the coalbed gas collects. The collapse of the ceiling of the mine also leaves

the overlying strata unsupported, and gravity causes it to subside and to fracture, thereby
releasing more gas. Gas from the gob can then travel upward into noncoal strata as well. See

Carbon County, 271 Mont. at 464-65, 898 P.2d at 683; NCNB Texas National Bank, N.A.,
631 So. 2d at 215.
       In Illinois, mineral rights may be severed from surface rights and conveyed separately.

Miller v. Ridgley, 2 Ill. 2d 223, 227, 117 N.E.2d 759, 761 (1954). Oil and gas in place are
minerals, but because of their fugacious qualities, they are incapable of ownership distinct
from the soil. They belong to the owner of the land only so long as they remain under the

land, and if the owner makes a grant of them to another, it is a grant only of the gas and oil

                                               4
that the grantee takes from the land. Oil and gas are incapable of ownership until actually
found and produced. This principle is the basis for the rule of capture. Jilek v. Chicago,

Wilmington & Franklin Coal Co., 382 Ill. 241, 248-49, 47 N.E.2d 96, 100 (1943); Pawnee
Oil & Gas, Inc. v. County of Wayne, 323 Ill. App. 3d 426, 428, 751 N.E.2d 1268, 1269
(2001). Under the rule of capture, gas that migrates from one property to another is subject

to recovery and possession by the holder of the gas estate on the property to which the gas
migrates. NCNB Texas National Bank, N.A., 631 So. 2d at 224. Because coalbed gas is
similar to and migrates in the same manner as other natural gas, there is no reason that the

rule of capture and the laws governing the ownership of migratory natural gas should not

apply to coalbed methane gas as well. NCNB Texas National Bank, N.A., 631 So. 2d at 228.
With these principles in mind, we turn to Continental's arguments on appeal.

       Continental first alleges that oil and gas leases granting the right to produce all gases

include the right to produce coalbed methane gas as well. As shown, coalbed methane gas is

distinct, and the answer is not that simple. Each side has presented cogent arguments why
coalbed gas should be declared the property of that particular side. Notable arguments

include the fact that coalbed gas has practically the same chemical composition as natural gas

with only very small percentages of other ingredients. On the other side, coalbed gas is a by-
product of coal and has a natural and unique affinity for coal. The coal owner cannot mine

the coal without removing the coalbed gas because it poses the perils of explosion and
asphyxiation. In addition, coal owners need to control the production of coalbed gas in order
to maintain the safety of the mines and the value of the coal seams.

       Given the status of this case and the leases and land interests involved, we need not
determine to whom the coalbed methane gas belongs in the absolute. We first note that the
leases at issue here deny Continental the right to produce coalbed methane from a coal seam

or void. The leases specifically require the lessee to permanently case and cement all holes

                                               5
drilled through coal seams or mine workings. The reservation of the right to drill through the
coal does not include the right to drill into the coal and develop coalbed methane. We further

note that the conveyance of coal as a distinct property also includes the bundle of property
rights included within the coal, such as the rights incident and necessary to the recovery of
the coal. If oil and gas leases included the right to develop coalbed methane, they then would

also carry an implied right to invade the coal seams and stimulate them in a fashion that
could make it more dangerous or difficult to later produce the coal. Energy Development
Corp. v. Moss, 214 W. Va. 577, 587, 591 S.E.2d 135, 145 (2003). Oil and gas producers

have no direct interest in coal mine safety, and therefore coalbed methane gas historically has

been completely controlled by whoever controlled the coal. We believe this to be a wise and
just result. The control of coalbed methane gas should not change simply by virtue of its

increased value. We further conclude that the bundle of property rights associated with the

coal estate also includes the right to reduce to possession any gas trapped within the coal

itself so long as the gas remains within that coal until the time of its capture. See Vines v.
McKenzie Methane Corp., 619 So. 2d 1305, 1308 (Ala. 1993); United States Steel Corp., 503

Pa. at 147, 468 A.2d at 1383.

       Continental argues that the coalbed methane found in mine voids, however, should not
be treated the same as that found in coal seams or active mines. It is true that natural gas

produced and reduced to possession is personal property. And gas injected into underground,
defined, and controlled reservoirs belongs to whoever produced or bought the gas and
transported it to those reservoirs. See, e.g., White v. New York State Natural Gas Corp., 190

F. Supp. 342 (W.D. Pa. 1960). Coalbed methane gas found in mine voids has never been
produced or reduced to possession by someone above the ground and therefore is not
personal property. The coalbed methane gas in those voids is there as a result of natural

deadsorption or deabsorption from the coal formations and mine workings. Given that

                                              6
Illinois also follows the container space doctrine, a doctrine which states that the holder of
coal rights also holds the rights to the void after the coal is mined (see Schobert v. Pittsburgh

Coal & Mining Co., 254 Ill. 474, 98 N.E. 945 (1912)), coalbed methane gas found in the
mine voids must therefore still be a part of the coal estate, subject to the rule of capture.
       We therefore conclude that coalbed methane gas found in coal seams and/or in mine

voids is controlled by the coal estate. Under the rule of capture, coalbed methane gas cannot
be owned until it is reduced to possession. Consequently, Continental does not and cannot
own the coalbed methane gas at issue here. We further conclude that defendants' production

of coalbed methane gas from wells located outside Continental's lands is not a violation of

Continental's rights. For these reasons, even after viewing the facts and evidence in the light
most favorable to Continental, we agree with the trial court that Continental failed to state a

cause of action. Clearly, there is no set of facts that can be proved under these pleadings

entitling Continental to the relief it seeks. See 735 ILCS 5/2-619 (West 2000); Pochopien v.

Marshall, O'Toole, Gerstein, Murray & Borun, 315 Ill. App. 3d 329, 335, 733 N.E.2d 401,
406 (2000). We therefore find no error in the dismissal of Continental's complaint and affirm

the judgment of the circuit court of Franklin County.


       Affirmed.



       WELCH and McGLYNN, JJ., concur.




                                               7
                                             NO. 5-03-0784
                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      CONTINENTAL RESOURCES OF                                 )   Appeal from the
      ILLINOIS, INC.,                                          )   Circuit Court of
                                                               )   Franklin County.
            Plaintiff-Appellant,                               )
                                                               )
      v.                                                       )   No. 02-CH-28
                                                               )
      ILLINOIS METHANE, LLC, and DeMIER OIL                    )
      COMPANY,                             )
                                                  )
         Defendants-Appellees,                    )
                                                  )
      and                                         )
                                                  )
      ROYAL TALON COMPANY,                        ) Honorable
                                                  ) George W. Timberlake,
         Intervening Defendant-Appellee.          ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed:   April 10, 2006
___________________________________________________________________________________

Justices:              Honorable James K. Donovan, J.

                 Honorable Thomas M. Welch, J., and
                 Honorable Stephen P. McGlynn, J.,
                 Concur
___________________________________________________________________________________
Attorneys        Edwina Warner, Troutt, Popit and Warner, P.C., 105 North Main
for              Street, P.O. Box 548, Benton, IL 62812; Eric S. Eissenstat, Fellers,
Plaintiff        Snider, Blankenship, Bailey & Tippens, 100 North Broadway, Suite 1700, Oklahoma
                 City, OK 73102-8820; Allan DeVore, The DeVore Law Firm, 5709
                 N.W. 132nd Street, Oklahoma City, OK 73142
___________________________________________________________________________________

Attorneys              James L. Van Winkle, Van Winkle & Van Winkle, 301 S. Jackson Street, P.O. Box
for                    337, McLeansboro, IL 62859-0337 (for Illinois Methane, LLC and DeMier Oil
Defendants             Company B Defendants-Appellees); Robert C. Wilson, Wilson & Cape, 105 South
                       Commercial Street, P.O. Box 544, Harrisburg, IL 62946 (for Illinois Methane, LLC)
                       John E. Rhine, Rhine, Ernest, & Vargo, 631 Market Street, Mt. Carmel, IL 62863
                 (for Royal Talon Company B Intervening Defendant)
___________________________________________________________________________________
Attorneys          L. James Hanson, Neubauer, Hanson & Overstreet, P.C., 123 South 10th Street,
for                Suite 600, Mt. Vernon, IL 62864 (for Illinois Coal Association)
Amicus Curiae
                 Grant Crandall, United Mine Workers of America, 8315 Lee Highway, Fairfax,
                 VA 22031-2215; Michael Holland, Cornfield & Feldman, 25 East Washington Street,
                 Suite 1400, Chicago, IL 60602 (for UMWA District 12, Illinois and United Mine
                 Workers of America)
______________________________________________________________________________________
