Section two of the act of February 9, 1893, 90 O. L., 24, provides that the owner or operator of any *350gas or oil well, when about to abandon or cease operating the same, and before drawing the casing therefrom, shall securely fill such well with rock sediment, or mortar composed of two parts sand and one part cement, to the depth of two hundred feet above the top of the first oil or gas bearing’ rock, in such manner as shall prevent the surface or fresh water from penetrating to the oil or gas bearing rock, and also as shall prevent the gas and oil from escaping therefrom. The penalty for a violation of the statute is one hundred dollars.

The particular in which the petition is claimed to be defective, is, that it does not aver that the easing had been drawn from the well. It is urged that so long as the casing remains in the well that there is no violation of the statute. It will be noticed that the statute requires the well to be securely filled, in such manner as shall prevent the surface or fresh water from penetrating to the oil or g-as bearing rock, and also as shall prevent the gas and oil from escaping therefrom. The filling is to be such as will keep the water out and the gas’ and oil in the rock. To draw the tubing out, léaving the casing in, would permit a free escape of gas and oil from the well; and if, by reason of age, corrosion, or other cause, the casing should become full of holes and leak, the fresh water would penetrate to the oil and gas bearing rock, to the great damage of the surrounding oil and gas territory. So that in case of such defective casing, even though the casing remains in the well, the fresh water will get to the oil or gas bearing rock, and the oil and gas will escape therefrom. It is therefore clear that it is not the drawing of the casing- that is the test as to whether a well has been abandoned or ceased to beoperated. The well *351may be abandoned and • all operations cease, with the casing left in the well. If the casing is in good condition no water can get into the well, but the tubing being pulled out the gas and oil can freely escape, even though the casing’ remains in the well. The reason the filling is to be done before drawing the casing is that the filling cannot be so securely done after the casing is drawn.

To shut down a well, leaving in the tubing and casing, is not to abandon it, nor ceasing to operate it. What is meant by the statue is a permanent abandonment, or a permanent ceasing- to operate, followed by pulling out the tubing, and usually, though not always, followed by drawing the casing.

It is therefore not necessary to the abandonment of, or ceasing- to operate a well, that the casing’ should be drawn, and it is not necessary to make an averment to that effect in the petition. The petition in this case therefore states facts sufficient to constitute a cause of action against the-defendant, and the demurrer was properly overruled. The circuit court therefore erred in reversing the judgment.

The judgment of the circuit court is reversed and, that of the common pleas affirmed.