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UNIVERSITY
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LOS ANGELES
SCHOOL OF LAW
LffiRARY
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THE LAW RELATING
TO
OIL AND GAS
INCLUDING
Oil and Gas Leases and Contracts, Production of Oil and Gas, both Natural
and Artificial, and Supplying Heat and Light thereby, whether
by Private Corporations or Municipalities
BY
W. W. THORNTON
Author of Gifts and Advancements, Lost Wills, Railroad Fences and
Private Crossings, etc.
CINCINNATI
THE W. H. ANDERSON CO.
LAW BOOK PUBLISHERS
1904
T
T3974,
Copyrighted 1904
THE W. H. ANDERSON CO.
CINCINNATI.
OIL AND GAS
7769fi8
PREFACE.
The production of petroleum in this country annually
amounts to millions of barrels, and in value to millions of
dollars. It is one of the greatest industries of this country.
The value of natural gas annually flowing from the earth is
of almost inestimable value. Since petroleum and natural
gas became commercial products, thousands of cases concerning
their production, sale and transfer, involving new and unusual
questions, have been decided in our courts, many of which have
been reported in ofiicial and unofficial . publications. These
" new and unusual questions " have, at times, sorely tried
the courts to determine and settle the rights of the contending
parties according to legal principles and in accordance with
justice. Cases have .come before the courts involving many
questions of so unique a character that no precedents could be
found. Necessarily, there has grown up quite a body of law,
unknown to the past generations. To collate and discuss the
many cases involving questions concerning petroleum and nat-
ural gas, and the rights and liabilities involved in their produc-
tion, sale and transportation, has been one of the objects of
the author in the preparation of this volume.
The subject of oil contracts has also been discussed at length.
Much prominence has been given to the subject of oil and
gas leases, — by which is meant leases of lands for the purpose
of developing them to secure petroleum and natural gas, — and
questions growing out of that subject. Early in the prepara-
tion the author perceived the impossibility to reconcile alt the
cases upon this subject, and to harmonize them in a satisfactory
manner. Wliat he has attempted to do has been to state '^le
questions decided, at times giving his own views for whatever
iii
iv PREFACE.
they may be worth. He has cited many cases, where he tliought
them applicable, upon the subject of raining of solid minerals,
— coal mining cases, — believing that those using this work
would find such cases of value and aid them in their practice.
In this he has gone far beyond the line adopted by writers upon
the subject of oil and gas. Especial care has been taken to
secure citations of all cases upon this subject.
The work is not confined merely to the subject of petroleum
and natural gas, and their production. The production and
supplying of artificial gas has been treated at length, — much
more so, it is believed, than can be found elsewhere either in
this country or England. The duty of a gas company to furn-
ish gas to the consumer, its liability for failure to furnish him
gas, and its liability to him for neglect whereby he or others are
injured by leaking or exploding gas has been treated at con-
siderable length.
Particular attention has been given to the powers of munici-
palities to light their streets, to furnish gas to their inhabitants,
and their relations to gas companies, and the right of these com-
panies to use streets and highways for the laying of their pipes
or mains therein. It is believed that nowhere else has the
subject of exclusive or monopolistic grants, — the right to oc-
cupy the streets, to the exclusion of all other competitors, —
. been treated as exhaustively as in the present work.
The right of a municipality or a legislature to regulate gas
companies and to control their rates to customers has received
particular attention.
Upon these subjects electric lighting and sti^et railway cases
have been frequently cited, as well upon the subject of the right
of electric and street railway companies using the streets of
a city.
A chapter has been devoted to the subject of insurance in
connection with use and storage of oil and gas in the building
insured.
The aim has been to not only make this volume a useful
and convenient work for the practitioner having an oil or gas
lease or contract under consideration, but also for attorneys of
PREFACE. • V
municipalities and artificial and natural gas .companies who
are investigating the rights and duties arising between munici-
palities and gas companies, as well as the rights and duties of
gas companies to the inhabitants of such cities and to their,
patrons or customers.
Forms of oil and natural gas leases and contracts used ill
Pennsylvania, West Virginia, Ohio, Indiana, Kansas and Texas
have been inserted in the Appendix, which it is believed will
be found to be useful.
W. W. Thornton.
Indianapolis, Ind.
January 1, 190Jf.
CONTENTS.
CHAPTER I.
HISTORICAL SKETCH.
SEC. PAGE.
1. Petroleum known to ancients 1
2. Early discoveries of petroleum in United States 3
3. Early account of a western New York oil spring 5
4. Washington county, Ohio, oil well 8
5. The first oil well in United States 9
6. Other first oil wells in United States 12
7. In what countries petroleum found 13
8. Natural gas was known to ancients 15
9. Early natural gas in America 16
10. Sources and composition of petroleum and gas 18
11. Composition of petroleum 21
12. Composition of natural gas
13. Early attempts at distilling or refining petroleum 24
14. Early use of petroleum as a medicine 25
15. Transportation 26
16. The first oil lease -8
17. Early use of artificial illuminating gas 29
CHAPTER IT.
LEGAL STATUS OF OIL AND NATURAL GAS.
18. Oil and natural gas a mineral 31
19. Part of realty 32
20. Ownership in earth 33
21. Compared with animals farse naturae 33
22. When title vests in owner 34
23. Ownership of oil differs from that of water 35
24. Owner of land has only a qualified ownership 37
25. Qualified ownership in oil — power of legislature 39
26. Severance of oil or gas from realty 42
27. Recovery of severed product — Trover 43
28. Wasting gas — injunction 44
29. Increasing flow of gas by pumping well 45
30. Pumping oil wells ^ ■ 47
31. Exploding nitroglycerin in well to increase flow 47
32. Maliciously boring well to injure another 48
vii
viii CONTENTS,
SEC. PAGE.
33. Measure of damages for unlawfully taking oil and gas from tlie
soil 48
34. When lessee acquires title to oil 49
35. Waste, — part of realty 50
36. Partition 51
37. Oil and gas not synonymous ." 52
38. "Other valuable volatile substances" 52
39. Natural gas not heat. 52
40. Gas and oil an article of commerce 52
41. Judicial notice 53
42. Judicial knowledge of oil and gas properties 54
43. Plugging wells 54
44. Not subject to tariff law of 1890 55
45. Entry of government oil lands 55
46. Property in oil tanks or pipe-lines 55
CHAPTEK III.
OIL AND GAS LEASES.
47. Peculiarity 60
48. Name applied to instrument does not determine its legal effect. . 62
49. Lex loci governs 62
50. License and incorporeal hereditaments 62
51. Interest of lessee is a chattel real 63
52. Contract giving interest in real estate 64
53. Estate does not vest if oil or gas not found 67
54. Vesting title subject to condition precedent. — Diligence 69
55. Tenancy from year to year or at will 70
56. Unilateral Contract 71
57. Legal interest of lessee in various leases — digest 72
58. Sale of oil and gas, and not a lease 76
59. Presumption as to ownership of oil or gas is ground 77
60. Administrator's right to lease or contract — presumption 78
61. Lease and not a license 79
62. License 82
63. License — consideration — revocation 82
64. License, revocation 82
65. Merger 83
OG. Consideration • 84
67. Option to purchase after development 86
68. Option to extend lease 87
09. Acceptance of second lease by lessee in first lease.-. 87
70. Extension of time of lease may amount to a new lease 88
71. Options — r0\'O'cation 88
72. Options continued 91
73. Option to pay rent or drill well 93
74. Appurtenances, what will pass as such 93
75. Statute of frauds 94
ix
CONTENTS.
PAGE.
SEC. gg
76. Description of leased premises ^^
77. Right of lessor to use surface ^^
78. Construction gg
79 Construction of instrument by parties
80. Unfilled blanks.-Written and printed clauses .■.■.■■." lOO
81. Execution of lease ^^^
82. Defective execution or acknowledgment ^^^
83. Parol change of written lease 101
84. Acceptance — estoppel ^^2
85. Lessee need not sign lease— deed ■ ^^^
86. Separate owners giving joint lease ^^^
87. Notice to one of several lessees ......103
88. Second lease,— notice ■■ ■ ■ ; , ^^
89 A-ent of lessee may take lease after forfeiture.
90". Exclusive right of licensee of lessee.-Solid mineral oil. . .... • -lOo
91. Implied covenant ^Qg
92 Covenant running with land ^^^
hereditament— lease— surrender • ^^^
95. Lessee liable after assignment on express covenants ...... . . • • • • ^^--
96.
97.
98 Ao-reement as w wnat «_....•. - - - ^^^
1^: ;2r:":Lt^^;-vai;ieof Wseb^
101. Les^^rai^ing premises by operations on adjoining territory. . . .m
102. Drilling well near boundary line •••• ^^^
103. Injunction— quieting title • • • ^21
104. Damages _ 122
in'S Damao-es for failure to keep covenant
106'. images for neglect to develop or operate leased premise.. ... 1-3
107. Damages for neglect to operate-res .ludicata ;;■.■... 124
108. Damages for taking oil or gas ^25
109. Boundaries.— Location of wells [........ vl26
110. Selection of site 1-27
111 Number of wells 1-28
112 . Number of wells.— Protecting lines ^^^
113 Test wells.-Excuse for not drilling ^^2
114 Test well, when need not be drilled ^^^
117. "Shooting" well 136
lis Oil lease, who entitled to gas / '' " \ . 139
,19. Oil lease gives no nght to gas i. oil be not found . . . . . . . ■ , • ■ • ■ ■ ^^^
190 Eviction— ejectment ■ ' ' " ' 141
m. Failure of title., reimbursement of operator
When work must be begun • " ' , .,
Mi"enoe in operating leased premises after development.. •
Agreement as to what constitutes due diligence • ■
X CONTENTS.
SEC. PAGE.
122. Lessee denying tenancy 142
123. Uncertainty on lease. — Unconscionable 142
124. Diameter of wells 143
125. Contract to drill wells "in the vicinity." 143
CHAPTEE IV.
DURATION OF LEASE.
1 26. Ordinary leases .- 144
127. Diligent search. — Implied covenant 145
128. Holding for speculation purposes 145
129. Non-development of leased premises where no limit fixed. — For-
feiture 146
130. Greater diligence required in developing oil than coal lands 148
131. Acquiescence in delay — unavoidable accident 150
132. Acquiescence in abandonment — damages 150
133. Actual mining operations must be commenced 150
134. In paying quantities 151
135. Paying quantities, continued 135
136. Gas in paying quantities 157
137. Abandonment 160
138. Lessee may abandon non-productive premises 162
1.39. Completion of non-productive well — title 163
140. Instances of abandonment 163
141. Cessure of work after operations begun 166
142. Surrender 168
143. Surrender by substitution of tenants or assignment of lease 169
144. Parol surrender 172
145. Payment of rental instead of developing premises 172
146. Rescision for fraud 174
CHAPTER V.
FORFEITURE OF LEASE.
147. Forfeiture not a favorite of the law 176
148. Rule in gas or oil leases 176
149. History of change in rule giving lessor exclusive right to declare
a forfeiture 179
150. Forfeitu"c favored by equity when it will promote justice 182
151. Lessor only can declare forfeiture 182
152. Heirs or assignees of lessor may declare forfeiture, — assignee. . . .185
153. Stranger cannot avail himself of forfeiture 180
154. Lease may be voidable at election of lessee on his default, sur-
render 186
155. Lessee cannot insist on forfeiture to escape rent 188
156. Forfeiture clause omitted 189
157. Implied covenants do not authorize forfeiture 189
158. Notice of election to declare forfeiture 190
CONTENTS. XI
SEC. PAGE.
159. Waiver of forfeiture 191
160. Waiver of forfeiture by accepting payment 194
161. Eviction of lessee 196
162. Failure to operate and not for failure to develop 197
163. Continuance of operation 197
164. Production of gas will not prevent forfeiture of an oil lease.... 198
165. Covenant uncertain 19S
166. Re-entry 199
167. Release of premises equivalent to a re-entry 200
168. Surrender after assignment — forfeiture 20ii
169. Forfeiture of only part of lease 202
170. Partial development — abandonment 205
171. Lessee draining leased premises by wells on adjoining territory. . .206
172. Lessee draining away oil by sinking wells on adjoining premises. .207
173. Inability to complete work 207
174. Mortgage of leasehold may work a forfeiture 209
175. When work must be completed 209
176. Excavating for oil means bringing it to the surface 210
177. Failure to pay royalty or report them 210
178. Payment of rent will not prevent forfeiture for neglect to develop. 211
179. Must pay rent although no oil on premises 212
180. Lessee must pay past rents. — Damages 213
181. Lessor consenting to abandonment 213
182. Estoppel of lessor 214
183. Demand for compliance with lease 215
184. Abandonment a question of intention 215
185. Forfeiture a question for jury 215
186. Suit to cancel lease for non-development of territory 217
187. Relief from forfeiture 218
188. Time to avoid forfeiture 219
189. Lessee cannot recover premises after forfeiture 220
190. Reimbursement for expenses 220
191. Removal of fixtures and machinery 221
192. Damages instead of declaring a forfeiture 222
CHAPTEK VI.
ASSIGNMENT AND SUBLETTING OF LEASE.
193. Lessor — lessee 223
194. Interest assignee secures 224
195. Assignee cannot take advantage of default in lease 224
196. Refusing consent to assignment 224
197. Sublease.— Division 225
198. Assignment carries option , 225
199. Transfer of lease by judicial sale i|. 22G
200. Equitable assignee in possession 227
201. Lease unassignable 227
202. Assignment of royalties 228
XW CONTENTS.
SEC. PAGE.
203. Assignee of lessee bound by agreements in lease. — Privity of
estate ' 231
204. Ground of assignee's liability to lessor . .232
205. Assignee's liability broadened by terms of assignment or by out-
side contract 234
206. Extent of assignee's liability . ; 235
207. Liability of assignee of a part interest in lease 237
208. Liability of occupier under unassigned lease •. 238
209. Assignee not taking possession liable 238
210. Several successive assignees 239
211. Lease not executed by lessee, but possession taken under the lease,
effect 239
212. Lessee released by substitution of assignee 240
213. Trustee of lessee and not his cestuis que trustent liable 242
214. Cestuis que trustent may be liable 243
215. Liability of assignee to his assignor 243
216. Assignor liable on account of lease as a surety 245
217. Sublease — liability of sublessee 246
CHAPTER VII.
RENTS AND ROYALTIES.
218. Limitations of chapter 249
219. Construction of leases 249
220. Various methods of fixing rents or royalties 250
221. A royalty is rent — "mining rent." 250
222. Definition of rent and rent charges 251
223. Payment so much per well 252
224. Royalty, percentage of profits or income 253
225. Payment of operating expenses first. — Free gas 254
226. Free gas 255
227. Royalty in gas or oil used to operate leased premises. . 257
228. When royalty due, — removal of oil from premises 258
229. When rent is due for failure to develop land 259
230. To whom payable — joint lessors 259
231. Damages for failure to deliver lessor his share 261
232. Interest on royalties 261
233. Waiver — parol exidence 261
234. Surrender — tract "retained." 261
235. Interdependent conditions 262
236. New lease 262
237. Termination of lease by failure to keep its terms 263
238. Lessee cannot avoid payment by taking advantage of forfeiture
clause 264
239. Forfeiture clauses and liability for rent 205
240. Surrender of lease necessary to escape liability for rent 267
241. Eviction 268
242. Rent to be paid if well not drilled 268
COjJ^TENTS. Xlil
SEC. PAGE.
243. Minimum production allowed 271
244. Consideration for lease may be purchase money 272
245. Consideration for giant part of minerals, creates an exception. . .273
246. One well draining two tracts of land 273
247. Oral change of lease discharging or changing rents* 274
248. Failure of oil, royalty ceases 274
249. Rent for exhausted well, — flooded well 275
250. Instances of 1-essee's liability 275
251. Account rendered 277
252. How collected 277
253. Lien of royalty accruing during receivership 278
254. Assignment of lease does not carry oil in tank on premises 278
CHAPTEE VIII.
WHO MAY MAKE A LEASE.
255. Owner of land may grant 279
256. Infants. — Lunatics 279
257. Married women 280
258. Wife joining husband in lease — homestead 284
CHAPTER IX.
TENANTS FOR YEARS.
259. May work open mines 285
260. When may open new mines 285
CHAPTER X.
TENANCIES FOR LIFE.— DOWER.
261. May work mines or oil wells already open 287
262. Rule concerning life tenants applies to oil leases 288
263. May not open new mines or bore new wells 289
264. Curtesy estate of husband 289
265. When mines may be opened or wells bored 290
266. Mineral lands unfit for atiy other purposes than mining 291
267. Reversioner or remainderman opening wells ..292
268. Life-tenant must account for waste 292
269. Title to mineral or oil severed 293
270. Destruction of corpus of the estate 293
271. Oil or gas may be exhausted '*>"^^
272. Estoppel of remainderman 294
273. Assignment of dower in mines 294
^^ CONTENTS.
CHAPTEK XL
CO-TENANTS.
SEC. PAGE.
274. One co-tenant may operate land of co-tenancy for oil or gas 296
275. Lease of license granted by co-tenant 297
270. Partition of mines or mineral lands 297
277. Partition of oil or gas lands 299
278. Accounting between co-tenants 300
279. Accounting when tenant excludes co-tenant 305
280. Owner of surface not co-tenant with owner of mineral beneath
surface 306
281. Purchase by tenant of co-tenant's interest 306
282. Equity jurisdiction of an accounting 306
283. Expense of working joint property 307
284. When a tenant bound by co-tenant's act 308
285. Injunction 308
286. Surrender of lease by co-tenant 308
287. Payment of rent or royalties 309
288. Fidelity relation between members of a mining partnership 309
CHAPTEK XII.
CONTRACTS FOR A LEASE.
289. Not often drawn into controversies 313
290. Indefiniteness 313
291. What is a sufficient writing 314
292. Effect of taking possession under contract 317
293. Specific performance of contract for lease 318
294. Damages for breach of contract to give lease 320
CHAPTER XIII.
ADVERSE POSSESSION — STATUTE OF LIMITATIONS.
295. Peculiarities of oil and gas — possession of surface 321
296. Rule as to oil and gas 322
297. Possession of surface not adverse to owner of oil or gas 323
298. Possession of oil operator not adverse to owner of surface 325
299. Acquiring right to oil or gas under statute of limitation 325
300. Receiver — title in dispute — injunction 326
301. Accounting . . i 327
CHAPTER XIV.
RESERVATION AND EXCEPTION.
302. Distinction between reservation and exception 328
303. Severance of mineral by reservation or exception 329
CONTENTS. ^^
SEC. PAGE.
.304. Reservation of "all minerals" includes oil and gas 329
305. Reservation of right to drill for oil restricted 332
306. Ownership of gas or oil beneath public highways, rivers or sea. . .332
307. Reservation or exception subject to lien of judgment 334
308. Wife's interest in reservation — construction 334
309. Location of oil claim on public lands 335
CHAPTER XV.
PARTNERSHIPS.
310. Mining partnerships applicable to gas and oil operations 336
31 1. Tenants in common not partners 337
312. By agreement a mining association becoming an ordinary partner-
ship 338
313. Mining agreements that create ordinary partnerships 339
314. Working a mine together creates a mining partnership 340
315. Selection of a partner. — Sale of interest 341
316. Tenants in common usually do not become partners 342
317. Illustration of what makes a mining partnership 343
318. Promoters — Prospectors 345
319. Life of mining partnership — dissolution 346
320. Partition and accounting works a dissolution 347
321. Majority control 347
322. Power of partner in mining or oil enterpri.se 347
323. Partner's lien 350
324. Liability of incoming partner 350
325. Each partner liable for all partnership debts 351
326. Limited partnerships 351
CHAPTER XVI.
MECHANICS' LIENS.
327. Lubricating oil 3.53
328. Labor or material must be furnished under a contract 353
329. For what material furnished a lien may be obtained 354
330. For what labor a lien may be obtained 356
331. Overseer, custodian or superintendent entitled to a lien 35>
332. Upon what interest in land lien may be acquired 359
333. Lien on oil well 359
334. Forfeiture of lease 360
335. Retroactive eflfect 361
336. Priority of liens 361
337. Notice of claim of lien — description of land 362
338. Assignment of claims .V. 363
339. On plant of public gas company 363
340. Oil refinery — paraffine works 364
XVI CONTENTS.
CHAPTER XVII.
MOKTGAGES.
ART.
1. Mortgage of oil or mining property.
2. Mortgage of gas plant.
ARTICLE 1.
MORTGAGE OF OIL OR MINING PROPERTY.
SEC. PAGE.
341. Leasehold may be mortgaged by lessee 365
342. Lessor may mortgage premises 360
343. Mortgage of oil or mining lease in Pennsylvania 368
344. Mortgagor may remove gas, oil and minerals 370
345. Mortgagor in possession 370
346. Mortgagee in possession 371
347. Mortgagee in possession, English rule 373
ARTICLE 2.
GAS PLANT.
348. Gas plant 380
CHAPTEE XVIII.
TRANSPORTATION AND EMINENT DOMAIN.
349. Scope of chapter 382
350. Transportation of gas or oil a public use 382
351. Carriers of oil — tank cars 38 1
352. Transportation from state cannot be prevented 384
353. Transportation by pipe-line. — Inter-state commerce 385
354. Regulation of transportation 386
355. Ownership of oil in pipe-lines 388
356. May be endowed with powers of eminent domain 388
357. Artificial gas companies 38!)
358. Foreign companies excluded from use of power of eminent domain. ■"JOw
359. Number of lines that can be laid in right of way acquired 3!)1
360. Laying pipes in country highway 391
361. Measure of damages, for taking right of way 391
362. Damages occasioned by gas company's trespass on land 393
363. Prospective damages for fires and explosions 393
364. Removal of pipe line, damages 394
365. Pipe line crossing right of way of railroad company 394
366. Revocation of license 355
367. Route, specifying in petition — more than one route 395
368. Coal mine beneath pipe line — support 395
369. Well pipe passing through coal mine 397
CONTENTS. ^V"
CHAPTER XIX.
TRANSPORTATION OF OIL AND GAS.
SEC. PAGE.
370. Limit of discussion 398
37 L Injuries occasioned in transporting oil by reason of defective
cars or track 398
372. Defective oil tank — car — remote liability — intervening agency.
Crude petroleum not a dangerous agency 372
373. Oil shipped on trains carrying other goods 404
374. Shippers liability to servant of carrier. — Naphtha — petroleum
— dangerous agency 404
375. Injury to passengers — Train wreck 405
376. Curiosity seekers. — Exploding oil 407
377. Allowing oil to escape from pipe line 408
378. Inspection of pipe line 408
379. Oil illegally stored at railroad station 409
380. Storing oil in warehouse 409
381. Thief setting oil on fire 410
CHAPTER XX.
LEGISLATIVE AND MUNICIPAL CONTROL.
382. Gas a dangerous agency — police powers 411
383. Regulating pressure in pipes 412
384. Prohibiting transportation of gas beyond the state 415
385. Plugging abandoned wells — waste of gas 415
386. Preventing waste of gas — Flambeau lights 417
387. Waste of gas in operating oil well 418
388. Inspection of oil — tests 418
389. Ordinance regulating storage of oil 419
390. Regulating sale of naphtha by United States 419
391. A charter is a contract 419
392. City cannot fix rates without statutory authority 421
393. Municipality regulating rates after ordinances granted 421
394. Rates fixed in ordinance granting franchise 422
395. Rates fixed by city in its consent to assignment of franchise
right 424
396. Gas company accepting provisions of subsequent ordinance 424
397. Prohibition to change for specified time 425
398. Police power. — Rates 426
399. Municipality regulating gas companies 426
400. Power to change rates — rates established must be reasonable. . . .427
401. Gas companies quasi public corporations — rates may be
changed "^ 43 v
402. Same continued 436
403. Same continued — rates may be changed 439
404. Municipality delegating power to change rates 442
^^"^ CONTENTS.
SEC. PAGE.
405. Annexing territory after contract made 443
406. Police power regulations 444
CHAPTER XXI.
CONTRACTS FOR MUNICIPAL LIGHTING.
407. Power to make contract 445
408. Constitutional or statutory limitations on indebtedness 447
409. Length of term of contract 451
410. Extending term of contract 454
411. Bids for lighting 455
412. How contract executed 456
413. Liability of city for breach of contract — damages 457
414. Assignment of lighting contract 459
415. Rescission of contract — breach 460
416. Discontinuing use of gas 461
417. Changing contract 462
418. Gas furnished not covered by contract. — No contract 462
419. Municipality extending limits after making contract 463
420. Municipality receiving light under a void contract 464
421. Contracts void for uncertainty 465
422. Moonlight schedule 465
423. The price to be paid 466
424. Free light 466
425. Exemption from taxation in fixing price of gas 468
426. Cost of light, out of what fund paid 468
427. Appropriation for light, when necessary to validity of contract. . .468
428. Exhaustion of appropriation as a defence 469
429. Tax to pay for gas or to support gas plant 469
430. Assigning cost of public lighting upon abutting property — Cost
of municipal plant 470
431. Mandanms to compel auditing or payment of bills 471
432. Action to recover for gas supplied 471
433. Interest 472
434. Lamps — posts 472
435. United States revenue tax 473
436. Waiver as to quality of gas or light 474
437. Extending mains, failure to pay for light 474
438. Receiver bound by contract 474
439. Municipal officer interested in contract 475
CHAPTER XXII.
MONOPOLISTIC GRANTS AND CONTRACTS.
440. Division of subject 477
441. Legislature may authorize monopolistic grants 478
442. Same continued. — Pennsylvania 481
CONTENTS. XIX
SEC. PAGE.
443. Same continued 484
444. Statute authorizing exclusive grant 48.5
445. A grant to use of streets to exclusion of all others must rest on
statutory power 486
446. Grant of exclusive franchise strictly construed 489
447. Legislature cannot revoke monopolistic clause of company's
charter 493
448. Municipality agreeing not to compete with gas company 49.5
449. Legislature may not authorize monopolistic grants 498
450. Estoppel to contest validity of monopolistic grant ratification. . . .498
451. A federal question 499
452. Monopolistic clause does not avoid whole contract 500
453. Enjoining passage of ordinance 500
454. Forfeiture of exclusive franchise 500
455. Exclusive franchise for artificial gas does not exclude natural gas. 501
456. Extension of time for completion of work. Additional require-
ments 501
457. Gas works built under void grant or franchise 502
458. Municipality's right to purchase existing works is optional 502
459. Unlawful combinations between gas companies 503
460. Granting privilege to use streets does not require a general ordi-
nance — general ordinance regulating streets 503
461. Contracts for light, length of term 505
462. Dating contract ahead 509
CHAPTEE XXIII.
STREETS AND HIGHWAYS.
463. Definitions — street a highway 512
464. Control of streets or highways 512
465. Use for private purposes 513
466. Consent of municipality to occupy streets necessary 514
467. Right to a franchise not property of municipality 516
468. When consent of municipality not necessary 516
469. Nature of a grant to occupy streets or highways. — A mere privi-
lege 518
470. Nature of grant to occupy streets or highways. — A franchise 521
471. Acceptance of grant 522
472. Gas company must comply with conditions of grant 523
473. Grant to occupy streets construed strictly 524
474. What streets company may ocupy. — Sidewalk 525
475. Territory annexed to another municipality after grant made 525
476. New streets, right to occupy. — No streets specified 526
477. Sale or assignm.ent of right in streets 527
478. Change of use of franchise. — Natural gas ?T 528
479. Ordinance void. — Estoppel 530
480. Gas company occupying streets is subject to municipal regula-
tions 531
XX CONTENTS.
SEC. PAGE.
481. Injunction to protest company's rights in streets 534
482. Grant before companj' is organized 534
483. Length of grant of franchise 534
484. Termination of life of corporation before expiration of franchise. .535
485. Consolidation of gas companies ' 535
486. Town becoming a city 536
487. Injunction to restrain laying of pipes in streets 537
488. Pipe laid in street unlawfully laid out 537
489. Revocation of grant 538
490. Forfeiture of right to occupy streets for failure to perfom duty. .539
491. Action to declare forfeiture. — Quo warrants 539
492. Waiver of right to declare forfeiture 541
493. Changing grade of street 541
494. Tearing up streets. — Obstruction. — Indictment 542
495. Cutting into modern pavements. — Repairs. — Permission 543
496. Injury to pipes in repairing streets 545
497. Support of gas mains 546
498. Gas boxes in street 547
499. Leaving gasposts in street 547
500. Pipes in streets not an additional burden 548
501. Pipes laid in navigable river 548
502. Grant right to use suburban highway. — Compensation to abutting
landowner 549
503. Condemnation of landowner's interest in highway 550
504. Landowner acquiescing in occupation of rural highway. — Injunc-
tion. — Estoppel 55()
505. Pipe lines in country highway an additional burden on easement. 552
506. Consent of county — public highways, crossing 553
507. Revocation of license to use highway 554
508. Abutting landowner removing pipe lines 554
509. Company may not remove pipes unlawfully laid in rural high-
way 554
510. Pipes on surface of highway or street 555
CHAPTER XXIV.
MUNICIPALITY SUPPLYING GAS.
511. Municipality may be authorized to own gas plant 557
512. Sufficiency of statute to authorize municipality to furnish gas for
commercial purposes 559
513. Insufficiency of statute to authorize a municipality to furnish
commercial gas 562
514. Construction of municipal charters 563
515. Municipality's profit 564
516. Competition with private plant 565
517. Election to authorize purchase or erection of plant 5n">
518. Municipality must be sole proprietor of plant. — Taking stock. ..567
519. Right to purchase plant of gas company «''68
CONTENTS. ^^^
SEC. PAGE.
520. Trustees for gas works 569
521. Sale of municipal plant 571
522. Municipality may lease its own gas works 572
52.3. Rules and regulations 573
CHAPTER XXV.
THE GAS COMPANY AND CONSUMER.
524. No requirement at common law 574
525. Company must supply gas 576
526. No discriminations 578
527. Failure of supply of natural gas. — Discrimination 580
528. Supply only to abutting property owners 581
529. Extension of mains or pipes 582
530. Inspection of premises 583
531. Mandamus to compel supply 584
532. Mandamus to compel furnishing of gas 586
533. Penalties for failure to supply gas. — Damages 586
534. Damages for failure to supply gas. — Sickness 589
535. Limiting liability for failure to supply gas 591
536. Application for gas 592
537. Rules and regulations 594
538. Subscribing to rules and regulations 595
539. Price to be charged 596
540. Payment in advance 600
541. Deposits 601
542. Discrimination in use. — Rates 602
543. Classification of customers. — Rates 603
544. Recovering back overcharges 604
545. Collection of rents. — Action 605
546. Collection of rents by distress 606
547. Shutting off gas for failure to pay 607
548. Injunction to prevent cutting off gas supply. — Rates 612
549. Consumer's right to discontinue use of gas 613
550. Ownership of supply pipe 315
CHAPTER XXVI.
METERS AND MIXERS.
551. Definitions 617
552. Who must furnish 617
553. Control of meter 6iy
554. Unreasonable requirements j,^. ...... 621
555. Inspection of meters by company 621
556. Official inspection and tests 622
557. Officially tested meters conclusive 622
558. Measurements of quantity of gas used 623
^^" CONTENTS.
SEC. PAGE.
559. Delivery of gas 624
560. Rules and regulations concerning 624
561. Extra charg s for meters and mixers. — Government tax 625
562. Requiring use of a certain quantity of gas per month or pay a
meter rent 6z0
563. Discrimination in use of meter 626
564. Removal of meters 627
CHAPTER XXVII.
FIXTURES.
ART.
1. Domestic fixtures.
2. Trade fixtures.
3. Oil and gas lease fixtures.
565. Division of subject 628
ARTICLE 1.
DOMESTIC FIXTURES.
566. Intent — common law — public policy 628
567. Agreement — innocent purchaser — injury to freehold 630
568. Gas chandeliers — stoves — meters, etc 631
569. Judicial sale of premises 633
570. Gas fixtures may pass to vendee 633
ARTICLE 2.
TRADE FIXTURES.
57L Between mortgagor and mortgagee 636
572. Gas pipes in houses 636
573. Landlord and tenant 637
574. When tenant must remove 63.S
ARTICLE 3.
OIL AND GAS LEASE FIXTURES,
575. Coal and mineral leases 640
576. Oil and gas lease fixtures 642
577. Conveyance or mortgage of fixtures 644
578. Special contract controls 647
579. Gas and oil pipe lines 648
CHAPTER XXVIIL
NUISANCES.
580. Scope of chapter 650
581. Pollution of well or spring by artificial gas 650
CONTENTS. -^^^'^
SEC. PAGE.
582. Pollution of running streams G53
583. Pollution of subterranean waters 658
584. Damages occasioned by storing or bringing oil on land (501
585. Gases destroying trees and vegetation 602
586. Noisome smells 663
587. Odors from operation of oil wells and works 665
588. Other disagreeable odors in neighborhood 660
589. Degree of annoyance. — Question for jury 667
590. Gas or oil well near house or building 668
591. Business authorized by government no defence 671
592. Duty of owner to prevent continuance of damages 672
593. Evidence 673
594. Injunction 673
595. Enjoining erection of gas plant 675
596. Former recovery a bar 675
597. Indictment for nuisance 676
598. Waste of'najtural gas or oil 676
CHAPTER XXIX.
LEAKS AND EXPLOSIONS.
599. Duty of gas companies in general 680
600. Care required of gas companies 681
601. Gas company must keep its gas constantly under control 682
602. Degree of care required of gas company 685
603. Night Avatchman 687
604. Gas company's act or neglect must have caused the damage 688
605. Two or more defendants liable 691
606. Statute permitting recovery although there is no negligence 694
607. Explosion occasioned by a violation of a statute 695
608. Laying gas main in navigable river 695
609. Overwhelming disaster 696
610. Burden of proof 697
611. Presumption of negligence does not arise from proof of explosion. 608
612. Presumption of negligence arising from proof of explosion 702
613. Stop-cock on street line 703
614. Intervening agency 704
615. Inspection of pipes or mains ,. . .705
616. Duty to make repairs immediately. — Available force 709
617. Notice of leaks 710
618. Notice — failure to discover place of leak 712
619. Notice of leak, when not necessary to fix liability 713
620. Evidence of notice to gas company of danger to mains 7Ii
621. Evidence of other leaks 714
622. Evidence of leaks > 715
623. Breaks occasioned by ordinary use of streets 716
624. Action of frost 716
625. Pipes breaking from lack of support. — Excavations near pipe line. 717
XXIV
CONTENTS.
SEC. PAGE.
626. Property owner's duty to notify gas company of leaks 71 &
627. Company misleading plaintiff as to extent of danger 721
628. Municipality operating plant 721
629. Gas following supply pipe from main — percolating through soil.
— Sewer 722
630. Withdrawing gas from mains without notice 723
631. Undue pressure in mains 724
632. Evidence of undue pressure at other places 725
633. Explosion caused by act of servant of gas company 727
634. Company undertaking to repair consumer's pipes or fixtures 728
635. Injury to shade trees — shrubbery 729
636. Illuminating gas driving sewer gas into house 730
637. Explosion caused by act of third person 730
638. Gas fitter igniting escaping gas 733
639. Negligence of fellow servant 735
640. Person on premises by license 730
641. Guest or inmate of family may recover from gas company where
owner is negligent 737
642. Lessee's right of action against the gas company 737
643. Third person causing gas to escape, liability 737
644. Gas turned on by owner or stranger 738
645. Landlord's right of action against tenant 740
646. Tenant's right of action against landlord 740
647. Owner of premises liable to injured person 741
648. Plaintiff must show due care on his part. — Contributory negli-
gence 742
649. Owner removing from his premises 743
650. Duty of property owner to cut off supply of gas 744
651. Searching for leaks with a light 745
652. Contributory negligence a question for the jury 749
653. Negligence of parent, wife or servant 750
654. Contributory negligence of tenant may bar landlord, — reversion-
ary interest 752
655-. Negligence of contractors. — Lessee 753
656. Right of action over 755
657. Liability of gasf.tter 755
658. Evidence to show due care on gas company's part 755
659. EiXpert evidence to show effect on electrolysis 757
660. Evidence in cases of inhalation of gas 757
661. Expert evidence on inhalation of gas 759
662. Proof of effect upon growing vegetation or grass 760
663. What acts of negligence a question for the jury 761
CHAPTER XXX.
INJURIES NEGLIGENTLY CAUSED BY OIL AND GAS.
664. Scope of chapter 769
665. Fire on railroad communicating to refinery 770
CONTENTS. XXV
SEC. PAGE.
666. Neglect in not providing stop-cock. — Injury to servant 770
667. Injuries from shooting wells 775
668. Oil escaping into sewers 776
669. Injury occasioned by exploding gasoline fire-pot 777
670. Use of false brands. — Explosion 778
671. Negligent care of grounds. — Fire communicating to adjoining
houses 778
672. Oil escaping from and exploding refinery 779
673. Rescuer injured by negligence of an oil or gas company 780
674. Minor employee's oil-soaked clothes catching fire 781
675. Explosion of benzine used in paint 781
676. Servant of oil company injured by defective appliances 782
677. Injuries to servant of purchaser — sale in violation of statute. . . .783
678. Sale of oil of low fire test, explosion. — Deception 785
679. Implied warranty m sale of illuminating oil 786
680. Gas box in sidewalk 787
681. Negligence of contractor 787
682. Streets rendered dangerous by laying gas mains 788
683. Imperfectly constructed gas building 789
684. Exploding tank injuring servant 790
685. Servant entitled to safe place in which to work 791
686. Servant injured by use of defective ladder 792
CHAPTER XXXI.
INSURANCE.
687. Extent of discussion 795
688. Conflict between rider or written part and printed part of
policy 795
689. "On the premises." 795
690. "Contiguous" to insured building 797
691. Oil for illumination 798
692. Time of filling lamps 798
693. Failure to extinguish lamps 799
694. The oil prohibited 799
695. Prohibited user not occasioning loss 801
696. Owner himself must violate terms of policy — tenant ,...802
697. Explosions — no clause of exemption 802
698. Explosions of oil or gas 804
699. Failure to disclose use of oil 806
700. Warranty — hazard not increased 806
701. Particular use allowed 807
702. Extent of prohibited usage 807
703. Occasional use of hazardous articles .V: 807
704. Increase of risk 808
705. Proof of custom or the usual practice 809
706. Implied consent to prohibited use. — Custom 810
^^^^ CONTENTS.
SEC. PAGE.
707. "Storing" — "keeping" 811
708. Store 814
709. Grocery 815
710. Watchmaker 816
711. Furniture store — wagonshop • 816
712. Factory 817
713. Drug store 81?
714. Laundry 818
715. Patent leather factory 818
716. Painter — paintshop or factory 819
717. Torch to remove paint from house 819
718. Cleaning clothes. — Destroying vermin 821
719. Cleaning or lubricating machinery 821
720. Waiver by knowledge of acquiescence in use of building 821
721. Waiver by knowledge of acquiescence in use of building continued . 823
722. Waiver by receiving premium with Icnowledge of prohibited user. .825
723. Waiver by adjusting loss or accepting proof without objection. . . .825
724. Insurance company's right of action to recover damages. Effect
of insurance on right of action 820
725. Gas company causing fire liable to insurance company 827
726. Inhaling gas, accident or life insurance policy 828
CHAPTER XXXII.
TAXATION.
727. Scope of chapter 831
728. When corporate stock taxed property of company exempt 831
729. Exempt as a manufacturing company 832
730. Gas mains of city plant taxed as personal property 832
731. Assessing franchise 834
732. Valuation of stock — certificates as to surplus 834
733. Exemption of municipalities from taxation 835
734. Rates charged consumers not taxes 835
735. Cost of inspection of meters 835
736. Object of tax — Ohio statute unconstitutional 836
737. United States reventie 839
738. Set off ._ 837
739. Product in pipe line. Interstate commerce 837
740. Exemption from taxation 838
741. Taxes on leases and minerals 839
CHAPTER XXXIII.
MISCELLANEOUS.
742. Artificial gas statutes do not relate to natural gas. 842
743. Larceny of gas 842
744. "Shut off gas," meaning 843
CONTENTS, xxvii
SEC. PAGE.
745. Contract for purchase of oil 844
746. Term " fire proof oil " as a trademark 844
747. Gas. company's liability for supplies 844
748. Gas not a necessary of life 845
APPEXDIX.
I'orms of gas and oil leases and agreements 840
IXDEX.
index 874
TABLE OF CASES.
(References
Abendroth v. Greenwich (29 Conn.
247; 29 Conn. 356), 563
Aeheson v. Stevenson ( 146 Pa. St.
299; 23 Atl. Rep. 331, 336), 33
Ackley v. Phoenix Ins. Co. ( 25 Mont.
272; 64 Pac. Rep. 665), 811, 812,
818
Acklin V. Waltermier (10 Ohio C. C.
Dec. 629; 19 Ohio C. C. Rep. 372),
226, 359, 360
Acme Coal Co. v. Stroud (5 Leek.
Leg. News (Pa.) 169), 218
Acton, Ex parte (4 L. T. (N. S.)
261), 633
Adair v. Southern, etc., Ins. Co.
(107 Ga. 297; 33 S. E. Rep. 78),
802
Adams v. Briggs Iron Co. (7 Cush.
361), 77, 299
Adams v. Harrington (114 Ind. 66;
14 N. E. Rep. 603), 512
Adams v. Ore Knob, etc., Co. (7
Fed. Rep. 634). 76. 192. 199
Adams v. Stage (18 Pa. Super. Ct.
Rep. 308), 107. 114, 115. 275
Adams Express Co. v. Cincinnati
Gaslight & Coke Co. (10 Ohio
Dec. 389; 21 Wkly. L. Bull. 18),
586. 607. 627
Aderhold v. Oil Well Supply Co.
(158 Pa. St. 401; 28 Atl. Rep.
22), 64. 112, 224, 226. 232, 2.34,
236, 267, 269
Adrian W. W. v. Adrian (64 Mich.
584; 31 N. W. Rep. 529), 453
are to pages.)
.^tna Ins. Co. v. Boon (95 U. S.
117), 803
.Etna Ins. Co. v. Humboldt, etc.,
Ny. Co. (3 Dill. 2), 827
African Territories v. VVallington
([1898] A. C. 309; 67 L. J. Q. B.
470; 78 L. T. 426; 46 W. R. 545),
315
Agerter v. Vandergrift (138 Pa. St.
576; 27 W. N. C. 230; 21 Atl.
Rep. 202), 183, 193
Agna Pura Co. v. Las Vegas ( 10 N.
M. 6; 60 Pac. Rep. 208; 50 L.
R. A. 224), 428-440
Ahrns v. Chartiers Valley Gas Co.
(188 Pa. St. 249; 41 Atl. Rep.
739), 101, 127, 132, 189, 278, 327
Akin V. Marshall Oil Co. (41 Atl.
Rep. 748; 188 Pa. St. 614; 188
Pa. St. 602), 109, 201, 225, 234,
245, 247, 254. 258, 307, 327
Akron Water Works Co. v. Brown-
less ( 1 Ohio Dec. 1 ; 10 Ohio C. C.
620), 461
Albert v. Davis (49 Neb. 579; 68
N. W. Rep. 945), 618
Alden's Appeal (93 Pa. St. 182),
329
Alderson v. Alderson (46 W. Va.
242; 33 S. E. Rep. 228), 290
Alexander v. Ellison (79 Ky. 148),
308
Alexandria, etc., Co. v. Irish ( 16
Ind. App. 534; 44 N. E. Rep.
680), 53
Alexandria, etc., ^. v. Painter ( 1
Ind. App. 587; 28 N. E. Rep.
113), 725
TABLE OF CASES.
(References are to pages.)
Alexandria Mining, etc., Co. v. Irish
(16 Ind. App. 534; 44 N. E. Rep.
680), 695-698-705, 713, 714, 723,
725
Algonquin Coal Co. v. Northern,
etc., Co. (162 Pa. St. 114; 28 Atl.
Rep. 402), 63
Allegheny v. People's, etc., Co. (172
Pa. St. 632; 26 Pittsb. L. J. (N.
S.) 410; 37 W. N. C. 442; 33 Atl.
Rep. 704), 523
Alleglieny Heating Co. v. Rohan
(118 Pa. St. 223; 11 Atl. Rep.
789), 735-768
Allegheny Oil Co. v. Snyder (106
Fed. Rep. 764; 45 C. C. A. 604),
84, 85, 104, 120, 145, 146
Allegheny Oil Co. v. Bradford Oil
Co. (21 Hun 26, affirmed 86 N. Y.
638), 190
Allegheny Oil Co. v. Bradford Oil
Co. (86 N. Y. 638, affirming 21
Hun 26), 199, 200
Allen V. Aeyrot Factory ( 82 Ga. 76 ;
8 S. E. Rep. 68), 790
Allen V. New Gas Co. (L. R. 1
Exch. Div. 251; 45 L. J. Exch.
790), 790
Allen V. Palmer (136 Pa. St. 556;
26 W. N. C. 514; 20 Atl. Rep.
516), 220
Alliance, etc.. Gas Co. v. Dublin
(Gas Jr., June 26, 1900, p. 1733,
and July 10, 1900, p. 100; 49 Gas
Jr. 765, 811; 50 Gas Jr. 1018),
545
Alliance, etc., Co. v. Taaffe (27 Gas
J. 206), 624
Allison's Appeal (77 Pa. St. 221),
117. 120
Allison V. Coal Creek, etc., Co.
(3 Pick. 60; 9 S. W. Rep. (Tenn.)
226), 278
Allison Manufacturing Co. v. Mc-
Cormick (118 Pa. St. 519; 12 Atl.
Rep. 273), 781
Aloway v. Braine (26 Beav. 575;
33 L. T. 100), 314
Alton Ry., etc., Co. v. Foulds (81111.
App. 322, affirming 190 HI. 367;
60 N. E. Rep. 537 ) , 686
Altoona v. Shellenberger (6 Pa.
Dist. Rep. 544), 573, 610
Altoona Gas Co. v. Gas Co. of Al-
toona (17 Pa. Co. Ct. Rep. 662),
530
American, etc., Co. v. State (46 Neb.
194; 64 N. W. Rep. 711; 30 L. R.
A. 447), 577, 600, 610
American Fire Ins. Co. v. Nugent
(7 Ky. Law Rep. 597), 814, 822
American, etc., Ins. Co. v. Green
(16 Tex. Civ. App. 531; 41 S. W.
Rep. 74), 809, 811
American, etc., Asn. v. Yount (101
U. S. 352), 390
American Steam, etc., Ins. Co. v.
Chicago, etc., Co. (57 Fed. Rep.
294; 21 L. R. A. 572), 803
American Trust Co. v. North
Quarry Co. (31 N. J. Eq. 89),
370, 371
American Window Glass Co. v. Wil-
liams (66 N. E. Rep. (Ind. App.)
912), 33, 145, 148, 166, 172, 174,
176, 196, 197, 211, 217, 257
American W. W. Co. v. Farmers'
Loan and Trust Co. (73 Fed. Rep.
956; 20 C. C. A. 133; 36 U. S.
App. 563), 381, 460-527
Ames V. Ames (160 111. 599; 43 N.
E. Rep. 592), 298
Aminous V. South Penn. Oil Co. (47
W. Va. 610; 35 S. E. Rep. 1004),
123, 210
Ampt V. Cincinnati (6 Ohio N. P.
401), 515, 548
Ampt V. Cincinnati (56 Ohio St. 47;
37 Wkly. L. Bull. 161; 46 N. E.
Rep. 69 ; 35 L. R. A. 737, modify-
ing 12 Ohio C. C. 119; 1 Ohio C.
D. 356), 568
Anaconda, etc., Co. v. Butte, etc.,
Co. (17 Mont. 519; 43 Pac. Rep.
924), 340, 345
TABLE OF CASES.
(References are to pages.)
Anderson v. Hapler (34 111. 435), 44
Anderson v. Savanah (69 Ga. 472),
786
Anderson v. Standard Gaslight Co.
(17 N. Y. Misc. 625; 40 N. Y.
Siipp. 671), 687-709, 712, 721, 728
Andrew v. National Foundry (76
Fed. Rep. 166; 22 C. C. A. 110;
39 L. R. A. 139; 46 U. S. App.
281; 77 Fed. Rep. 774; 23 C. C.
A. 454; 46 U. S. App. 619), 380,
381
Andrews v. North River, etc., Co.
(23 N. Y. Misc. Rep. 512; 51 N.
Y. Supp. 872), 588, 596
Andrews v. Senter (32 Me. 394),
199
Anoka W. W., etc., Co. v. Anoka
(109 Fed. Rep. 580), 446-447-502
Appeal of Alegheny (11 Atl. Rep.
(Pa.) 658), 518
Apfelbach v. Consolidated Gas Co.
(54 Atl. Rep. (Pa.) 359), 757-758
Appleby v. Astor Fire Ins. Co. (54
N. Y. 253), 809
Archer v. Merchants, etc., Co. (43
Mo. 434), 817
Ardesco Oil Co. v. Gilson (63 Pa.
St. 146), 782
Argall V. Pitts ( 78 N. Y. 239 ) , 367
Arkell v. Commerce Ins. Co. (69
N. Y. 191; 25 Am. Rep. 168,
affirming 7 Hun 455), 796-798
Arnibuster v. Auburn Gaslight Co.
(18 N. Y. App. Div. 447; 46 N.
Y. Supp. 158). 682-687, 729, 826
Armstrong v. Caldwell (53 Pa. St.
284), 321, 325
Arnold v. Stevens (24 Pick. 106),
323
Ascha V. Fitch (46 Pac. Rep. (Cal.)
298), 362
Ashenfelter v. Williams (7 Colo.
App. 332; 43 Pac. Rep. 664), 340
Asher v. Hutchinson Water, etc.. Co.
(71 Pac. Rep. 813), 534
Aspen Mining, etc., Co. v. Rucker
(28 Fed. Rep. 220), 298
Astor V. Hoyt (5 Wend. 603), 365
Astor V. Miller (2 Paige Ch. 08),
365
Atchison St. Ry. Co. v. Missouri
Pacific Ry. Co. (31 Kan. 600; 3
Pac. Rep. 284), 488
Atherton v. Betel, etc., Ins. Co. (91
Me. 289; 39 Atl. Rep. 1006), 808
Atkinson v. New Castle W. W. Co.
(L. R. 2 Exch. Div. 441; 46 L. J.
Exch. 775; 25 W. R. 794; 36 L.
T. 761, reversing L. R. 6 Exch.
Div. 404; 20 W. R. 35), 587
Atlanta v. Gate City Gaslight Co.
(71 Ga. 106), 516
Atlantic Water Works Co. v. Atlan-
tic City (39 N. J. Eq. 367), 481
Atlantic City W. W. Co. v. Atlantic
City (48 N. J. L. 378; 6 Atl. Rep.
24), 479, 498
Atlantic City Water Works Co. v.
Consumers' Water Co. (44 N. J.
Eq. 427; 15 Atl. Rep. 581), 481-
492-498
Atlantic City W. W. Co. v. Reed
(50 N. J. L. 665; 15 Atl. Rep.
10), 454. 468, 469, 499
Atlantic Dock, etc., Co. v. Leavitt
(54 N. Y. 35; 13 Am. Rep. 556),
102
Attersoll v. Stevens (1 Taunt. 183),
42
Attorney-General v. Cambridge Con-
sumers' Gas Co. (L. R. 4 Ch. 71;
38 L. J. Ch. 94; 19 L. T. (N. S.)
508; 17 W. R. 145, overruling L.
R. 6 Eq. 282; 38 L. J. Ch. 94.
Ill; 17 W. R. 145; 17 Gas Jr.
427, 593, 867), 537, 543, 674
Attorney-General v. Gaslight Co. (7
Ch. Div. 217; 47 L. J. Ch. 534;
37 L. T. 746; 26 W. R. 125), 665,
671, 674
Attorney-General v. Manchester
Corporation ^893] 2 Ch. 87;
62 L. J. Ch. 459; 68 L. T. 608;
41 W. R. 459; 57 J. P. 343; 3 R.
427), 663, 674
TABLE OF CASES.
(References are to pages.)
Attorney-General v. Mayor of St.
Helens (W. N. (1870) 150), 569
Attorney-General v. Sheffield Gas
Consumers' Co. (3 De. Gex. McN.
and G. 304; 17 Jur. 677; 22 L.
J. Ch. 811; 2 Gas J. 396, 419;
19 E. L. and Eq. 639; 1 W. R.
185), 537-542
Atwood V. Small (7 B. & C. 390),
345
Audenried v. Woodword (4 Dutch.
(N. J.) 265), 641
Aurora Gaslight Co. v. Bishop (81
111. App. 493), 713, 716, 717, 730,
750
Austin V. Austin Gaslight Co. (69
Tex. 180; 7 S. W. Rep. 200), 835
Austin V. Bartholomew ( 107 Fed.
Rep. 349; 46 C. C. A. 327), 460-
528
Austin V. Cambridgeport (21 Pick.
215), 185
Austin V. Huntsville Coal, etc., Co.
(72 Mo. 535), 76
Avon Coal Co. v. McCulloch (59
Md. 403; 43 Am. Rep. 560), 620
Aye V. Philadelphia Co. (193 Pa. St.
457; 44 Atl. Rep. 556), 104, 127,
132
B
Babcock v. Fitchburg R. R. Co.
(140 N. Y. 308; 35 N. E. Rep.
596), 701
Babcock v. Scoville (56 111. 461),
238
Babcock v. Stewart (58 Pa. St.
179), 351
Bacon v. U. S., etc., Co. (123 N. Y.
304 ; 25 N. E. Rep. 399 ; G. L. R.
A. 617, reversing 3 N. Y. Supp.
237), 828
Badger Lumber Co. v. Marion, etc.,
Co. (48 Kan. 187; 30 Pac. Rep.
117, affirming 29 Pac. Rep. 476),
363
Badger v. Platte (OS X. H. 222;
44 Atl. Rep. 296), 827
Bagley v. Consolidated Gas Co. (13
N. Y. Misc. Rep. 6; 34 N. Y.
Supp. 187), 792
Bailey v. Citizens' Gaslight Co. (27
N. J. Eq. 196), 536
Bailey v. Fayette Gas Fuel Co. ( 193
Pa. St. 175; 44 Atl. Rep. 251; 44
W. N. C. 505), 577, 578, 597, 603
Bailey v. Haines (15 Q. B. 533; 19
' L. J. Q. B. 73; 14 Jur. 835), 345
Bailey v. Philadelphia (184 Pa. St.
594; 41 W. X. C. 529; 39 Atl.
Rep. 494; 39 L. R. A. 837, affirm-
ing 6 Pa. Dist. Rep. 727; 20 Pa.
Co. Ct. Rep. 173), 559-569, 572,
573
Baird v. Reilly (92 Fed. Rep. 884),
791
Baker v. Atherton (15 Pa. Co. Ct.
Rep. 471), 370-645
Baker v. Brennan (12 Ohio C. D.
211; 22 Ohio C. D. 241), 307, 349
Baker v. Clark (128 Cal. 181; 60
Pac. Rep. 677), 81
Baker v. Dale (3 Pitts. L. J. 190),
72
Baker v. Hart (123 X. Y. 470; 25
X. E. Rep. 948). 49
Baker v. Kellogg (29 Ohio St. 663),
103
Baker v. McDowell (3 W. & S. 358),
329
Baldwin v. Xorth Branford (32
Conn. 47), 563
Baldwin v. Ohio Oil Co. (13 Ohio
Cir. Ct. Rep. 519; 7 Ohio Dec.
.50), 127, 202, 209
Balfour v. Russell (167 Pa. St. 287;
36 W. X. C. 225; 31 Atl. Rep.
570), 126, 152, 154
Ball V. Xye (99 Mass. 582), 661
Ballard v. Tomlinson (29 Ch. Div.
115; 54 L. J. Ch. 454; 52 L. T.
942; 33 W. R. 533; 49 J. P. 692;
24 Am. L. Reg. 634), 661
Baltimore Gas Co. v. Colliday (25
Md. 1), 576, 590, 597, 607, 609
TABLE OF CASES.
(Reterences are to pages.)
Baltimore Consolidated Gas Co. v.
Getty (54 Atl. Rep. (Md.) 660),
709. 749
Baltimore, etc., Co. v. People (66
N. E. Rep. (111.) 246), 447, 566
Bank of Augusta v. Earl (13 Pet.
519, 595), 519
Bank of Ogdensburgh v. Arnold (5
Paige Ch. 38), 366
Bankart v. Tennant (L. R. 1 Eq.
141; 39 L. J. Ch. 809; 23 L. T.
137; 18 W. R. 639), 315
Barclay, Ex parte, In re Joyce (L.
R. 9 Ch. App. 576), 647
Barker v. Dale (3 Pittsb. 190), 97
105
Barksdale v. Adairston (81 Va.
764), 81, 82, 83
Barksdale v. Parker (87 Va. 141;
12 S. E. Rep. 342). 78
Barmford v. Lehigh Zinc and Iron
Co. (33 Fed. Rep. 677), 85
Barnard v. National Fire Ins. Co.
(27 Mo. App. 26), 815
Barney v. Burstenbinder ( 7 Lans.
210), 405
Barnhart v. Lockwood (152 Pa. St.
82; 31 W. N. C. 209; 25 Atl. Rep.
237), 73, 148, 163, 166, 168, 210
Barnsdall v. Boley (119 Fed. Rep.
191). 98. 99. 101, 102, 114, 182,
189, 190, 197, 198, 206, 217, 290
Barnum v. Landon (25 Conn. 137),
301
Barrett v. McAllister (33 W. Va.
738; 11 S. E. Rep. 220), 89, 92
Barrickman v. Marion Oil Co. (45
W. Va. 634: 32 S. E. Rep. 327; 44
L. R. A. 92). 687, 691, 701, 709,
725, 726
Barrs v. Lea (33 L. J. Ch. 437), 273
Barry v. Worcester ( 143 Mass. 476 ;
10 N. E. Rep. 186), 82
Bartholomew v. Austin (85 Fed.
Rep. 359; 52 U. S. App. 512; 29
C. C. A. 568), 480, 491, 498
Bartholomew v. Merchants' Insur-
ance Co. (25 la. 507; 96 Am. Dec.
65), 822
Bartlett v. Boston Gaslight Co. (117
Mass. 533), 844
Bartlett v. Boston Gaslight Co.
(122 Mass. 209; 117 Mass. 533;
19 Am. Rep. 421), 711, 720, 737,
741, 746, 749, 752, 753
Bartley v. Phillips (179 Pa. St.
175; 36 Atl. Rep. 217; 165 Pa. St.
325; 36 W. N. C. 19; 30 Atl. Rep.
842), 114. 161, 184, 186
Bartley v. Phillips (165 Pa. St.
325; 30 Atl. Rep. 842), 160, 161,
216
Bartlett v. Phillips (4 De G. & J.
414), 288
Barton Coal Co. v. Cox (39 Md. 1),
49
Bastian v. Keystone Gas Co. (27
N. Y. App. Div. 584; 50 N. Y.
Supp. 537; 4 Am. Neg. Rep. 529),
681, 682, 686, 708, 713, 728
Batchelder v. Tunbridge, etc., Co.
(84 L. T. 765; 65 J. P. 680), 672
Batcheller v. Tunbridge Wells Gas
Co. (65 J. P. 680; 84 L. T. 765),
653, 695
Batchelor v. Yates (38 Ch. Div.
112). 647
Bateman v. Bluck ( 14 Eng. L. and
Eq. 69), 512
Bath Gaslight Co. v. Claffy (74
Hun 638; 26 N. Y. Supp. 287),
420, 426, 527, 577, 578
Baumgardner v. Bro\^'Tiing ( 12 Ohio
Civ. Ct. Rep. 73; 5 Ohio C. D.
394), 166, 208
Baumgardner v. Ins. Co. ( 1 W. N.
C. 119), 817
Baxendole v. McMurray (L. R. 2
Ch. 790; 16 W. R. 32), 674
Bear River, et^. Co. v. N. Y. Mining
Co. (8 Cal. 327), 654
Beatty v. Gregory (17 la. 109; 85
Am. Dec. 546), 83, 160
TABLE OF CASES.
(References are to pages.)
Beaufort (Duke) v. Bates (3 De G.
F. and J. 381; 31 L. J. Ch. 481),
648
Beck V. O'Conner (21 Mont. 109;
53 Pac. Rep. 94), 308
Beckner v. Werner (98 Pa. St. 555),
209
Bedding v. Imperial Gaslight Co.
(7 Gas J. 418), 590
Bedford's Appeal (126 Pa. St. 117;
17 Atl. Rep. 538), 291
Bedford v. Terhune (30 N. Y. 457),
246
Begbie v. Fenwick (L. R. 8 Ch.
App. 1075), 647
Behling v. Southwestern, etc., Pipe
Lines (160 Pa. St. 359; 28 Atl.
Rep. 777), 401
Beinville Water Supply Co. v. Mo-
bile (186 U. S. 212; 22 Sup. Ct.
Rep. 820, affirming 175 U. S. 109;
20 Sup. Ct. Rep. 40), 478, 494,
502
Beittenmiller v. Bergner, etc., Co.
(12 Atl. Rep. (Pa.) 599), 736
Bel V. Balls ([1897] 1 Ch. 663; 66
L. J. Ch. 397; 76 L. T. 254; 45
W. R. 378), 314
Belfast Water Co. v. Belfast (92
Me. 52; 42 Atl. Rep. 235), 542
Bell V. Truit (9 Bush. 257), 130
Bellaire Goblet Co. v. Findlay (5
Ohio Cir. Ct. Rep. 418), 431, 570,
597, 607, 610
Bellany v. Debenham ([1891] 1 Ch.
412; 60 L. J. Ch. 166; 64 L. T.
468; 39 W. R. 257), 315
Belvidere Gaslight Co. v. Jackson
(81 111. App. 424), 673, 682, 687,
694, 703, 707
Benaivder v. Hunt (79 Tex. 383; 15
S. W. Rep. 396), 109, 210
Benedict v. Construction, etc., Co.
(49 N. J. Eq. 23; 23 Atl. Rep.
485). 412, 414, 415, 426
Benfield v. Vacuum Oil Co. (75 Hun
209; 27 N. Y. Supp. 16), 783
Benfieldside L. B. v. Consett Iron
Co. (3 Exch. Div. 54; 47 L. J.
Exch. 491; 38 L. T. 530; 26 W.
R. 114), 547
Bennett v. North British, etc., Co.
(8 Daly 471; 81 N. Y. 273; 37
Am. Rep. 501), 798
Bennett v. East Chester Gaslight
Co. (40 N. Y. App. Div. 169; 57
N. Y. St. Rep. 847), 602, 610
Bennett v. North British, etc.. Ins.
Co. (8 Daly 471), 53
Bennett v. Thompson (13 Ired. L.
146), 48
Bennington v. Smith (29 Vt. 254),
513
Benson v. Allegheny Heating Co.
(188 Pa. St. 614; 41 Atl. Rep.
729), 691
Benson v. Maiden, etc., Co. (6 Allen
149), 549
Benson, etc., Co. v. Alta, etc., Co.
(145 U. S. 428; 12 Sup. Ct. Rep.
877), 48
Bentley v. Bates (4 Y. & C. Exch.
182; 9 L. J. Exch. 30; 4 Jur.
552), 373, 378
Bently V. Lumbermen's Ins. Co. (191
Pa. St. 276; 43 Atl. Rep. 209),
808
Benton v. Elizabeth (61 N. J. L.
693; 40 Atl. Rep. 1132, affirming
39 Atl. Rep. 683), 531, 532, 533
Berger v. Hoerner (36 111. App.
360), 640
Berger v. Minneapolis, etc., Co. (60
Minn. 296; 62 N. W. Rep. 330),
062, 666
Berns v. Gaston Coal Co. (27 W.
Va. 285), 725
Berridge v. Ward (10 C. B. (N. S.)
400; 30 L. J. C. P. 218; 7 Jur.
(N. S. 876; 2 F. & F. 208), 333
Berry v. Woodburn (107 Cal. 504;
40 Pac. Rep. 802), 344
Bestwiok v. Druesby Coal Co. (129
Pa. St. 592; 18 Atl. Rep. 538),
161, 168
TABLE OF CASES,
(References are to pages.)
Bethune v. Hughes (28 Ga. 560),
488
Bettman v. Harness (42 W. Va.
443; 26 S. E. Rep. 271; 36 L. R.
A. 566), 51, 98, 120, 173, 182,
289
Bettman v. Shadle (22 Ind. App.
542; 53 N. E. Rep. 662), 189,
212, 217, 267
Bewick v. Fletcher (41 Mich. 625),
641
Bewick v. Muir (83 Cal. 373; 23
Pac. Rep. 390), 354, 362
Beyer v. Consolidated Gas Co. (44
N. Y. App. Div. 158; 60 N. Y.
Supp. 628), 724, 757, 765
Bicknell v. Austin (62 Fed. Rep.
432), 101
Biddle V. Wayne \V. \Y. Co. (7
Del. Co. Rep. 161), 552
Bienville Water, etc., Co. v. Mobile
(112 Ala. 260; 20 So. Rep. 742;
33 L. R. A. 59), 609, 612
Billings V. Alfsen Mining, etc., Co.
(51 Fed. Rep. 338), 174
Billings V. Taylor (10 Pick. 460),
287
Binghamton Bridge (3 Wall. 51),
493
Binkley v. Forkner (117 Ind. 176;
19 N. E. Rep. 753), 629, 631
Birch V. Wright ( 1 T. R. 378), 367
Bird V. Crabb (30 L. J. Ex. 318),
648
Birmingham, Ex parte (L. R. 11
Eq. 615; L. R. 11 Eq. 204), 606
Birmingham Fire Ins. Co. v. Kroe-
gher (83 Pa. St. 64; 24 Am. Rep.
147), 810, 816. 823, 824
Birmingham, etc., Co. v. Ratcliffe
(L. R. 6 Exch. 224), 605
Bishop V. North Adams Fire Dis-
trict (167 Mass. 364; 45 N. E.
Rep. 925), 391
Bishop of Winchester v. Knight (1
P. Arns. 406), 277
Bissell V. Foss (114 U. S. 252; 5
Sup. Ct. Rep. 851, affirming 4
Fed. Rep. 694; 2 McCrary 73),
340, 341
Biven v. Ohio Oil Co. (11 Ohio C.
C. Dec. 810; 21 Ohio C. C. 117,
affirmed 65 Ohio St. 507; 63 N.
E. Rep. 76), 88
Black V. Chester (175 Pa. St. 101;
34 Atl. Rep. 354), 454
Black V. Delaware, etc., Co. (24 N.
J. Eq. 455, 474), 528
Black V. Delaware, etc., R. R. Co.
(22 N. J. Eq. 130), 527
Black Lick Co. v. Saltsburg Gas Co.
(139 Pa. St. 448; 21 Atl. Rep.
432), 120, 592, 610, 611, 612
Bladen v. Philadelphia (60 Pa. St.
464), 469
Blair v. Northwestern, etc., Co. (12
Ohio Cir. Ct. Rep. 78 ; 5 Ohio Cir.
Dec. 620), 152, 156, 220, 225, 247
Blair v. Peck (1 Penny (Pa.) 247),
122
Blakeley v. Wershall (174 Pa. St.
425; 34 Atl. Rep. 564; 38 W. N.
C. 74), 289, 293
Blaker v. Sands (29 Kan. 551), 346
Blenkiron v. Great Central Gas,
etc. (2 F. and F. 437; 2 Gas J.
292, 776; 3 L. T. (N. S.) 317),
685, 763
Blewett V. Coleman (40 Pa. St. 45),
296
Blindert v. Kreiser (81 Wis. 174;
5 N. W. Rep. 324), 359
Block V. Murray (12 Mont. 545; 31
Pac. Rep. 550), 354, 359
Blondell v. Consolidated Gas Co.
(89 Md. 732; 43 Atl. Rep. 817;
46 L. R. A. 187), 620, 624
Bloodworth v. Stevens (51 Miss.
475), 251
Bloomington v. Wahl (46 HI. 489),
488 V
Bloomfield Coal, etc., Co. v. Tidrick
(99 la. 83; 68 N. W. Rep. 570),
83
TABLE OF CASES.
(References are to pages.)
Bloomfield, etc., Co. v. Calkins (62
N. Y. 386; 1 T. & C. 549), 552
Bloomfield, etc., R. R. Co. v. Rich-
ardson (63 Barb. 437), 383, 388,
390, 552, 585
Bloomfield, etc.. Gas Co. v. Calkins
(1 T. & C. (N. Y.) 549), 391,
392, 761
Bluestone Coal Co. v. Bell (38 W.
Va. 297; 18 S. E. Rep. 493), 165
BIy V. United States (4 Dill. 469),
296
Board v. Boatman's Ins. Co. (5 Mo.
App. 91), 238
Board v. Hopkinsville (95 Ky. 239;
24 S. W. Rep. 872; 44 Am. St.
Rep. 222; 23 L. R. A. 402), 451
Board v. Indianapolis (132 Ind. 27;
33 N. E. Rep. 972), 513
Board v. Indianapolis, etc., Co. (134
Ind. 209; 33 N. E. Rep. 972),
389, 391, 549, 550, 554
Board v. People (91 111. 80), 519
Board, etc., Co. v. Barnett (107 III.
507), 553
Boardman v. Wilson (L. R. 4 C. B.
57), 246
Boatman's Fire Ins. Co. v. Parker
(23 Ohio St. 85), 803
Bockover v. Post (25 N. J. L. 285),
246
Bogot V. Bogot (32 Beav. 509), 288
Bohan v. Port Jervis Gas Co. (122
N. Y. 18; 25 N. E. Rep. 246; 9
L. R. A. 711), 664, 666, 672, 685
Bonetti v. Treat (91 Cal. 223; 27
Pac. Rep. 612), 231. 245
Boone v. Stover (66 Mo. 430), 82
Boothman v. Mayor, etc., of Burn-
ley (20 Gas J. 585), 722, 763
Borland's Appeal (66 Pa. St. 470),
234
Boston V. Binnoy (11 Pick. 1), 277
Boston V. Richardson (13 Allen
160), 548
Boston Franklin, etc.. Co. v. Conditt
(19 N. J. Eq. 394), 299
Boucher v. Medverhill (1 Mont.
306), 246
Bowen v. Bowen (18 Conn. 535),
199
Bowen v. Stenson (24 Beav. 631),
317
Bowling Gi"een v. Carson ( 10 Bush.
64), 488
Boyd V. McCombe (4 Pa. St. 146),
251
Boydell v. Dummond (11 East.
142), 314
Boydston v. Meacham (28 Mo. App.
494), 237
Boyer v. Fulmer (176 Pa. St. 282;
35 Atl. Rep. 235), 162
Boyer v. Grand Rapids Fire Ins.
Co. (124 Mich. 455; 83 N. VV.
Rep. 124), 815, 797
Boyer v. Little Falls (5 N. Y. App.
Div. 1; 38 N. Y. Supp. 1114), 546
Boys V. Robinson (38 Atl. Rep. (N.
J.) 50 Pac. Rep. 347), 359
Boys V. Robinson (38 N. J. L. 813),
188, 194, 199, 211, 218
Boyston v. Miller, 298
Brace v. New York Central R. R.
Co. (27 N. Y. 269), 512
Brady v. Detroit Street, etc., Co.
(102 Mich. 277; 60 N. W. Rep.
687; 26 L. R. A. 175), 662, 666,
685, 776
Bradford Oil Co. v. Blair (113 Pa.
St. 83; 4 Atl. Rep. 218), 108,
114, 123, 231, 233, 239
Bradley v. Harkness (26 Cal. 69),
338
Braintree Water Supply Co. v.
Braintree (146 Mass. 482; 16 N.
E. Rep. 420), 503
Brand v. Hammersmith Rail Co.
(L. R. 4 H. L. 171; 38 L. J. Q.
B. 265; 21 L. T. (Va.) 238; 18
W. R. 12), 671
Brass v. Rathbone (153 N. Y. 435;
47 N. E. Rep. 905, affirming 8 N.
Y. App. Div. 78; 40 N. Y. Supp.
466), 495, 573, 607, 610
TABLE OF CASES.
(References are to pages.)
Breckenridge r. Deleware, etc., R.
R. Co. (N. J.) 33 Atl. Rep. 800),
394
Breckenridge v. Parrott (15 Ind.
App. 411; 44 N. E. Rep. 66), 112,
231, 237, 245, 259, 267, 270
Brenham v. Brenham Water Co. ( 67
Tex. 542; 4 S. W. Rep. 143), 498,
508, 542
Brick, etc., Co. v. Pond (38 Ohio
St. 65), 162
Bridgeport v. New York, etc., R. R.
Co. (36 Conn. 266), 519
Bridge Proprietors v. Hoboken ( 1
Wall. 116), 493
Briggs V. North American, etc., Ins.
Co. ( 53 N. Y. 446 ) , 804
Briggs V. Davis (81i/o Pa. St. 471),
77
Brinkley V. Hambleton (67 Md. 169;
8 Atl. Rep. 904), 244
Bristol V. Bristol, etc., W. W. (19
R. I. 413; 34 Atl. Rep. 359; 32 L.
R. A. 740), 563
Bristol, etc., Co. v. Bristol, etc., Co.
(99 Tenn. 371; 42 S. W. Rep.
19), 362, 363
Broadway, etc., Co. v. Hankey (31
Md. 346), 479
Broadbent v. Imperial Gaslight Co.
(7 H. L. Cas. 600; 3 Jiir. (N. S.)
221; 5 Gas J. 342; 9 Gas J. 751,
affirming 7 DeG. M. & G. 436 ; 26
L. J. Ch. 276; 5 Jur. (N. S.)
1319), 662, 665, 674, 676
Bromas v. Young (35 Hun 173),
365, 366
Bronson v. Lane (91 Pa. St. 153),
106
Bronx Gas, etc., Co. v. New York
(17 N. Y. Misc. 433; 41 N. Y.
Supp. 358), 451, 456, 470
Brooklyn City, In- re (143 N. Y.
596; 38 N. E. Rep. 983; 26 L. R.
A. 270), 492, 496
Brooklyn v. Fulton Municipal Gas
Co. (7 Abb. N. C. 19), 587
Brooklyn v. Jourdan (7 Abb. N. C.
23), 522
Brooks V. Hanna (19 Ohio C. Ct.
Rep. 216; 10 Ohio Dec. 480), 287,
288
Brooks V. Kunkle (24 Ind. App.
624; 57 N. E. Rep. 260), 263
Brown v. Beecher (120 Pa. St. 590;
15 Atl. Rep. 608), 64, 75, 82, 224,
350, 356
Brown v. Bragg (22 Ind. 122), 199
Brown v. Corey (43 Pa. St. 495), 77
Brown v. Corry (175 Pa. St. 528;
34 Atl. Rep. 854, affirming 4 Pa.
Dist. Rep. 645; 17 Pa. Co. Ct.
Rep. 490), 450
Brown v. Fowler (65 Ohio St.
507; 63 N. E. Rep. 76), 71, 85, 86,
99, 152, 172, 173
Brown v. Illius (25 Conn. 583), 651,
661, 665, 723
Brown v. Jaquette (94 Pa. St. 113),
342
Brown v. Kidger (3 H. &. N. 853;
28 L. J. Exch. 66), 348
Brown v. Magorty (156 Mass. 209;
30 N. E. Rep. 1021), 278
Brown v. New York Gaslight Co.
(Anthon N. P. 351), 716, 749
Brown v. Ohio Oil Co. (21 Ohio C.
C. 117; 11 Ohio C. C. Dec. 810,
affirmed 65 Ohio St. 507 ; 63 N. E.
Rep. 76), 84
Brown v. Spilman (155 N. S. 665;
15 Sup. Ct. Rep. 245, reversing
45 Fed. Rep. 291), 32, 51, 53, 97,
698
Brown v. Torrence (88 Pa. St. 1S6),
654
Brown v. Vandergrift (80 Pa. St.
142), 34, 146, 178, 182, 195, 204
Brum's ApJ^al (12 Atl. Rep. (Pa.)
855), 607, 608
Brunot's Estate. In re (29 Pittsb.
L. J. (N. S.) 105), 69, 229
TABLE OF CASES.
(References are to pages.)
Brunswick Gaslight Co. v. U. S.,
etc., Co.), 85 Me. 532; 27 Atl.
Rep. 525; 35 Am. St. Rep. 385;
43 Am. & Eng. Corp. Cas. 459),
459, 527, 546, 577
Brush Electric Light Co. v. Cincin-
nati (28 Wkly. Law Bull. 29; 27
Wkly. Law Bull. 412; 11 Ohio
Dee. 581), 455
Brush Electric Light, etc., Co. v.
Montgomery (114 Ala. 433; 21
So. Rep. 960), 462, 463
Brush Electric Light Co. v. Phila-
delphia (8 Pa. Dist. Rep. 231),
838
Brushwood Developing Co. v. Hickey
(16 Atl. Rep. (Pa.) 70; 2 Mon.
(Pa.) 65), 253, 262
Bryan v. Bancks (4 Barn. & Aid.
401), 182,
Bryant v. Poughkeepsie, etc., Ins.
Co. (17 N. Y. 200, affirming 21
Barb. 154), 816, 817
Brymer v. Butler Water Co. (179
Pa. St. 331; 27 Pittsb. L. J. (N.
S.) 285; 39 W. N. C. 439; 36
Atl. Rep. 249; 36 L. R. A. 260),
433
Bryn Mawr Water Co. v. Lower Ma-
rion Tp. (15 Pa. Co. Ct. Rep.
527; 4 Pa. Dist. Rep. 157), 542
Buchanan v. Cole (57 Mo. App. 11),
75, 79
Buchanan v. Exchange Fire Ins. Co.
(61 N. Y. 26), 798
Buckeye Pipe Line Co. v. Fee (15
Ohio C. C. 673), 388
Buckley v. Kenyon (10 East. 139),
48
Budd V. New York (143 U. S. 517;
12 S. Ct. Rep. 468), 432
Buesching v. St. Louis, etc., Co. (73
Mo. 219; 11 Rep. 675, reversing 6
Mo. App. 85). 789
Buffalo V. Buffalo Gas Co. (80 N.
Y. Supp. 1093), 618, 625, 626
Buffalo V. Webster (10 Wend. 100),
488
Buffalo Gas Co. In re (73 Fed. Rep.
191), 32
Buhl V. Thompson (3 Penny. (Pa.)
267), 161
Bullmaster v. St. Joseph (70 Mo.
App. 60), 722
Burba nk v. Pillsbury (48 N. H.
475), 102
Burdon v. Barkai (3 Giff. 412; 31
L. J. Ch. 521; 8 Jur. (N. S.)
130; 5 L. T. 573), 350
Burgan v. Lyell (2 Mich. 102; 55
Am. Dec. 53), 338, 349
Burkhardt v. Striger (67 S. W. Rep.
(Ky.) 270), 418, 419
Burlington Water Co. v. Woodward
(49 la. 58). 450
Burmester v. Norris (21 L. J. (N.
S.) Exch. 43; 6 Exch. 796; 17 L.
T. 232), 348
Burnes v. McCubbin (3 Kan. 221),
247
Burnell v. Brown ( 1 J. and W.
168). 317
Burnett v. Lynch (5 B. & C. 589;
8 D. & R. 368; 4 L. J. (0. S.) K.
B. 274), 244, 245
Burnham v. Roberts (103 Mass.
379), 277
Burrows v. March Gas & Coke Co.
(L. R. 7 Exch. 96; 41 L. J. Exch.
S.) 24), 692
Burrows v. March Gas & Coke Co.
(L. R. 7 Exch. 96; 41 L. J. Exch.
46; 26 L. T. 318; 20 W. R. 493),
584, 709, 731, 733
Burton v. Barclay (7 Bing. 745),
238
Burton v. Forest Oil Co. (54 Atl.
Rep. (Pa.), 266), 136, 140, 246
Busby V. Russell (18 Ohio CIr. Ct.
Rep. 12; 10 Ohio C. D. 23), 254,
273
Bush V. Seabury (8 Johns. 418),
488
Bush V. Sullivan (3 Greene (la.)
344; 54 Am. Dec. 506), 83
TABLE OF CASES.
(References are to pages.)
Buskirk V. King (72 Fed. Rep. 22),
120
Butcher v. Providence Gas Co. ( 12
R. I. 149; 34 Am. Rep. 626; 18
Alb. L. Jr. 372), 687, 718, /29,
735, 758, 761, 762, 764
Butchers' Union, etc., Co. v. Cres-
cent City, etc., Co. (Ill U. S.
746; 4 Sup. Ct. Rep. 652), 420,
664, 675
Butler Savings Bank v. Osborne
(159 Pa. St. 10; 28 Atl. Rep.
163), 336, 342
Butt V. EUett (19 Wall. 544), 229
Butt V. Imperial Gaslight & Coke
Co. (L. R. 2 Ch. 158; 14 L. T. R.
349; 15 Gas J. 139), 665, 674
C
Caballero v. Home Insurance Co.
(15 La. Ann. 217), 804
Cadman v. Jenkins (14 Mass. 93),
277
Cahoon v. Bayaud (123 N. Y. 298;
25 N. E. Rep. 376), 79, 90
Caldwell v. Alton (33 111. 417),
488
Caldwell v. Copeland (37 Pa. St.
427; 78 Am. Dec. 436), 77, 321,
324, 325
Caldwell v. Fulton (31 Pa. St. 475).
73, 77, 80, 105
Caley v. Portland (12 Colo. App.
397; 56 Pac. Rep. 350), 254
Caley v. Portland (71 Pac. Rep.
(Colo.) 892), 197
Calhoon v. Neely (201 Pa. St. 97;
50 Atl. Rep. 957), 160, 166
California Oil Gas Co. v. Miller (96
Fed. Rep. 12), 140, 327
Calkins v. Bloomfield, etc., Gas Co.
(1 T. & C. (N. Y.) 541), 391
Camden v. Murray (16 Ch. Div.
161; 50 L. J. Ch. 282; 43 L. T.
661; 29 W. R. 190). 279
Campbell v. Lloyd's Bank ([1891]
1 Ch. 136, note), 372, 377
Campbell v. Roddy (44 N. J. Eq.
244; 14 Atl. Rep. 279), 630, 631
Campbell v. Seaman ( 63 N. Y. 568 ;
20 Am. Rep. 567), 663
Campbell v. Wardlow (L. R. 8 App.
Cas. 641), 287
Canfield v. Ford (28 Barb. 336),
299
Capehart v. Foster (61 Minn. 132;
63 N. W. Rep. 257; 52 Am. St.
Rep. 582). 636
Capitol City Gaslight Co. v. Charter
Oak Ins. Co., 834
Capital, etc., Co. v. Gaines (20 Ky.
L. Rep. 1464; 49 S. W. Rep. 402,
462), 605, 618, 625
Capital City, etc., Co. v. Tallahassee
(42 Fla. 462; 28 So. Rep. 810),
488
Capital Gas Co. v. Young (109 Cal.
140; 41 Pac. Rep. 869; 29 L. R.
A. 463), 475
Capital City Gaslight Co. v. Des
Moines (72 Fed. Rep. 829), 421,
422, 426, 427, 428, 431, 432
Capital City Gaslight Co. v. Des
Moines (93 la. 547; 61 N. W.
Rep. 1066; 48 Am. and Eng. Corp.
Cas. 138), 462
Capital City Water Co. v. State
(105 Ala. 406; 18 So. Rep. 62;
29 L. R. A. 743). 523, 539, 540
Capner v. Mining Co. (2 Green (N.
J.) Ch. 467). 370
Capron v. Strout (11 Nev. 304),
357
Carey v. Bight (58 Pa. St. 70),
641
Carhart v. Auburn Gaslight Co. ( 22
Barb. 297), 6.54, 661, 663, 673
Carleton v. Lombard, etc., Co. (14!)
N. Y. 137; 43 N. E. Rep. 422; 149
N. Y. 35; 44 N. E. Rep. 183),
786, 787
Carley v^Lewis ( 24 Ind. 23 ) . 233
Carlin v. Western, etc., Co. (57 Md.
515; 40 Am. Rep. 440), 796, 799,
800, 821
xl
TABLE OF CASES.
(References arc to jiages.)
Carlisle Gas & Water Co. v. Carlisle
Water Co. (182 Pa. St. 17; 37
Atl. Rep. 821), 483, 514, 515
Carlon v. Sultman (28 Neb. 672; 44
N. W. Rep. 873), 390
Carlyle v. Carlyle, etc., Co. (52 111.
App. 577), 437
Carmichael v. Texarkana (94 Fed.
Rep. 561), 664
Carmody v. Boston Gaslight Co.
(162 Mass. 539; 39 N. E. Rep.
184), 702, 768
Carne v. Mitchell (15 L. J. (N. S.)
Ch. 287), 318
Carnegie Natural Gas Co. v. Phila-
delphia Co. (158 Pa. St. 317; 27
Atl. Rep. 951), 132, 192
Garner v. Peters (9 Pa. Super. Ct.
Rep. 29; 43 W. N. C. 261), 320
Carother's Appeal (118 Pa. St.
468; 12 Atl. Rep. 314; 11 Cent.
Rep. 48), 491, 501, 530
Carother v. Philadelphia Co. (118
Pa. St. 468; 12 Atl. Rep. 314),
383, 388
Carr v. Benson (L. R. 3 Ch. App.
524; 78 L. T. 696; 16 W. R. 744),
79
Carrhart v. Montana, etc., Co. ( 1
Mont. 245), 78
Carrigan \. Lycoming Fire Ins. Co.
(53 Vt. 418; 38 Am. Rep. 687),
825
Carroll v. Provincial, etc., Co. (26
Can. S. C. 591), 83
Carter v. Coumty Court (45 W. Va.
806; 32 S. E. Rep. 216; 43 L. R.
A. 725), 840, 841
, Carter v. Hammett (18 Barb. 608).
238
Carter v. Producers', etc., Oil Co.
(164 Pa. St. 463; 30 Atl. Rep.
391), 352
Carter v. Tyler County Court (45
W. Va. 806; 32 S. E. Rep. 216;
43 L. R. A. 725), 52
Carterville Improvement, etc., Co.
V. Carterville (89 Ga. 683; 16 S.
E. Rep. 25), 468
Cary Hardware Co. v. McCarty (10
Colo. App. 200; 50 Pae. Rep.
744), 62
Case V. Haight (3 Wend. 632), 328
Cassell V. Crothers (193 Pa. St.
359; 44 Atl. Rep. 446), 152, 153,
221
Catlin Coal Co. v. Lloyd (176 111.
275; 52 N. E. Rep. 144; 180 HI.
398; 54 N. E. Rep. 214), 321, 326
Central Land Co. v. Laidley (32 W.
Va. 134; 9 S. E. Rep. 61), 281
Central Transportation Co. v. Pull-
man Palace Car Co. (139 U. S.
24; 11 Sup. Ct. Rep. 478), 528
Central Trust Co. v. Berwind White
Coal Co. (95 Fed. Rep. 391), 278,
368
Central Trust, etc., Co. v. Cincin-
nati, etc., Co. (26 Wkly. Law
Bull. 149; 11 Ohio Dee. Rep.
348), 633, 635
Central Trust Co. v. Sheffield, etc.,
Co. (42 Fed. Rep. 106), 355
Centre Hall Water Co. v. Centre
Hall (186 Pa. St. 74; 40 Atl.
Rep. 153), 464, 480, 483
Cerf V. Home Ins. Co. (44 Cal. 320;
13 Am. Rep. 165), 811, 816
Chadwick v. Corporation of Wigan
(28 Gas J. 562), 718, 722, 762
Chamberlain v. Dow (16 W. N. C.
(Pa.) 5.32), 63, 72, 238, 279
Chamberlain v. Parker (40 N. Y.
569; 45 N. Y. 569), 115, 122,
264
Chamberlain v. Summit Gas Co. (13
Penny. (Pa.) 261), 615
Chambers v. Smith (183 Pa. St.
122; 38 Atl. Rep. 522), 107, 142,
268
Chandler v. Pittsburgh, etc., Co. (20
Ind. App. 165; 50 N. E. Rep.
400), 229
TABLE OF CASES.
xli
(References are to pages.)
Chapman v. Grays' Gas Co. (13
Gas J. 448), 537
Chapman v. South, etc., Co (61 Gas
J. 359, 415, 460), 651
Charity Hospital v. New Orleans
Gaslight Co. (40 La. Ann. 382; 4
So. Rep. 433), 468
Charles v. Eshleman (5 Colo. 107),
340, 342, 344, 348, 349
Charles v. Froebel (47 Mo. App.
45), 171, 245
Charlotte v. Shepard (120 N. C.
411; 27 S. E. Rep. 109), 563
Charters of Gas Companies (5 Pa.
Dist. Rep. 39* 18 Pa. Co. Ct. Rep.
136), 482
Charters of Gas Companies, In re
(18 Pa. Co. Ct. Rep. 136; 5 Pa.
Dist. Rep. 396), 530
Chartiers Block Coal Co. v. Mellon
(152 Pa. St. 286; 25 Atl. Rep.
597; 18 L. R. A. 702), 94, 397
Chartiers Valley Gas Co. v. Lynch
(118 Pa. St. 362; 12 Atl. Rep.
435), 754
Chartiers Valley Gas Co. v. Waters
(123 Pa. St. 220; 16 Atl. Rep.
423; 25 Am. and Eng. Corp. Cas.
400), 754
Chasemore v. Richards ( 7 H. L. Cas.
349; 2 H. & N. 168; 29 L. J.
Exch. 81; 5 Jur. (N. S.) 873; 7
W. R. 685 ) , 48
Cheesman v. Shreve (40 Fed. Rep.
787), 49
Cheney v. Cook (7 Wis. 357), 95
Cherokee, etc., Co. v. Wilson (47
Kan. 460; 28 Pac. Rep. 178), 53,
698
Chevington & Burn Co. v. Lewis ( 10
W. N. C. (Pa.) 196), 839
Chicago V. Rumpf? (45 111. 90; 92
Am. Dec. 196), 488
Chicago Economic Fuel Co. v. Myers
(168 111. 139; 48 N. E. Rep. 66,
affirming 64 111. App. 270; 1 Chic.
L. J. Wkly. 276), 693
Chicago Gaslight & Coke Co. v. Peo-
ple's, etc., Co. (121 111. 530; 13
N. E. Rep. 169; 2 Am. St. Rep.
124, reversing 20 111. App. 473),
460, 503, 527, 536
Chicago, etc., Co. v. Lake (130 111.
42; 22 X. E. Rep. 616, affirming
27 111. App. 346), 432, 513, 514,
515, 520, 524, 538
Chicago, ete.^ Co. v. United States
Co. (57 Pa. St. 83), 72, 81
Chicago, etc., Ry. v. Minnesota (134
U. S. 418), 430, 431
Chicago, etc., Ry. v. Wellman (143
U. S. 339), 431
Chicago R. R. Co. v. People (73 III.
541), 520
Chicago Smokeless Fuel Gas Co. v.
Lyman (62 111. App. 538), 361
Child V. Starr (4 Hill 369), 93
Childers v. Neeley (47 W. Va. 70;
34 S. E. Rep. 828; 49 L. R. A.
468), 289, 293, 336, 342, 346, 347,
349, 350
Childs V. Clark (3 Barb. Ch. 52; 49
Am. Dec. 164), 233, 365
Childs V. Gillespie (147 Pa. St. 173;
23 S. E. Rep. 312), 86
Childs v.Hurd (32 W. Va. 66; 9 S.
E. Rep. 362), 366, 370, 638, 639
Childs V. Kansas City, etc., Co. (117
Mo. 414; 23 S. W. Rep. 373), 296,
297
Chisholm v. Atlanta Gaslight Co.
(57 Ga. 28), 682, 687, 710, 762
Chisholm v. Halifax (29 Nov. Sco.
402), 532, 789
Chister Emery Co. v. Lucas (112
Mass. 424), 76, 77
Chetham v. Williamson (4 East.
469), 105
Chouteau v. St. Louis Gaslight Co.
(47 Mo. App. 326). 624
Christy's Appeal (110 Pa. St. 538;
5 Atl.^ep. 205; 9 Morr. Min.
Rep. 42), 300
Chung Kee v. Davidson (102 Cal.
188; 36 Pac. Rep. 519), 342, 345
xlii
TABLE OF CASES.
(References are to pages.)
Churchill v. Lammers (60 Mo. zipp.
244), 308
Chynowitch v. Granby, etc., Co. (74
Mo. 173), 83
Cincinnati v. Cincinnati Gaslight &
Coke Co. (53 Ohio St. 278; 41 N.
E. Rep. 239), 598
Cincinnati, etc., Co. v. Bowling
Green (57 Ohio St. 336; 49 N. E.
Rep. 121), 428, 434, 577, 578,
579, 588, 597
Cincinnati Gaslight, etc., Co. v.
Avondale (43 Ohio St. 257; 1 N.
E. Rep. 527, reversing 8 Ohio N.
P. 88; 11 Wkly. L. Bull. 216; 13
Wkly. L. Bull. 467 ; 14 Wkly. L.
Bull. 15), 425, 434, 443, 444, 463,
499
Cincinnati, etc.. Co. v. State (18
Ohio St. 237), 444, 622, 836
Citizens' Gas, etc., Co. v. Elwood
(114 Ind. 332; 16 S. E. Rep. 624;
20 Am. and Eng. Corp. Cas. 263),
488
Citizens' Gaslight & Heating Co. v.
O'Brien (15 111. App. 400, af-
firmed 118 111. 174), 736, 760
Citizens' Gaslight & Heating Co. v.
O'Brien (118 111. 174; 8 N. E.
Rep. 310, affirming 115 111. App.
400), 736, 750, 751, 761, 792
Citizens' Gaslight & Heating Co. v.
O'Brien (19 111. App. 231), 736
Citizens' Gaslight Co. v. Wakefield
(161 Mass. 432; 37 N. E. Rep.
444), 566, 558
Citizens' Ins. Co. v. McLaughlin (53
Pa. St. 485), 809, 818
Citizens' Natural Gas Co. v. Shenan-
go, etc., Co. (138 Pa. St. 22; 20
Atl. Rep. 947), 120
Citizens' Water Co. v. Bridgeport,
etc., Co. (55 Conn. 1; 10 Atl. Rep.
170), 480
Citizens' Water Co.'s Charter (6
Pa. Dist. Rep. 80), 483
City of Erie, Appeal of (91 Pa. St.
398), 450
City of New York v. Hamilton Fire
Ins. Co. (10 Bosw. 537), 813
City of New York v. Brooklyn Fire
Ins. Co. (41 Barb. 231), 823
City of Philadelphia v. Collector (5
Wall. 720), 837
City of Scranton v. Gilbert (16 W.
N. C. (Pa.) 28), 839
City Fire Ins. Co. v. Corlies (21
Wend. 367), 803
City Water Co. v. State (88 Tex.
600; 32 S. W. Rep. 1033; 33 S. VV.
Rep. 259), 541
City Water Co. v. State (33 S. W.
Rep. (Tex.) 259), 527
City Water Supply Co. v. Ottumwa
(120 Fed. Rep. 309), 450
Clark V. Brown (83 Cal. 181; 23
Pac. Rep. 289), 346
Clark V. Jones (1 Denio 516), 199
Clark V. Midland, etc., Co. (21 Mo.
App. 58), 162
Clark V. Ritter (59 Cal. 669), 342,
347
Clark V. Rumsey (59 N. Y. App.
Div. 435; 69 N. Y. Supp. 102; 52
N. Y. Supp. 417), 349
Clarke v. Curtis (1 Gratt. 289),
366
Clarksburg Electric Light Co. v.
Clarksburg (47 W. Va. 739; 35 S.
E. Rep. 994; 50 L. R. A. 142),
522, 534
Clason V. Corley (5 Sandf. 447),
367
Clavering v. Clavering (2 P. W.
(N. S.) 388), 289
Clavering v. Westley (3 P. W. (N.
S.) 402). 277
Clegg V. Earby Gas Co. ([1896] 1
Q. B. 592; 65 L. J. Q. B. 339),
587
Clement v. Youngman (210 Pa. St.
341), 63. 80
Clements v. Philadelphia Co. (184
Pa. St. 28; 38 Atl. Rep. 1090; 28
Pittsb. L. J. (N. S.) 344; 41 W.
N. C. 321; 39 L. R. A. 532), 649
TABLE OF CASES.
xliii
(References are to pages.)
Clements v. Philadelphia Co. (3
Super. Ct. 14; 39 \V. N. C. 299,
reversed 184 Pa. St. 28; 41 W. N.
C. 321; 28 Pittsb. L. J. (X. S.)
344 ; 39 L. R. A. 532 ; 38 Atl. Rep.
1090), 392, 394, 408
Cleminger v. Baden Gas Co. (159
Pa. St. 16; 33 W. N. C. 480; 28
Atl. Rep. 293), 68, 150, 167, 192,
193, 210, 214
Cleveland, etc., R. R. Co. v. Closser
(126 Ind. 348; 26 N. E. Rep.
159; 9 L. R. A. 754; 22 Am. St.
Rep. 593), 626
Cleveland, etc., Co. v. Backus (133
Ind. 513; 33 N. E. Rep. 421; 18
L. R. A. 729, affirmed 154 U. S.
439; 14 Sup. Ct. Rep. 1122), 837
Cleveland, etc., Ry. Co. v. Conners-
ville (147 Ind. 277; 46 X. E. Rep.
579), 588
Cleveland, etc., Ry. Co. v. Ballen-
tine (84 Fed. Rep. 935; 56 U. S.
App. 266; 28 C. C. A. 572), 405,
408
Cleveland v. Citizens' Gaslight Co.
(20 N. J. Eq. 201), 664, 667, 672,
674, 679
Cleveland Gaslight & Coke Co. v.
Cleveland (71 Fed. Rep. 610; 35
Ohio L. Bull. 155), 421, 422. 428,
442
Cleveling v. West End Iron Co. (51
N. J. L. 34; 16 Atl. Rep. 184),
224, 245
Clift V. Clift (3 Pickle (Tenn.) 17;
9 S. W. Rep. 360). 288
Clippens Oil Co. v. Edinburgh, etc.
(25 Rettie 370), 553
Cline V. Kirkbinder (12 Ohio C. C.
Dec. 517; 22 Ohio Cir. Rep. 527),
668
Clowes V. Staffordshire \Y. W. Co.
(L. R. 8 CK. 125; 42 L. J. Ch.
. 107; 27 L. T. 521; 2 W. R. 32),
674
Clowser v. Joplin Mining Co. (4
Dill 469), 296
Coal Co. V. Pearce (153 Pa. St. 74;
25 Atl. Rep. 1026), 109
Coaldale, etc., Co. v. Qark (43 W.
Va. 84; 27 S. E. Rep. 294), 272
Coates v. Cheever (1 Cow. 460),
287, 289, 294
Coates V. Mayor ( 7 Cow. 585 ) , 420,
675
Coatsville Gas Co. v. County of
Chester (97 Pa. St. 476), 832,
838
Cochran v. Pew (159 Pa. St. 184;
28 Atl. Rep. 219), 131, 183, 184,
187, 266
Cochran v. Philadelphia, etc., Co.
(184 Pa. St. 565; 39 Atl. Rep.
296), 704
Cochran v. Shenango, etc., Co. (23
Pittsb. Leg. J. (X. S.) 82), 169
Cochrane v. Justice Mining Co.
(26 Pac. Rep. (Colo.) 780), 314,
317
Coe V. Hobby (72 X^ Y. 141), 172
Coffin V. Davenport (26 la. 515),
468
Coffeyville, etc., Co. v. Citizens',
etc., Co. (55 Kan. 173; 40 Pac.
Rep. 326), 513, 534
Coffinbery v. Sun Oil Co. (67 X. E.
Rep. (Ohio) 1069), 146, 147,166,
176, 191, 198, 203, 207, 218
Colby V. Gadsden (34 Beav. 416; 11
Jur. (X. S.) 760; 12 L. T. 197),
319
Cole V. Pennoyer (14 111. 158), 280
Cole V. Taylor (8 Pa. Super. Ct.
Rep. 19), 161, 167. 228
Coleman's Appeal (1 Pearson 470),
296
Coleman's Appeal (62 Pa. St. 252),
301, 303
Coleman v. Blewett (43 Pa. St.
176), %EI0
Colgan V. Forest Oil Co. (30
Pittsb. L. J. (X. S.) 68), 107,
203
xliv
TABLE OF CASES.
Colgan V. Forest Oil Co. (194 Pa.
St. 234; 45 Atl. Rep. 119; 30
Pittsb. L. J. (N. S.) 68; 75 Am.
St. Rep. 695, rev. 30 Pittsb. Leg.
(N. S.) 213), 107, 115, 128, 129,
274
Collier v. Cunningham (2 Ind. App.
254; 28 N. E. Rep. 341), 247
Collins V. Cincinnati, etc., Co. (13
Ky. Rep. 670; 18 S. W. Rep.
11), 791
Collins V. Hasbroiick (56 N. Y.
157; 15 Am. Rep. 407), 246
Collins V. Mechling ( 1 Pa. Super.
Ct. Rep. 594; 38 W. N. C. 235;
26 Pittsb. L. J. (N. S.) 459),
153, 155
Colorado, etc., Co. v. Turck (70 Fed.
Rep. 294), 49, 197
Colson V. Poi'tland (Fed. Cas.
3275), 451
Columbia, etc., Co. v. American Fire
Ins. Co. (59 Mo. App. 204), 812,
821
Columbia Conduit Co. v. Common-
wealth (90 Pa. St. 307), 53, 548,
553
Columbian Oil Co. v. Blake (13
Ind. App. 680; 42 N. E. Rep.
234), 32, 132, 267, 269, 282
Columbus, etc., Co. v. Columbus (50
Ohio St. 65; 33 N. E. Rep. 292;
19 L. R. A. 510), 542
Columbus Water Co. v. Columbus
(48 Kan. 99; 28 Pac. Rep. 1097),
452
Columbus Water Co. v. Columbus
(48 Kan. 378; 2J Pac. Rep. 762;
15 L. R. A. 354), 502
Columbus Gaslight Co. v. Freeland
(12 Ohio St. 392), 651, 653,667
Columbus, etc., Co. v. Tucker (48
Ohio St. 41; 26 N. E. Rep. 630),
654
Colvin V. Weimer (64 Minn. 37;
65 N. W. Rep. 1079), 3.59. 360
Comc.gj's V. Russell (175 Pa. St.
166; 34 Atl. Rep. 657), 232, 236
(References are to pages.)
Commercial Bank v. London Gas
Co. (20 Up. Can. Q. B. 233), 576,
585
Commercial, etc., Co.. v. Taeoma (17
Wash. 661; 50 Pac. Rep. 592),
522, 527, 541
Commercial Gas Co. v. Scott (L. R.
10 Q. B. 400; 25 Gas J. 889), 577,
587
Commercial Ins. Co. v. Mehlman
(48 111. 313), 801
Commercial Ins. Co. v. Robinson
(64 111. 265), 803
Commercial Union Fire Ins. Co. v.
Lister (23 Gas J. 364), 826
Commonwealth v. Lowell Gaslight
Co. (12 Allen 77), "390, 575, 618,
632
Commonwealth v. McKibbon (90
Ky. 384; 14 S. W. Rep. 372), 835
Commonwealth v. Nashua, etc., R.
R. Co. (2 Gray 54), 514
Commonwealth v. Old Colony, etc.,
R. R. Co. (14 Gray 93), 514
Commonwealth v. Philadelphia (132
Pa. St. 288; 19 Atl. Rep. 136),
607, 608
Commonwealth v. Russell (172 Pa.
St. 506), 658
Commonwealth v. Sauter (6 Kulp.
407), 397
Commonwealth v. Shaw (4 Allen
308; 81 Am. Dec. 706; Beale's
Cas. 506), 843
Commonwealth v. Steierling (156
Pa. St. 400; 27 Atl. Rep. 297), 42
Commonwealth v. Towanda Water
Works (15 Atl. Rep. (Pa.) 440),
539. 540
Commonwealth v. Wentworth (118
Mass. 441), 419
Commonwealth v. Wilkes-Barre Gas
Co. (2 Kulp. (Pa.) 499), 576,
581
Conant v. Smith ( 1 Aiken 67 ) , 298
Conemaugh Gas Co. v. Jackson
Farm Gas Co. (186 Pa. St. 443;
40 Atl. Rep. 1000), 614
TABLE OF CASES.
xlv
(References are to pages.)
Confers v. New York, etc., R. R.
Co. (146 Pa. St. 31; 23 Atl. Rep.
202), 770
Conger v. National, etc., Co. ( 16.5
Pa. St. 561; 31 Atl. Rep. 1038),
184
Conner v. New Albany ( 1 Blackf .
43), 513
Conrad v. Morehead (89 X. C. 31),
70, 190
Conroy v. Chicago, etc., Co. (96
Wis. 243; 70 N. W. Rep. 486; 38
L. R. A. 419), 406
Conshohocken Gaslight Co., In re
(5 Pa. Co. Ct. Rep. 585), 525
Consolidated Coal Co. v. Baker
(135 111. 545; 26 X. E. Rep. 651),
841
Consolidated Gas Co. v. Crocker (82
Md. 113; 34 Atl. Rep. 423; 31 L.
R. A. 785), 685, 697, 706, 707,
710. 712, 723, 746, 748
Consolidated Gas Co. v. Mitchell '( 1
Daiiph. Co. Rep. 71), 482
Consolidated Coal Co. v. Peers (59
111. App. 604), 257
Consolidated Coal Co. v. Peers (150
111. 344; 37 N. E. Rep. 937, af-
firming 39 111. App. 453), 75, 76,
79, 234, 245, 272
Consolidated Coal Co. v. Savitz (57
111. App. 659), 94
Consolidated Coal Co. v. Seninger
(79 111. App. 456, affirmed 179 111.
370; 53 X. E. Rep. 733), 693,
753
Consumers' Gas Co. v. Toronto (26
Ont. Rep. 722), 833
Consumers' Gas Oo. v. Toronto (27
Can. S. C. 453, affirmed 23 Ont.
App. Rep. 551 ) , 832
Consumers' Gas Trust Co. v. Cor-
baley (14 Ind. App. 549; 43 X. E.
Rep. 237), 707, 714, 723, 756
Consumers' Gfl.s Trust Co. v. Har-
less (131 Ind. 446; 29 X. E. Rep.
1062), 388, 389, 390
Consumers', etc., Co. v. Huntsinger
(14 Ind. App. 156; 42 X. E. Rep.
640), 389, 391, 513, 517, 549, 551,
552, 553, 554
Consumers' Gas Trust Co. v. Perre-
go (144 Ind. 350; 43 X. E. Rep.
306; 32 L. R. A. 146), 714. 715,
721, 723, 725, 742, 761
Consumers' Oil Co. v. Xunnemaker
{ 142 Ind. 560 ; 41 X. E. Rep. 1048 ;
51 Am. St. Rep. 193), 503
Conyers v. Kirk (78 Ga. 480; 3 S.
E. Rep. 442), 446, 456, 462
Cook V. Anderson ( 85 Ala. 99 ; 4 So.
Rep. 713), 778
Cook V. Andrews (36 Ohio St. 174),
130. 162
Cook V. Harris ( 1 Led. Raym. 367 ) ,
238
Cooke V. Forbes (L. R. 5 Eq. 166;
37 L. J. Ch. 178; 17 L. T. (X. S.)
371), 663, 674
Cooney v. Hayes (40 Vt. 478), 247
Copp V. German- American Ins. Co.
(51 Wis. 637; 8 X. W. Rep. 127,
616), 800
Corbet v. Oil City Fuel Supply Co.
(5 Pa. Super. Ct. 19; 40 W. N.
C. 480), 612
Corbin v. Philadelphia (195 Pa. St.
461; 45 Atl. Rep. 1070; 49 L. R.
A. 715). 780
Corcoran v. Milwaukee, etc., Co. (81
Wis. 191; 51 X. W. Rep. 328).
793
Core V. X. Y., etc., Co. (43 S. E.
Rep. (W. Va.) 128), 107, 108,
114. 123, 190, 217
Cornell v. Lamb (2 Cow, 652). 251
Cornish v. Farm, etc., Ins. Oa. (74
X. Y. 295 ) , 809
Cosgrove v. Troescher (62 App. Div.
(X. Y.) 123; 70 X. Y. Supp.
764), 6a4. 636
Cosmos, etc., Co. v. Gray Eagle Oil
Co. (104 Fed. Rep. 20). 335
Costigan v. Hastier (2 Sch. & Lef.
160), 367
xlvi
TABLE OF CASES.
(References arc to pages.)
Cosulich V. Standard Oil Co. (122
N. Y. 118; 25 N. E. Rep. 259,
revising 55 N. Y. Super. Ct. Rep.
384), 701, 702, 779
Cotling V. Kansas City, etc., Co.
(183 U. S. 85; 22 Sup. Ct. Rep.
30). 618
Couch V. Rochester, etc., Ins. Co.
(25 Hun 469), 801, 822
Couch V. Steel (3 E. & B. 402), 587
Cougle V. National, etc., Co. ( 165
Pa. St. 561; 30 Atl. Rep. 1038),
265
Coulter V. Conemaugh Co. (30
Pittsb. L. J. (N. S.) 281), 187,
269
Covington v. Commonwealth ( 19
Ky. L. Rep. 105; 39 S. W. Rep.
836; 173 U. S. 231), 835
Covington, etc., Co. v. Sandford ( 164
U. S. 578), 430
Covington Gaslight Co. v. City of
Covington (84 Ky. 94), 832
Cowan V. Radford Iron Co. (83 Va.
547; 3 S. E. Rep. 120), 71, 165,
217
Cowell V. Colorado Springs (100 U.
S. 55), 390
Cox V. Bishop (8 DeG. M. & G. 815;
26 L. J. Ch. 389; 3 Jur. (N. S.)
499; 29 L. T. 44; 5 W. R. 437),
227
Coy V. City Council (17 la. 1), 468
Coy V. Indianapolis Gas Co. ( 146
Ind. 655; 46 N. E. Rep. 17; 36
L. R. A. 535; 8 Am. and Eng.
Corp. Cas. (N. S.) 771), 577,
578, 581, 589, 590
Craig V. Wells (11 N. Y. 315), 328
Crane v. Columbus Construction
Co. (73 Fed. Rep. 984; 46 U. S.
App. 52; 20 C C. A. 233), 713,
717, 719
Craw V. Wilson (22 Nev. 385; 40
Pac. Rep. 1076), 310
Crawford v. Bellvere, etc., Gas Co.
183 Pa. St. 227; 38 Atl. Rep.
595), 94, 261, 274
Crawford v. Oman, etc., Co. (12 S.
E. Rep. (S. C.) 929), 259
Crawford v. Ritchey (43 W. Va.
252; 27 S. E. Rep. 220), 68, 148,
167, 217
Crawford v. Witherbee (77 Wis.
419; 46 N. W. Rep. 545), 109
Crawfordsville v. Braden ( 130 Ind.
149; 28 N. E. Rep. 849; 14 L. R.
A. 268; 30 Am. St. Rep. 214),
558, 560
Crawshay v. Maule ( 1 Swanst. 521 ;
1 Wile. 181), 338
Creel v. Charleston, etc., Gas Co.
(51 W. Va. 129; 41 S. E. Rep.
174), 740, 752
Crescent Steel Co. v. Equitable Gas
Co. (23 Pittsb. Leg. J. (N. S.)
316), 577, 579, 591, 592, 597
Creveling v. De Hart (54 N. J. L.
338; 23 Atl. Rep. 611), 170, 241,
245
Crescent City Gaslight Co. v. New
Orleans Gaslight Co. (27 La. Ann.
138), 480, 493, 502
Creston W. W. Co. v. Creston (101
la. 687; 70 N. W. Rep. 739), 432,
450, 470, 474
Croft, etc.. Gas Co. v. Pryor (31
Gas. J. 386), 788
Crooke v. Flatbush W. W. Co. (29
Hun 245), 548
Cromwell v. Stephens (2 Daly 15),
612
Crosby v. Montgomery (108 Ala.
498; 18 So. Rep. 723), 588, 603
Crossley v. Lightowler (L. R. 2 Ch.
478; 36 L. J. Ch. 584; 16 L. T.
(N. S.) 638; 15 W. R. 801). 674
Crouch V. Puryear ( 1 Rand. 258 ) ,
288
Crouse v. Holdman (19 Ind. 30),
280
Crowder v. Sullivan (128 Ind. 486;
28 N. E. Rep. 94; 13 L. R. A.
647), 446, 450, 454, 488, 505
TABLE OF CASES.
xlvii
(References are to pages.)
Crumley v. Watauga Water Co. (99
Tenn. 420; 41 S. W. Rep. 1058),
577, 585
Cryan v. Ridelsperger (7 Pa. Co.
Ct. Rep. 473), 167, 202, 207
Crystal Palace Gas Co. v. Idris (82
L. T. 200; 64 J. P. 452), 473
Culbertson v. Fulton (127 111. 30;
18 N. E. Rep. 781), 450, 451
Cullins V. Flagstaflf, etc., Co. (2
Utah 219), 358
Cumniing v. Prescott (2 Y. & C.
Exch. 488), 352
Cunningham v. Knight ( 1 Barb.
399), 329
Current v. Fulton (10 Ind. App.
617; 38 N. E. Rep. 419), 615
D
Daglish, Ex parte, In re Wilde (L.
R. 8 Ch. App. 1072), 647
Dalzell V. Findlay (5 Ohio Cir. Ct.
435; 3 Ohio Cir. Dec. 214, af-
firmed 27 Wkly. L. Bull. 128),
597
Damainville v. Mann (32 N. Y.
197), 238
Daniels v. Detwiler (14 Mont. Co.
L. Rep. 58; 15 Lane. L. Rev.
165), 634, 635
Danville v. Danville Water Co. (178
111. 299; 53 N. E. Rep. 118; 180
111. 235; 54 N. E. Rep. 224; 186
III. 326; 57 N. E. Rep. 1129),
438
Danville Water Co. v. Danville (180
U. S. 619; 21 St. Ct. 505, affirm-
ing 186 111. 326; 57 N. E. Rep.
1129). 439
Dark v. Johnston (55 Pa. St. 164),
79, 81, 82
Darling v. Crowell (6 N. H. 421),
328
Darlington v. Allegheny (28 Pittsb.
L. J. (N. S.) 381), 393
Dartmouth College v. Clough (8 N.
H. 22). 246
Davenport Gaslight & Coke Co. v.
Davenport (13 la. 229; 15 la. 6),
446, 458, 472, 473
Davenport, etc., Ry. Co. v. Daven-
port Gaslight Co. (43 la. 301),
546
Davenport v. Kelly (7 la. 102),
488
Davenport v. Kleinschmidt (6
Mont. 502; 13 Pac. Rep. 249),
498, 508
Davenport v. Richmond (81 Va. 636
(gunpowder).), 418
Davens v. Merchants', etc., Ins. Co.
(7 La. Ann. 344), 811, 816
Davidson v. Jennings (27 Colo. 187;
60 Pac. Rep. 354; 48 L. R. A.
340), 353
Davis V. Clark (2 Mont. 310), 323
Davis V. Jefferson Gas Co. (147 Pa.
St. 130; 23 Atl. Rep. 218), 396
Davis V. Mayor (14 N. Y. 506; 67
Am. Dec. 186), 488
Davis V. Moss (38 Pa. 346), 180,
194, 198, 641
Davis V. Shephard (L. R. 1 Ch.
App. 410; 35 L. J. Ch. 581; 15
L. T. 122), 318
Davis V. Smith (130 Mass. 113),
512
Dawson v. Kirby (6 Pa. Dist. Rep.
13; 27 Pittsb. L. J. (N. S.) 234),
633
Dawson v. McFaddin (22 Neb. 131;
34 N. W. Rep. 338), 315
Dawson v. Water Works Co. ( 106
Ga. 696; 32 S. E. Rep. 907), 451
Dayton v. Quigley (37 N. J. Eq.
77), 605, 607
Decatur Gaslight & Coke Co. v.
Howell (92 111. 19), 675
Decatur Gaslight & Coke Co. v. De-
catur (120 111. 67; 11 N. E. Rep.
406, afflfeiing 24 111. App. 544),
598
Dechert v. Municipal, etc., Co. (57
N. Y. Supp. 225), 756
slviii
TABLE OF CASES.
(References are to pages.)
Decker v. Howell (42 Cal. 636),
339, 348
Deckert v. Municipal, etc., Co. (9
N. Y. App. Div. 573; 41 N. Y.
Supp. 692), 681
Deere v. Guest (1 My. & C. 516; 6
L. J. Ch. 69), 537
Deering, In re (93 N. Y. 361), 542
Defiance Water Co. v. Olinger (54
Ohio St. 532; 44 N. E. Rep. 238;
32 L. R. A. 736; 35 Ohio L. J.
323, 350), 685, 731, 736
Delaware, etc., Co. v. Sanderson
109 Pa. St. 583), 62, 76, 272, 839
Delaware, etc., Co. v. Von Storch
(196 Pa. St. 102; 46 Atl. Rep.
375), 840
DeMattos v. Gibson (4 DeG. & J.
276), 620
Den V. Post (25 N. J. L. 285), 199
Denning v. Terminal Ry. (49 N. Y.
App. Div. 493; 63 N. Y. Supp.
615), 754
Denniston v. Philadelphia Co. ( 1
Super. (Pa.) Ct. 599; 38 W. N.
C. 332; 27 Pittsb. L. J. (N. S.)
14), 393, 730
Denniston v. Philadelphia Co. (101
Pa. St. 41; 28 Atl. Rep. 1007),
393
Densmore Oil Co. v. Densmore (64
Pa. St. 43), 312
Denver v. Hubbard (68 Pac. Rep.
(Colo. Ap.) 993), 454
Denys v. Shuckburgh (4 Y. & C.
Exch. 42; 5 Jur. 21), 297, 301
Desloge v. Pearce (38 Mo. 588), 79,
82, 83, 640
Des Moines v. Hall (24 la. 234),
333
Des Moines \Yater Co., In re (48
la. 324), 833
Des Moines Gas Co. v. Des Moines
(44 la. 505), 480, 498, 500
Des Moines St. Ry. Co. v. Des
Moines (73 la. 513; 33 N. W.
Rep. 610; 35 N. W. Rep. 602),
480, 489, 490, 508
Des Moines v. Des Moines W. W.
Co. (95 la. 348; 64 N. W. Rep.
269), 433, 463, 464, 465, 612
Detlor V. Holland (57 Ohio St. 492;
49 N. E. Rep. 690; 40 L. R. A.
266), 76, 83, 103, 113, 161, 173,
332
Detroit v. Detroit, etc., Co. (184
U. S. 368; 22 Sup. Ct. Rep. 410),
420
Detroit v. Hosmer ( 79 Mich. 384 ; 44
N. W. Rep. 622), 455
Detroit Gas Co. v. Moreton, etc.,
Co. (Ill Mich. 401; 69 N. W.
Rep. 659), 591, 627
Detroit v. Mutual Gaslight Co. (43
Mich. 594; 5 N. W. Rep. 1039),
536
Detroit Pharmacal Co. v. Burt ( 124
Mich. 220; 82 N. W. Rep. 893),
171, 242, 245
Detroit Citizens' St. Ry. Co. v. De-
troit Ry. (171 U. S. 48; 18 Sup.
Ct. Rep. 732, affirming 110 Mich.
384; 68 N. W. Rep. 304), 489,
563, 564
Devine v. Taylor (12 Ohio Cir. Ct.
Rep. 723; 4 Ohio Cir. Ct. Dec.
248; 1 Ohio Dec. 153), 64, 355,
360, 361
Dewey, A. A., In re (9 Copp. L. D.
51), 55
Dewey v. Rogers (2 Law. Die. 707),
55
D'Eyncourt v. Gregory (L. R. 3 Eq.
382), 638
Diamond Plate Glass Co. v. Curless
(22 Ind. App. 346; 52 N. E. Rep.
782), 70, 264
Diamond Plate Glass Co. v. Echel-
barger (24 Ind. App. 124; 55 N.
E. Rep. 233), 70
Diamond Plate Glass Co. v. Tennell
(22 Ind. App. 132; 52 N. E. Rep.
168), 95, 126, 259. 276
Dicken v. Harmer ( 1 Drew & Sm.
284; 39 L. J. Ch. 778; 2 L. T.
276), 294
TABLE OF CASES.
xlix
(References are to pages.)
Dickenson v. Bolyer (55 Cal. 285),
355, 356
Dickinson v. Doodds (L. R. 2 Ch.
Div. 463; 45 L. J. Ch. 777; 34 L.
T. 607; 24 W. R. 594), 314
Dickinson v. Valpy ( 10 B. & C. 128;
5 M. & Ry. 126; 8 L. J. (0. S.)
K. B. 51), 345, 348
Diehl V. Adams County, etc., Ins.
Co. (58 Pa. St. 443), 801
Dietz V. Mission Transfer Co. (95
Cal. 92; 30 Pac. Rep. 380), 94,
332, 645
Dietz V. Mission Transfer Co. (25
Pac. Rep. (Cal.) 423), 325, 329,
332
Dillon V. Acme Oil Co. (49 Hun
565), 661, 662
Dillon V. Washington Gaslight Co.
(1 MacArthur (D. C.) 626), 789
Disher v. Disher (45 Neb. 100; 63
N. W. Rep. 368), 292
District of Columbia v. Washington
Gaslight Co. (20 D. C. 39), 481,
517, 427
District of Columbia v. Washington
Gaslight Co. (9 Mac-key 39; 161
U. S. 316), 755
Dittmer v. Germania Ins. Co. (23
La. Ann. 458; 8 Am. Rep. 600),
809
Dively v. Cedar Falls (27 la. 227),
450
Dixon V. Entriken (6 Pa. Dist. Rep.
447; 19 Pa. Co. Ct. Rep. 414),
470, 564, 565
Dobbins V. Los Angeles (72 Pac. Rep.
(Cal.) 970), 419
Dobschuetz v. Holliday (82 111.
371), 641
Doe d. Hanley v. Wood (2 Barn. &
Aid. 724), 105
Doe V. Jepson ( 3 B. & Ad. 402 ; 1 L.
J. K. B. 1.54), 199
Doe V. Martin (4 B. & Ad. 785),
318
Doe V. Masters (2 B. & C. 490), 199
Donahue v. Kelly (181 Pa. St. 93;
37 Atl. Rep. 186; 59 Am. St. Rep.
632), 779
Donahoe v. Rich (2 Ind. App. 540;
28 -N. E. Rep. 1001), 172, 242
Donahue v. Wabash, etc., Co. (83
Pa. St. 560), 780
Dooley v. Watson (1 Gray 414), 124
Dorr V. Danville Gaslight Co. (18
Hun 274), 664
Double V. Union Heat, etc., Co. (172
Pa. §t. 388; 37 W. N. C. 389; 33
Atl. Rep. 694), 154
Doubleday v. Muskett (4 Moo. & P.
750; 7 Bing. 110; 9 L. J. (0. S.)
C. P. 35), 345
Douglass V. Placerville (18 Cal.
644), 563
Dougherty v. Creary (30 Cal. 290;
89 Am. Dec. 116), 347
Douthett V. Gibson (11 Pa. Sup.
Ct. Rep. 540), 267
Dover Gaslight Co. v. Dover ( 7 DeG.
M. & G. 545; 4 Gas J. 129, 176;
1 Jur. (N. S.) 812), 391
Dover v. Main Water Co. (90 Me.
180; 38 Atl. Rep. 101), 832
Dow V. Winnipesaukee Gas, etc., Co.
(69 N. H. 312; 41 Atl. Rep. 288;
42 L. R. A. 569), 706, 712, 729
Dowe V. Faneuil Hall Ins. Co. (127
Mass. 346), 805
Dower v. Richards (151 U. S. 658;
14 Sup. Ct. Rep. 452), 335
Downing v. State (66 Ga. 160), 786
Drake v. Lacoe (157 Pa. St. 17; 27
Atl. Rep. 538), 217, 277
Dresser v. Transporting Co. (8 W.
Va. 553), 278
Driscoll v. Public Board of Works
(14 T. L. Rep. 99; 02 J. P. 40),
.545
DuBois V. DuBois, etc., Co. (176
Pa. St. 430; 35 Atl. Rep. 248; 38
W. N. 0^417; 34 L. R. A. 92),
447. 460
Dubuque v. Benson (23 la. 248),
334
TABLE OF CASES.
(References are to pages.)
Dudley v. Warde (Amb. 113), 642,
646
Duff's Appeal (21 W. N. C. 490),
251, 272, 370, 371
Duffield V. Hue (129 Pa. St. 94; 18
Atl. Rep. 566), 73, 95, 140, 192
Duffield V. Hue (136 Pa. St. 602;
20 Atl. Rep. 526; 129 Pa. St. 94;
18 Atl. Rep. 566), 106, 120, 126
Duffield V. Michaels (97 Fed. Rep.
825), 105
Duffield V. Michaels (102 Fed. Rep.
820; 42 C. C. A. 649; 97 Fed.
Rep. 825), 150, 192, 195, 196, 214
Duffield V. Russell ( 19 Ohio Cir. Ct.
Rep. 266; 10 Ohio C. D. 472), 113,
151
Duffield V. Rosenzweig ( 144 Pa. St.
520; 23 Atl. Rep. 4; 150 Pa. St.
543; 24 Atl. Rep. 705), 106, 120,
124, 125
Duffus V. Howard Furnace Co. (8
N. Y. App. Div. 567 ; 40 N. Y.
. Supp. 925), 631, 636
Duke V. Hague (107 Pa. St. 66), 72,
75, 81
Dunat's Est., hi re (29 Pittsb. L. J.
105), 76
Duncan v. Sun Fire Ins. Co. (6
Wend. 488), 801, 802
Dunlap Steamboat v. Reliance (2
Fed. Rep. 249), 703
Dunham v. Kirkpatrick (101 Pa.
St. 43), 31, 329, 331
Dunham v. Lovewek (158 Pa. St.
197; 27 Atl. Rep. 990), 342
Durant Mining Co. v. Percy, etc.,
Co. (93 Fed. Rep. 166), 49
Duryea v. Burt (28 Cal. 569), 350,
351
Dyke v. National Transit Co. (22
N. Y. App. Div. 360; 49 N. Y.
Supp. 180), 49, 125
E
Eads V. Retherford (114 Ind. 273;
16 N. E. Rep. 587), 308
Eads V. Williams (24 L. J. (N. S.)
Ch. 531; 4 DeG. M. & G. 674; 11
Jur. (N. S.) 193; 3 W. R. 98; 24
L. T. 162), 319
Eaman v. Bashfdrd (37 Pac. Rep.
(Ariz.) 24), 354
Earl of Mansfield v. Blackburne (3
Scott (N. S.) 820; 6 Bing. N. C.
427), 647
Early v. Friend (16 Gratt. 21; 78
Am. Dec. 649), 303
East Jersey Co. v. Wright ( 32 N. J.
Eq. 248), 63, 79, 82, 105, 106,
163
East River Gaslight Co. v. Donnelly
(25 Hun 614), 455
East St. Louis v. East St. Louis
Gas, etc., Co. (98 HI. 415; 38 Am.
Rep. 97), 427, 450, 464
East Sugar Loaf Coal Co. v. Wilbur
(5 Pa. Dist. Rep. 202), 639
Eaton V. Allegany Gas Co. (122 N.
Y. 416; 25 N. E. Rep. 981, revers-
ing 42 Hun 61), 68, 152, 161, 189,
190
Eaton V. Wilcox (42 Hun 61^, 99,
136, 142
Eaves v. Estes (10 Kan. 314), 631
Eclipse Oil Co. v. South Penn. Oil
Co. (47 W. Va. 84; 34 S. E. Rep.
923), 84, 85, 92
Economic Fuel Gas Co. v. Myers
(168 HI. 139; 49 N. E. Rep. 66,
affirming 64 111. App. 270; 1 Chic.
L. J. Wkly. 276), 754
Edgevvare Highway Board v. Har-
row District Gas Co. (L. R. 10
Q. B. 92; 44 L. J. Q. B. 1; 31 L.
T. (N. S.) 402; 23 W. R. 90),
543
Edison Electric, etc., Co. v. Jacobs
(8 Kulp. 120), 454
Edmonds v. Mounsey (15 Ind App.
399; 44 N. E. Rep. 196), 112, 224,
231, 238, 239, 259, 267, 270, 309
Edwards v. Allouez Mining Co. (38
Mich. 46), 654
TABLE OF CASES.
(References are to pages.)
Edwards v. lola Gas Co. (65 Kan.
— ; 69 Pac. Rep. 350), 114, 176,
210, 217, 218, 219
Edwards v. McClurg (39 Ohio St.
41), 77
Edwards v. Woodbury ( 1 McCray
429; 3 Feu. Rep. 14), 366
Edwards County v. Jennings (89
Tex. 618; 35 S. W. Rep. 1053, af-
firming 33 S. W. Rep. 585), 498
Effinger v. Hall (81 Va. 94), 292
Elder v. Lykens Valley Coal Co.
(157 Pa. St. 490; 27 Atl. Rep.
545), 654
Eldredge v. Bell (64 la. 125; 19 N.
W. Rep. 879), 247
Electric City, etc., Co. v. West
Bridge, etc., Co. (187 Pa. St. 500;
41 Atl. Rep. 458), 109
Eley's Appeal (103 Pa. St. 300),
287, 290
Elias V. Snowden Slate Co. (4 App.
Cas. 455 ; 48 L. J. Ch. 203 ; 26 W.
R. 869; 38 L. T. 871; 8 Ch. Div.
521; 46 L. J. Ch. 806; 48 L. J.),
287, 371, 372, 374, 376
Elk Fork Oil & Gas Co. v. Jennings
(84 Fed. Rep. 839), 68, 83, 113,
114. 120, 147, 150. 192, 201, 205
Elkins V. McKean (79 Pa. St. 493),
785, 786
Elliott V. Bishop (24 L. J. Exch. p.
39; 42 L. J. Exch. p. 229; 10
Exch. 496), 638
Ellis V. London Gaslight Co. (32
Gas J. 849), 620, 712, 762
Ellis V. Sheffield Gas, etc., Co. (2
El. & B. 757; 18 Jur. 146), 788
EUinwood v. Reedsburg (91 Wis.
131; 64 X. W. Rep. 885), 561
Elmhurst v. Spencer (2 Mac. N. &
G. 45), 674
Elmira Gaslight Co. v. Elmira (2
Alb. L. Jr. 392). 464. 498
Elms V. Randall (4 Dana 519), 246
Elyria Gas, etc., Co. v. Elyria (57
Ohio St. 374; 49 N. E. Rep. 335,
reversing 14 Ohio C. C. Rep. 219;
7 Ohio Dec. 527 ; 38 Wkly L. Bull.
200; 39 Wkly. L. Bull. 139), 566
Emerine v. Steel (8 Ohio C. Ct.
Rep. 381; 4 Ohio C. Dec. 92), 109
Emerson v. Babcock (66 la. 257;
55 Am. Rep. 273), 514
Emerson v. Commonwealth (108 Pa.
St. HI; 15 W. N. C. 425; 42 Leg.
Int. 8i), 52, 491, 501, 529
Emerson v. Lowell (3 Allen 410; 6
Allen 146; 83 Am. Dec. 621), 682,
715, 716, 743, 757, 758, 759
Emerson v. Lowell Gaslight Co. (6
Allen 146; 83 Am. Dec. 621; 3
Allen 410), 760, 761
Emery v. Ledeque (6 Tex. Civ. App.
719; 72 S. W. Rep. 602), 72
Empire Transportation Co. v. Wam-
setta, etc., Co. (63 Pa. St. 14),
404
Engel V. Fitch (L. R. 3 Q. B. 314;
9 B. J. S. 85 ; 37 L. J. Q. B. 145 ;
18 L. T. 318; 16 W. R. 785), 320
Engleberth v. Troxell (40 Xeb. 195;
58 N. W. Rep. 852), 280
Enterprise Oil & Gas Co. v. National
Transit Co. (172 Pa. St. 421; 26
Pittsb. L. J. (N. S.) 314; 37 W.
N. C. 473; 33 Atl. Rep. 687), 56,
297, 301, 304, 388
Epping V. Columbus (43 S. E. Rep.
(Ga.) 803), 451
Erie Mining & Natural Gas Co. v.
Gas Fuel Co. (15 W. N. C. 399),
491
Ernest v. New Orleans W. W. Co.
(39 La. Ann. 5.50). 619
Erving v. New York City (131 N. Y.
133; 29 N. E. Rep. 1101. affirming
16 N. Y. Supp. 612), 456
Erskine v. Forest Oil Co. (80 Fed.
Rep. 53^). 119, 120, 140. 326, 327
ErAdn V. ilasterman ( 16 Ohio Cir.
Ct. Rep. 62; 8 Ohio Dec. 516),
349, 350
Hi
TABLE OF CASES.
(References are to pages.)
Esberg-Trust Cigar Co. v. Poitland
(34 Ore. 282; 55 Pac. Rep. 961),
722
Etowah Mining Co. v. Wills Valley,
etc., Co. (121 Ala. 672; 25 So.
Rep. 720), 110
Eufaula Water Co. v. Addystone
Water Co. (89 Ala. 522; 8 So.
Rep. 25), 363
Eureka Light-Ice Co. v. Eureka (5
Kan. App. 669; 48 Pac. Rep. 935),
501
Evans v. Consumers' Gas Trust Co.
(29 N. E. Rep. (Ind.) 398; 31 L.
R. A. 673), 257, 259
Evans v. Grand Rapids, etc., Ry.
(68 Mich. 602; 36 N. W. Rep.
687), 284
Evans v. Haefner (29 Mo. 141),
333
Evans v. Hoggatt (9 Kan. App.
540; 59 Pac. Rep. 381), 777
Evans v. Keystone Gas Co. (148 N.
Y. 112; 42 N. E. Rep. 513; 30 L.
R. A. 651; 51 Am. St. Rep. 681,
affirming 72 Hun 503; 25 N. Y.
Supp. 191; 28 Chic. L. News 160),
729, 766, 761
Everett v. London Assurance Co.,
804
F
Footway, Mitcham Gas Co. v. Wim-
bledon Local Board (30 Gas J.
600), 391
Forbes v. Gracey (94 U. S. 762), 42,
840
Ford V. Brooklyn Gaslight Co. (3
Hun 621), 601, 602
Ford V. Buchanan (111 Pa. St. 31;
2 Atl. Rep. 339), 52
Ford V. Cobb (20 N. Y. 344), 631
Forney v. Ward (62 S. W. Rep.
(Te.x. Civ. App.) 108), 113, 208,
216
Forst V. Belmont (6 Allen 152), 563
Fort Orange Oil Co. v. Wichman
(17 Ohio Cir. Ct. Rep. 57; 9 Ohio
Cir. Dec. 650), 99, 253
Forty Fort v. Forty Fort Water Co.
(9 Kulp. (Pa.) 241), 467
Fosdick V. Schall (99 U. S. 235),
631
Foss V. Harbottle (2 Hare 489), 311
Foster v. Cape May (60 N. J. L.
78; 36 Atl. Rep. 1089). 476
Foster v. Elk Fork, etc., Co. (90
Fed. Rep. 178; 61 U. S. App. 576;
32 C. C. A. 560), 48, 68, 84, 124,
147
Foster v. Findlay (5 Ohio Cir. Ct.
455; 3 Ohio Cir. Dec. 224), 443,
570
Foster v. Philadelphia Gas Works
Trustees (12 Phila. 511), 620,
625
Foster v. Runk (109 Pa. St. 291),
329
Foster v. Weaver (118 Pa. St. 42;
12 Atl. Rep. 313), 292, 305
Fowler v. Brooklyn Gaslight Co.
(17 Gas J. 908), 602
Fowler v. F. C. Austin Mfg. Co.
(5 Ind. App. 489; 32 N. E. R3p.
596), 468
Fox V. Frith (10 M. & W. 131; Car.
& M. 502; 11 L. J. Exch. 336),
346
Fraim v. National Fire Ins. Co.
(170 Pa. St. 151; 37 W. N. C. 39;
32 Atl. Rep. 613), 810, 817
Fi'ancoeur v. Newhouse (43 Fed.
Rep. 236), 335
Frank v. Maguire (42 Pa. St. 82),
171, 240, 245
Franklin Coal Co. v. McMillan (49
Md. 549 ) , 49, 289
Franklin Co. v. Coal Co. (43 Kan.
518; 23 Pac. Rep. 630), 74
Franklin Land Co. v. Wea Gas &
Coal Co. (43 Kan. 518; 23 Pac.
Rep. 630), 284, 286
TABLE or CASES.
liii
(References are to pages.)
Frankfort v. Capitol City, etc., Co.
16 Ky. L. Rep. 780; 29 S. W,
Rep. 855), 571
Fratt V. Wliittier (58 Cal. 126; 41
Am. Rep. 251), 635
Freeport Borough v. Enterprise Nat-
ural Gas Co. (18 Pa. Super. Ct.
73), 460, 528, 578, 600
Freeport Water Co. v. Freeport ( 186
III. 179; 57 N. E. Rep. 862), 438
Freeport Water Co. v. Freeport City
(180 U. S. 587; 21 S. Ct. 493, af-
firming 186 111. 179; 57 N. E.
Rep. 862), 421, 439
Freeport W. W. Co. v. Pragen (3
Pa. Ct. Rep. 371), 481
Freeman v. Freeman (43 N. Y. 34;
3 Am. Rep. 657), 315
Freeman v. Memenway (75 Mo.
App. 611), 339
Freer v. Stotenbur ( 2 Keyes 467 ; 2
Abb. Dec. 189, reversing 36 Barb.
641), 285
French v. Burlington (42 la. 614),
4.50
French v. Macale (2 Dru. & W.
274). 124
Friburk v. Standard Oil Co. (66
Minn. 277; 68 N. W. Rep. 1090),
664, 065, 666
Friedlander v. Rider (30 Neb. 783;
47 N. W. Rep. 83 ) , 639
Friend v. Mallory (52 W. Va. — ;
43 S. E. Rep. 114), 192, 194, 195,
202. 277
Friend v. Porter (50 Mo. App. 89),
333
Frothingham v. Benson (20 Misc.
132; 44 N. Y. Supp. 879). 625
Frye v. Bath Gas, etc., Co. (94 Me.
17; 46 Atl. Rep. 804), 791
Fuchs V. St. Louis (133 Mo. 168; 31
S. W. Rep. 115; 34 S. W. Rep.
508; 34 L. R. A. 118), 698, 777
Fuher v. Buckeye Supply Co. (5
Ohio C. PI. 187; 7 Ohio N. P.
420), 380
Fulmer's Appeal (128 Pa. St. 24;
18 Atl. Rep. 493), 296, 301
Fulton V. Stuart (2 Ohio 215), 246
Funk V. Brigaldi (4 Daly 359), 633
Funk V. Haldenian (53 Pa. St.
229), 32, 33, 72, 80, 81, 82, 83,
97, 105, 106, 330
Fisher v. Baden Gas Co. (138 Pa.
St. 301; 22 Atl. Rep. 29), 392
Fisher v. Dixon (12 CI. & F. 312),
642, 646
Fisher v. Dunning (53 Mo. App.
548), 191
Fisher v. Guffey (193 Pa. St. 393;
44 Atl. Rep. 459), 244
Fisher v. Milliken (8 Pa. St. Ill),
226, 245
Fisher v. Rochester (6 Lans. 225),
333
Fitchburgh, etc., Corp. v. Melven
(15 Mass. 268), 366
Flack, In re ([1900] 2 Q. B. 32),
610
Flagstaff, etc., Co. v. Cullins (104
U. S. 176), 358
Fleming v. Montgomery Light Co.
(100 Ala. 657; 13 So. Rep. 618),
627, 686
Fleming Oil & Gas Co. v. South
Penn. Oil Co. (37 W. Va. 645;
17 S. E. Rep. 203), 113, 135, 208,
216
Fletcher v. Ry lands (L. R. 1
Exch.), 683
Flick V. Bell (42 Pac. Rep. (Cal.)
813), 394
Flint V. Glouster Gaslight Co. (3
Allen 343; 9 Allen 552), 692,
708, 733, 739, 754
Floyd, In re ([1897] 1 Ch. 633; 66
L. J. Ch. 350; 76 L. T. 251; 45
W. R. 4^5), 606
Flory V. Hellero (1 Monaghan
(Pa.) 478), 839
Flureau v. Thornhill (2 W. Bl.
1078), 320
liv
TABLE OF CASES.
(References are to pages.)
Flynn v. White Breast Coal Co.
(92 la. 738; 32 N. W. Rep. 471),
87, 91, 258
Fogarty v. Junction City, etc., Co.
50 Kan. 478; 31 Pac. Rep. 1052;
18 L. R. A. 756), 663
Foland v. Frankton (142 Ind. 546;
41 N. E. Rep. 1031), 454, 468
Foley V. Fletcher (3 H. & N. 779;
2 L. J. Exch. 100; 5 Jur. (N. S.)
342; 7 W. R. 141; 33 L. T. 11),
272
Folkstone v. Downing (54 Gas J.
313), 547
Fellwood V. Pearson (23 Gas J.
248), 759
Folsom V. Cragen (11 Colo. 205;
17 Pac. Rep. 515), 354, 361
Fonda v. Sage (46 Barb. 109), 199
Fond du Lac Water Co. v. Fond du
Lac (82 Wis. 322; 52 N. W. Rep.
439; 16 L. R. A. 581), 834
Foote V. Fire Department (5 Hill
99 [gunpowder]), 418
Fennell v. Guflfey (139 Pa. St. 341;
20 Atl. Rep. 1048; 155 Pa. St.
38; 29 Atl. Rep. 785), 109, 111,
232, 238
Ferens v. O'Brien (11 Q. B. Div.
21; 15 Cox C. C. 332), 843
Fergus Falls V ater Co. v. Fergus
Falls (65 Fed. Rep. 586), 489,
508
Ferguson v. Boston Co. (170 Mass.
182; 49 N. E. Rep. 115), 708,
728, 766
Ferguson v. Metropolitan Gaslight
Co. (38 N. Y. Supr. 185), 577,
587. 618
Ferguson v. Wilson (L. R. 2 Ch.
App. 77; 15 W. R. 27), 352
Fernandez v. Burleson (110 Cal.
164; 42 Pac. Rep. 566), 362
Fertilizing Co. v. Hyde Park (97
U. S. 659), 420, 663
Fidelity, etc., Co. v. W^ate.man
(161 111. 632; 44 N. E. Rep. 283;
32 L. R. A. 654, affirming 59 111.
App. 297), 829'
Findlay v. Carson (97 la. 537; 06
N. W. Rep. 759), 110
Findlay v. Parker (17 Ohio C. C.
294; 9 Ohio Cir. Dec. 710), 571
Findlay v. Smith (0 Munf. 134; 8
Am. Dec. 733), 288, 289, 291
Findlay Gaslight Co. v. Findlay (2
Ohio Cir. Ct. Rep. 237; 1 Ohio
Cir. Dec. 463), 529
Finegan v. Fall River Gas Works
(159 Mass. 311; 34 N. E. Rep.
523), 741, 750
Finnegan v. Pennsylvania Trust Co.
(144 Pa. St. 013), 272
Finnegan v. Steinner (28 Pittsb. L.
J. (N. S.) 68; 5 Pa. Super. Ct.
Rep. 127), 326
Fireman's Ins. Co. v. Cecil (12 Ky.
L. Rep. 48, 259), 799
Fireman's Fund Ins. Co. v. Sher-
man (20 Tex. Civ. App. 343; 50
S. W. Rep. 598), 814
First Congregational Church v.
Holyoke, eic, Ins. Co. (158 Mass.
475; 33 N. E. Rep. 572; 35 Am.
St. Rep. 508; 19 L. R. A. 587),
797, 813, 820
First National Bank v. Dow (41
Hun 13), 64, 77, 334, 360
First National Bank v. Harkness
(42 W. Va. 156; 24 S. E. 548; 32
L. R. A. 408), 56
First National Bank v. Sheafer
(149 Pa. St. 236; 24 Atl. Rep.
221). 309
Fagan v. Long (30 Mo. 222), 351
Fairchild v. Dunbar (128 Pa. St.
485; 18 Atl. Rep. 443), 76, 77,
83
Fairchild v. Fairchild (9 Atl. Rep.
(Pa.) 255), 272, 287, 290
Fall River v. Bristol Co. (125
Mass. 567), 833
TABLE OF CASES.
Iv
(References arc to pages.)
Fanker v. Anderson ( 173 Pa. St.
86; 34 Atl. Rep. 434), 254, 256
Fare v. Bath Gaslight Co. (25 Gas
J. 566), 723, 763
Farmers', etc., Ins. Co. v. Nixon (2
Colo. App. 265; 30 Pac. Rep.
42), 822, 825
Farmers' Loan, etc., Co. v. Iowa
Water Co. (78 Fed. Rep. 881),
381
Farmers' etc., Ins. Co. v. Simmons
(30 Pa. St. 299), 802
Farnum v. Piatt (8 Pick. 339),
329
Faulker v. Central Fire Ins. Co. ( 1
Kerr (N. B.) 279), 801
Faust V. American Fire Ins. Co.
(91 Wis. 158; 64 N. W. Rep.
883; 30 L. R. A. 783), 795, 816
Fawcett v. Whitehouse ( 1 Russ. &
M. 132), 312
Fechet v. Drake (12 Pac. Rep.
(Ariz.) 694), 645
Federal Oil Co. v. Western Oil Co.
(112 Fed. Rep. 373), 85, 145,
198
Felix V. Patrick (145 U. S. 317;
12 Sup. Ct. Rep. 862), 92
Fellows V. Walker (39 Fed. Rep.
651), 470, 434, 559
G
G. V. B. Mine Co. v. First National
Bank (95 Fed. Rep. 23; 36 C. C.
A. 633), 350
G. B. Mining Co. v. First National
Bank (95 Fed. Rep. 35; 35 C. C.
A. 510, affirming 89 Fed. Rep.
449), 368
G. C. T. Railroad Tax Case (92 U.
S. 575) , 837
Gadbury v. Ohio, etc., Gas Co. (65
N. E. Rep. (Ind. App.) 289),
211, 217
Gadbury v. Ohio, etc., Co. (67 N. E.
Rep. (Ind.) 259), 67, 68, 69, 70,
127, 129, 145, 148, 161, 166, 172,
174, 176, 182, 190, 197, 199, 217
Gage V. Wheeler (129 111. 197; 21
N. E. Rep. 1075), 284
Gaines v. Green Pond Iron Mining
Co. (33 N. J. Eq. 603, reversing
39 N. J. Eq. 86), 287, 288
Galbreath v. Armour (4 Bell App.
Cases 374), 552
Gale V. Kalamazoo (23 Mich. 344;
9 Am. Rep. 80), 488, 507
Gale V. Petroleum Co. (6 W. Va.
200), 75
Galey v. Kellerman (123 Pa. St.
491; 23 W. N. C. 139; 16 Atl.
Rep. 474), 121, 122, 181, 183,
266
Gallagher v. Kemmerer (144 Pa.
St. 509; 22 Atl. Rep. 970), 654
Gannon v. Patterson (193 111. 372;
62 N. E. Rep. 210), 288
Ganter v. Atkinson (35 Wis. 48),
74
Gardner v. Resumption, etc., Co. (4
Colo. App. 271; 35 Pac. Rep.
674), 361
Garman v. Potts (135 Pa. St. 506;
26 W. N. C. 305; 19 Atl. Rep.
1071), 154, 157
Garretson v. Merchants', etc., Co.
(81 la. 727; 45 N. W. Rep. 1047),
824, 826
Garrison v. CSiicago (7 Biss. 480),
426, 446, 469, 488, 505, 507
Gartside v. Outley (58 111. 210),
74, 286
Gas Co. V. Pittsburg (101 U. S.
219), 836
Gas & Water Co. v. Dowingion
(175 Pa. St. 341; 38 W. N. C.
376; 34 Atl. Rep. 799), 481, 497
Gaslight & Coke Co., In re (57 Gas
J. 1196), 624
Gaslight O^ v. Donnelly (93 N. Y.
557), 455
Gaslight & Coke Co. v. Hardy (17
Q. B. Div. 619), 606
Ivi
TABLE OF CASES.
(References are to pages.)
Gaslight & Coke Co. v. Hardy (17
Q. B. Div. 619; 56 L. J. Q. B.
168; 55 L. T. 585; 36 W. K. 50;
51 J. P. 6), 632
Gaslight & Coke Co. v. Herbert
Smith (3 Times Law Rep. 15),
632
Gaslight & Coke Co. v. Mead (45
L. J. M. C. 71), 607
Gaslight, etc., Co. v. New Albany
(156 Ind. 406; 59 N. E. Rep.
176), 446, 453, 458, 461, 465
Gaslight & Coke Co. v. St. George
Vestry (42 L. J. (N. S. Q. B.)
50), 393, 587
Gaslight & Coke Co. v. Vestry of
St. Mary (15 Q. B. Div. 1; 54 L.
J. Q. B. 414; 53 L. T. 457; 33 W.
R. 892; 49 J. P. 459), 545
Gavigan v. Atlantic Ref. Co. (186
Pa. St. 604; 40 Atl. Rep. 8.34),
6C2, 665, 666
Gee V. Pearse (2 DeG. & Sm. 325),
319
Geiger v. Green (4 Gill (Md.)
472), 82
Genet v. Delaware, etc., Co. (35 N.
Y. Supp. 147; 13 N. Y. Misc.
Rep. 409), 62
Genet v. Delaware, etc., Co. (136
N. Y. 593; 32 N. E. Rep. 1078,
reversing 122 N. Y. 505; 25 N. E.
Rep. 956), 62
Georgia Home Ins. Co. v. Jacobs
(56 Tex. 366), 824
Gerkins v. Kentucky Salt Co. (36 S.
W. Rep. (Ky.) 1), 289, 293,294
Gerkins v. Kentucky Salt Co. (100
Ky. 734; .39 S. W. Rep. 444),
289, 293, 294
German Fire Ins. Co. v. Board (54
Kan. 732; 39 Pac. Rep. 697),
802
Germania Fire Ins. Co. v. Klewer
(129 111. 599; 22 N. E. Rep. 489),
801
German Ins. Co. v. Roost (55 Ohio
St. 581; 45 N. E. Rep. 1097; 36
L. R. A. 236), 804
German Ins. Co. v. Standard Gas-
light Co. (70 N. Y. Supp 384;
34 N. Y. Misc. Rep. 594), 728
German- American Ins. Co. v.
Standard Gaslight Co. (67 N. Y.
App. Div. 539; 73 N. Y. Supp.
973), 735, 742, 746
German- American Ins. Co. v.
Standard Gaslight Co. (34 Misc.
594; 70 N. Y. Supp. 384; 67 N.
Y. App. Div. 539; 73 N. Y. Supp.
973), 826
German Mining Co., In re (4 DeG.
M. & G. 19; 24 L. J. Ch. 41; 18
Jur. 710; 23 L. T. (0. S.) 200;
2 W. R. 543), 348
Gesner v. Cairns (2 Allen (N. B.)
595), 32
Gesner v. Gas Co. (James (N. B.),
72), 32
Ghee v. Northern Union Gas Co.
(158 N. Y. 510; 53 N. E. Rep.
692, reversing 34 N. Y. App. Div.
551; 56 N. Y. Supp. 450). 515
Gibben v. Atkinson (64 Mich. 651;
31 N. W. Rep. 570), 76
Gibbs V. Consolidated Gas Co. ( 130
U. S. 396; 9 Sup. Ct. Rep. 553),
503, 527, 536, 538, 577
Gibney v. State (137 N. Y. 1; 33
N. E. Rep. 142; 19 L. R. A. 365),
780
Gibson v. Leonard (143 111. 182; 32
N. E. Rep. 182, affirming 37 HI.
App. 344). 408
Gibson v. Mullican (58 Tex. 430),
246
Gibson v. Oliver (158 Pa. St. 277;
27 Atl. Rep. 961), 131
Giffin V. Southwest, etc., Lines
(172 Pa. St. 580; 33 Atl. Rep.
578). 44
Gill V. Weston (110 Pa. St. .*^05;
1 Atl. Rep. 921), 330, 369, 645
TABLE OF CASES.
Ivii
(References are to pages.)
Gilbert's Case (L. R. 5 Ch. App.
559; 18 \Y. R. 938), 352
Gilbert v. Jess (31 Wis. 110), 104
Gillett V. Treganza (6 Wis. 343),
63
Gillispie Tool Co. v. Wilson (123
Pa. St. 19; 16 Atl. Rep. 36),
143
Gird V. California Oil Co. (60 Fed.
Rep. 531), 55, 335
Given v. State (66 N. E. Rep.
(Ind.) 750), 32, 42. 44. 45, 55,
412. 417, 418
Glading v. Frick (88 Pa. St. 460),
369
Glasgow V. Chartiers ( 152 Pa. St.
48; 25 Atl. Rep. 232, affirming
23 Pittsb. L. J. (N. S.) 146; 31
W. X. C. 207), 107. 114, 115,
121, 160, 188, 222, 264
Glasgow V. Chartiers Gas Co. (152
Pa. St. 48; 25 Atl. Rep. 232, af-
firming 22 Pittsb. L. J. (N. S.)
131), 265
Glasgow V. Glasgow, etc., R. R.
Co. ([1895] App. Cas. 376; 64 L.
J. P. C. 171; 72 L. T. 809; 59
J. P. 788; 11 Rep. 226), 518
Glasgow V. Griffith (22 Pittsb. L.
J. (N. S.) 181), 91, 187, 222,
265
Glasgow V. Patrick, etc., Co. (22
Gas J. 54), 627
Glasgow Gas Comrs. v. Solicitor (3
Court of Sessions Rep. (4 Lewis)
857), 837
Gleason v. Dalton (28 X. Y. App.
Div. 555; 51 X. Y. Supp. 337; 85
X. Y. St. Rep. 337, reversing 23
X. Y. Misc. 18; 50 X. Y. Supp.
90), 450
Glidden v. Sturples (52 Pa. St.
40), 281
Gloag & Miller's Contract, In re
(23 Ch. Div. 320; 52 L. J. Ch.
054; 48 L. T. 629; 31 W. R.
601), 317
Gloninger v. Franklin Coal Co. (55
Pa. St. 9), 106
Gloucester Bank v. Rudry Collier
Co. ([1895] 1 Ch. 029; 64 L. J.
Ch. 451; 72 L. T. 375; 48 W. R.
486; 2 Manson 223; 12 R. 183).
372, 377
Goddard's Appeal (1 Walker (Pa.)
97, 231, 234
Gold V. Peoria (65 111. App. 602),
450, 457
Golden Reward Mining Co. v. Bux-
ton (97 Fed. Rep. 413), 49
Goller V. Fett (30 Col. 481), 301
Goodlander Milling Co. v. Standard
Oil Co. (63 Fed. Rep. 400; 24 U.
S. App. 7; 27 L. R. A. 583), 401
Goodright v. Cator (2 Dougl. 485),
199
Goodson V. Richardson (L. R. 9 Ch.
221; 43 L. J. Ch. 790; 30 L. T.
(X. S.) 142; 22 W. R. 337),
534, 537, 553
Goodson V. Sunbury, etc. (72 L. T.
Rep. 251; 60 J. P. 585), 788
Goodtitle v. Aiken (1 Burr 143),
333
Goodwin v. Gilbert (9 Mass. 510),
102
Gordon v. Butler (105 U. S. 553),
174
Gordon v. George (12 Ind. 408),
231, 233
Gosling V. Gaskell ([1897] A. C.
575). 608
Gosport V. Pritchard (156 Ind.
400; 59 X. E. Rep. 1058), 446,
447, 450, 457, 458, 464, 471. 472
Goss V. Fire Brick Co. (4 Super.
Ct. (Pa.) 167), 232, 234
Goss V. Helbing (77 Cal. 190; 19
Pac. Rep. 277), 355, 363
Gould V. Glass (19 Barb. 179), 329
Graeff v. I^ix (24 Pa. Co. Ct. Rep.
657), 558
Graham v. Pierce (19 Graft. 28;
100 Am. Dec. 658), 303
Iviii
TABLE OF CASES.
(References ara to ;ages.)
Grand Island Gas Co. v. West (28
Neb. 852; 45 N. W. Rep. 242),
465, 475
Grand Rapids v. Grand Rapids Hy-
draulic Co. (66 Mich. 606; 33
N. W. Rep. 749), 536
Grand Rapids, etc., Co. v. Ameri-
can Fire Ins. Co. (93 Mich. 396;
53 N. W. Rep. 538), 808
Grange v. Pately, etc., Co. (14 Gas
J. 309), 651, 664
Grant v. Davenport (36 la. 396),
450
Graves v. Key City Gas Co. (83 la.
714; 50 N. W. Rep. 283), 255
Graves v. Key City Gas Co. (93 la.
470; 61 N. W. Rep. 937), 577,
609, 612
Gray v. Boston Gaslight Co. (114
Mass. 149), 391
Gray v. Pullen (5 B. & S. 970; 34
L. J. Q. B. 265; 11 L. T. 569;
13 W. R. 257), 754
Greaney v. Holyoke (174 Mass.
437; 54 N. E. Rep. 880), 718,
766
Great Central Gas Consumers' Co.
V. Tallis (3 Gas J. 5), 587
Great Falls W. W. Co. v. Great
Northern Ry. Co. (54 Pac. Rep.
• (Mont.) 963), 389, 520
Great Western, etc., Co. v. Haw-
kins (66 N. E. Rep. (Ind. App.)
765), 389
Green v. Ashland Iron Co. (62 Pa.
St. 97), 42
Greenough's Appeal (9 Pa. St. 18),
278
Greensburg Fuel Co. v. Irwin, etc.,
Co. (162 Pa. St. 78; 29 Atl. Rep.
274), 64
Greenslade v. Dower (7 B. & C.
635; 1 M. & Ry. 640; 6 L. J.
(O. S.) K. B. 155), .348
Greenwald v. Ins. Co. (3 Phila.
323), 803
Greenway v. Adams (12 Ves. Jr.
395), 246
Gregg V. Roaring Springs, etc., Co.
70 S. W. Rep. (Mo.) 920), 297
Gribben v. Atkinson (64 Mich. 651;
31 N. W. Rep. 570), 162, 839
Gribbens v. Atkinson (64 Mich.
351; 31 N. W. Rep. 570), 839
Griffin v. Fellows (81 1/2 Pa. St.
114), 285, 286
Griffin v. Goldsboro Water Co. (122
N. C. 206; 30 S. E. Rep. 319; 41
L. R. A. 240), 577, 579, 581, 597,
599
Griffiths v. City of London Gas Co.
(16 Gas J. 139), 731, 764
Grimsley v. Hawkins (46 Fed. Rep.
400), 703
Grinstone, Ex parte (Amb. 708),
279
Grommes v. St. Paul Trust Co.
(147 111. 634; 35 N. E. Rep. 820;
37 Am. St. Rep. 248), 171, 241,
245
Gross V. Scott Mfg. Co. (48 Fed.
Rep. 35), 174
Grove v. Hedges (55 Pa. St. 504),
73, 77, 101
Grover v. Howard (31 Me. 546), 94
Grubb V. Bayard (2 Wall Jr. 81).
63, 82, 105
Grubb V. Grubb (74 Pa. St. 25),
296
Grubb V. Grubb (101 Pa. St. 11),
301
Grubb V. Guilford (4 Watts (Pa.)
223), 82
Grubb's Appeal (66 Pa. St. 117),
296
Grubb's Appeal (90 Pa. St. 228),
296
Grummett v. Gingrass (77 Mich.
369; 43 N. W. Rep. 999), 320
Grundy v. Janesville (84 Wis. 574;
54 N. W. Rep. 1085). 788
Grymes v. Boweren (6 Bing. 439),
646
Guffey V. Clever (146 Pa. St. 548;
23 Atl. Rep. 161), 90, 225, 228
TABLE OF CASES.
lix
(References are to pages.)
Guffey V. Deeds (9 Pa. Co. Rep.
449), 106
Guffey V. Hukill (34 W. Va. 49; 11
S. E. Rep. 754; 8 L. R. A. 759),
70, 145, 195, 199, 200
Guffin V. Fellows (81 1/2 Pa. St.
114), 285, 286
Gunther v. Liverpool, etc., Ins. Co.
(85 Fed. Rep. 846; 134 N. S.
110; 10 Sup. Ct. Rep. 448), 795,
799, 802
Guthrie v. Jones (108 Mass. 191),
632, 638
H
Hacker v. London Gaslight Co. (32
Gas J. 781), 624, 681, 762
Hacker v. Philadelphia (6 Phila.
94), 570
Haenssler v. Missouri Iron Co. (110
Mo. 188; 19 S. W. Rep. 75; 16
L. R. A. 220), 298
Hague V. Wheeler (157 Pa. St.
324; 27 Atl. Rep. 714; 22 L. R.
A. 141; 33 W. X. C. 83), 33, 44,
48, 119
Haight V. Conners (Pa. St.) (24
Atl. Rep. 302), 94
Hail V. Reed (15 B. Mon. 479; 11
Mor. Min. Rep. 103), 32, 33, 37,
42, 43
Hale, etc., Co. v. Storey County (1
Nev. 105), 839
Haley v. Dorchester, etc., Ins. Co.
(12 Gray 545), 816
Halford v. Hatch (Doug. 187), 246
Hall V. Insurance Co. (58 N. Y.
292; 17 Am. Rep. 255), 798, 809
Hall V. Nashville, etc., Ry. (13
Wall. 367), 827
Hall V. Vernon (47 W. Va. 295; 34
S. E. Rep. 764; 49 L. R. A. 464),
52, 300
Hamilton v. Delhi, etc., Co. (118
Cal. 148; .50 Pac. Rep. 378),
355. 356
Hamilton v. Elliott (5 S. & R. 375),
199
Hamilton v. Pittock (158 Pa. St.
457; 27 Atl. Rep. 1079), 126,
142
Hamilton v. Hamilton Gaslight Co.
(11 Ohio Dec. 513), 461, 488,
496, 508, 564
Hamilton Gaslight & Coke Co. v.
Hamilton (37 Fed. Rep. 832),
493
Hamilton Gaslight & Coke Co. v.
Hamilton (146 U. S. 258; 13
Sup. Ct. Rep. 90, affirming 37
Fed. Rep. 832), 496, 558
Hammond v. Hopkins ( 143 U. S.
224), 92
Hampton v. Cradley Heath Gas Co.
(14 Gas J. 606), 713, 716, 717,
733
Hampton v. Oxford Gas Co. (3 Gas
J. 64). 590
Hancock's Est., In re 7 Kulp.
(Pa.) 36), 76, 272
Handforth v. Jackson ( 150 Mass.
U'3; 22 N. E. Rep. 634), 648
Hangen v. Albina, etc., Co. (21 Ore.
411; 28 Pac. Rep. 244; 14 L. R.
A. 424), 577, 579, 582, 585, 586
Hankey v. Kramp (12 Ohio Cir. Ct.
Rep. 95; 5 Ohio C. D. 439), 160
Hankey v. Philadelphia Co. (5 Pa.
Super. Ct. 148; 41 W. N. C. 27),
392, 393
Hann v. Weymouth, etc., Co. (18
Gas J. 186), 728, 763
Hanover Fire Ins. Co. v. Stoddard
(52 Neb. 745; 73 N. W. Rep.
291), 796
Harbison v. Knoxville Water Co.
53 S. W. Rep. (Tenn.) 993),
578. 594, 600
Hardaker v. Idle Dist. Council
([1896] 1 Q. B. 335; 65 L. J. Q.
B. B. (N. S.) 363; 74 Law T.
Rep. §9; 44 W'. R. 323; 60 .J. P.
196), ^8, 754
Hardesty v. Richardson (44 Md.
617; 22 Am. Rep. 57), 315
Ix
TABLE OF CASES.
(References are to pages.)
Hargrove v. King (5 Ired. Eq. 430),
247
Harkness v. Burton (39 la. 101),
80, 83
Harlan v. Coal Co. (35 Pa. St.
287), 79
Harlan v. Lehigh, etc., Co. (35 Pa.
St. 287), 77, 79
Harlan v. Logansport, etc., Co. ( 133
Ind. 323; 32 N. E. Rep. 930),
101, 102
Harlem Gaslight Co. v. New York
(33 N. Y. 309, affirming 3 Robt.
100), 446, 454, 455, 462
Harlow v. Lake Superior, etc., Co.
(36 Mich. 105), 285, 286
Harness v. Eastern Oil Co. (49 W.
Va. 232; 38 S. E. Rep. 662),
103, 121, 122, 128, 153, 218, 200
Harrington v. Florence Oil Co. (178
Pa. St. 444; 35 Atl. Rep. 855),
297, 301, 304, 307
Harris v. Cobb (49 W. Va. 350; 38
S. E. Rep. 559), 230, 260, 273,
335
Harris v. Heackman (62 la. 411;
17 N. W. Rep. 592), 171, 245
Harris v. Lloyd (11 Mont. 390; 28
Pac. Rep. 736), 309, 344
Harris v. Ohio Oil Co. (57 Ohio St.
629; 50 N. E. Rep. 1129; 57
Ohio St. 118; 48 N. E. Rep. 502),
107, 114, 121, 122, 128, 129, 183,
190, 200
Harrisburg, etc., Co. v. Goodman
(129 Pa. St. 206; 19 Atl. Rep.
844), 637
Harrison, Ex parte (13 Q. B. Div.
753), 606
Harrison v. Barrow (63 L. T. 834),
225
Harrison v. Vreeland (38 N. J. L.
300), 102
Hart V. Plum (14 Cal. 148), 641
Hartford v. Hartford, etc., Co. (65
Conn. 324; 32 Atl. Rep. 925),
454, 457
Hartwell v. California Fire Ins. Co.
(84«Me. 524; 24 Atl. Rep. 954),
819
Hartwell v. Cansman (2 Stock Eq.
(N. J'.) 128), 77
Haskell v. Gallagher (20 Ind. App.
224; 50 N. E. Rep. 485; 67 Am.
St. Rep. 250), 355, 356, 360
Hastings v. Cutler (24 N. H. 481),
104
Hatcher v. Dunn (102 la. 411; 71
N. W. Rep. 343; 66 N. VV. Rep.
905; 36 L. R. A. 689), 787
Hatfield v. St. John Gaslight Co.
(32 N. B. 100), 736
Hatherton v. Bradbourne (13 Sim.
599; 13 L. J. Ch. 171; 7 Jur.
1100), 272
Hauk V. Standard Oil Co. (38 N.
Y. App. Div. 621 ; 56 N. Y. Supp.
273), 783
Hauck V. Tidewater Pipe Line Co.
(1.53 Pa. St. 366; 26 Atl. Rep.
644; .20 L. R. A. 642), 408, 662,
664, 666
Haven v. Emery (33 N. H. 66),
630
Haven v. Mehlgarten (19 111. 90),
308
Hawesville v. Hawes (6 Bush. 232),
333
Hawkins v. Pepper (117 N. C. 407;
23 S. E. Rep. 434), 70, 83, 148,
190, 199
Hawkins v. Robinson (37 J. P.
662), 543
Hawkins v. Spokane, etc., Co. (2
Idaho 970; 28 Pac. Rep. 433),
340, 345, 348
Hawks V. Taylor (70 111. App.
255), 108
Hawtyne v. Bourne (7 M. & W.
595; 10 L. J. (N. S.) Exch. 224;
5 Jur. 118), 348
Hay v. Springfield (64 111. App.
671), 450, 451
Hayden v. Stoughton (5 Pick. 528),
185
TABLE OF CASES.
Ixi
(References are to pages.)
Hay ford v. Wentworth (54 Atl.
Rep. (Me.) 940), 629
Hays V. Doane (11 N. J. Eq. 84),
634, 638, 639
Hays V. Gallon, etc., Co. (29 Ohio
St. 330), 381
Haywood v. Cope (25 Beav. 140;
27 L. J. Ch. 468; 4 Jur. (N. S.)
227; 31 L. T. (O. S.) 48; 6 W.
R. 304), 313, 318
Heal V. Niagara Oil Co. (150 Ind.
483; 50 N. E. Rep. 482), 283
Healey v. Mutual, etc., Co. (133 111.
556; 25 N. E. Rep. 52), 830
Heap V. Barton (12 C. B. 274),
646
Heath v. Sauson (2 B. & Ad. 291),
340
Hecksher v. Sheafer (17 W. X. C.
(Pa.) 323), 839
Heeter v. Eckstein (50 How. Pr.
445), 247
Heffron v. Kittanning Ins. Co.
(132 Pa. St. 580; 20 Atl. Rep.
698), 803, 804
Heh V. Consolidated Gas Co. (201
Pa. St. 443; 50 Atl. Rep. 994;
88 Am. St. Rep. 819), 698, 717,
723, 765
Heil V. Strong (44 Pa. St. 264),
286
Heilbron v. Cuthbert (96 Ga. 312;
23 S. E. 206), 561
Heinouer v. Jones (159 Pa. St.
228; 28 Atl. Rep. 228), 216
Heintz v. Shortt (149 Pa. St. 286;
24 Atl. Rep. 316). 167, 206
Heiple v. East Portland (13 Ore.
97). 512
Helena v. Helena W. W. Co. (122
Fed. Rep. 1), 489, 492, 496
Heller v. Dailey (28 Ind. App.
555; 63 N. E. Rep. 490). 33, 67,
79, 94, 106, 112, 169, 170, 172,
226, 231, 232, 235, 237, 238, 239,
242, 244, 245, 365
Heman v. St. Louis, etc.. Co. (75
Mo. App. 372), 531, 532
Hemphill v. Giles (06 N. C. 512),
366
Hemstead v. Phoenix Gaslight, etc.,
Co. (3 H. & C. 745; 11 Jur. N. S.
626; 13 W. R. 662; 34 L. J. C.
P. 108; 14 Gas J. 399), 755
Henderson v. Allegheny Heating Co.
(179 Pa. St. 513; 39 W. N. C.
485; 36 Atl. Rep. 312), 712, 723,
767
Henderson v. Coal & Coke Co. ( 140
U. S. 25; 11 Sup. Ct. Rep. 691),
176
Henderson v. Ferrell (183 Pa. St.
547; 41 W. N. C. 404; 38 Atl.
Rep. 1018), 113, 208, 224
Henderson v. New Castle, etc., Gas
Co. (37 Sol. J. 403), 584, 709
Henderson Bridge Co. v. Henderson
City (173 U. S. 592), 431
Hendrie v. Lea Bridge, etc., Co. (21
Gas J. 949, 989), 651, 674
Hendrix v. Hendrix (65 Ind. 329),
229
Hendrix v. McBeth (61 Ind. 473;
28 Amer. Rep. 680), 229, 287
Hendy v. Dinkershoff (57 Cal. 3),
630
Henkle v. Dillon (15 Ore. 610; 17
Pac. Rep. 148), 630, 631
Henne v. South Penn. Oil Co. (52
W. Va. — ; 43 S. E. Rep. 147),
103, 118, 132, 182, 201
Henry v. Cleveland, etc., R. R. Co.
(67 Fed. Rep. 426), 404, 407
Henshaw v. Wells (9 Humph. 508),
367
Heron v. Phoenix, etc., Ins. Co.
(180 Pa. St. 257; 40 W. N. C.
55; 36 AtL Rep. 740; 36 L. R. A.
517), 807, 811
Herrington v. \Yood (6 Ohio C. Ct.
Rep. 326; 3 Ohio Cir. Dec. 475),
75^75. 85. 151, 160
Hersey v. White (9 T. L. R. 335),
613
Hess V. Pegg ( 7 Xev. 23 ) , 563
Ixii
TABLE OF CASES.
(References are to pages.)
Heuer v. Northwestern, etc., Ins.
Co. (144 111. 393; 33 N. E. Rep.
411), 805
Heuer v. Winchester Fire Ins. Co.
(151 111. 331; 37 N. E. Rep. 873,
affirming 45 111. App. 239), 805
Hewitt, etc., Co. v. General Electric
Co. (61 111. App. 168), 641
Hewitt, etc., Co. v. Watertown,
etc., Co. (65 111. App. 153), 640,
644, 646
Hewitt Iron Mining Co. v. Dessau
Co. (129 Mich. — ; 89 N. W.
Rep. 365; St. 138; 9 Atl. Rep.
144), 162, 275
Heysham v. Dettre (89 Pa. St.
506). 632
Hiberian Gaslight Co. v. Parry (L.
R. 4 Ind. 453), 606
Hichens v. Congrove (4 Russ. 562),
312
Hieronynius v. Brenville Water
Supply Co. (131 Ala. 447; 31 So.
Rep. 31), 600, 605, 610. 613, 614
Higgins V. Armstrong ( 9 Colo. 38 ;
10 Pac. Rep. 232), 342, 344, 348
Higgins V. California, etc., Co. (109
Cal. 304; 41 Pac. Rep. 1087), 84,
103, 258
Huggins V. Daley (99 Fed. Rep
606; 48 L. R. A. 320), 250
Higgins V. Hopkins (3 Exch. 163
18 L. J. Exch. 113; 6 Ry. Cas
75), 345
Higgins V. San Diego (118 Cal
524; 45 Pac. Rep. 824; 50 Pac
Rep. 670), 464, 573
Higgins V. Samels (2 J. & H. 460;
7 L. T. 240), 319
Hill, Ex parte (6 Ch. Div. 63), 606
Hill V. Gaslight Co. (13 Gas J.
877), 720
Hill V. Joy (149 Pa. St. 243; 24
Atl. Rep. 293), 124
Hill V. Schneider (43 IST. Y. Supp.
1; 13 X. Y. App. Div. 299; 4 N.
Y. Ann. Cas. 70), 775
Hill V. Wallasey L. B. ([1894] 1
Ch. 133; 63 L. J. Ch. 1 ; 69 L. T.
641; 42 W. R. 81 ; 7 Rep. 51),
517
Hilton's Appeal (116 Pa. St. 351;
9 Atl. Rep. 342), 369
Hilton V. Woods (L. R. 4 Eq. 432;
36 L. J. Ch. 491; 16 L. T. 736;
15 W. R. 1105), 49
Hindson v. Markle (171 Pa. St.
138; 33 Atl. Rep. 74), 654, 658
Hines v. Miller (122 Cal. 517; 55
Pac. Rep. 401), 354
Hingsley v. Hillside Coal Co. (144
Pa. St. 613; 29 W. N. C. 368; 23
Atl. Rep. 253), 272
Hipkins v. Birmingham, etc., Co.
(5 H. & N. 74; 6 H. & N. 250;
9 Gas J. 63; 778; 30 L. J. Exch.
60; 9 W. R. 168), 652
Hoag V. Lake Shore, etc., R. R.
Co. (85 Pa. St. 293), 400
Hobart v. Murray (54 Mo. App.
249), 62, 76, 77
Hobbs V. Guardian, etc., Co. (12
Can. Sup. Ct. 631), 803, 805
Hoch V. Bass (133 Pa. St. 328; 19
Atl. Rep. 360), 199, 217
Hoddesdon Gas & Coke Co. (6 C. B.
(N. S.) 239; 5 Jur. (N. S.) ;
1013; 28 L. J. C. P. 268; 7 W. R.
415; 8 Gas J. 261), 576
Hodgson V. Parkins (84 Va. 700; 5
S. E. Rep. 710), 62, 79, 81, 101,
228
Hodson V. Heuland ([1896] 2 Ch.
428; 65 L. J. Ch. 754; 74 L. T.
881; 44 W. R. 684), 315
Hoehle v. Allegheny Heating Co. (5
Pa. Super. Ct. 21), 577, 589
Hoerdt v. Hahne (91 111. App.
514), 171, 242. 245
Hofer's Appeal (116 Pa. St. 360; 9
Atl. Rep. 441), 94
Hogan V. Fayette Gas Fuel Co. (21
Pa. Co. Ct. Rep. 503; 29 Pittsb.
Leg. J. (N. S.) 229), 501, 529,
530
TABLE OF CASES.
Ixiii
(References are to pages.)
Hogsett V. Ellis (17 Mich. 351),
367
Hoin V. Lancaster (13 Lane. L.
Rev. 131), 710, 722
Holbrook v. Conner (CO Me. 578),
174
Holbrooke v. Harrington (36 Pac.
Rep. (Cal.) 365), 308
Holden v. Liverpool, etc., Co. (3 C.
B. 1; 15 L. J. C. P. 301; 10 Jur.
883), 720, 745
Holding V. Liverpool Gas Co. (3 C.
B. 1; 10 Jur. 883; 15 L. J. C. P.
301; 5 N. Y. Leg. Obs. 77;
Anthon N. P. 356, note), 687,
703, 708
Holliday v. Nat. Telephone Co. (68
L. J. Q. B. 1016; 81 L. T. 252;
47 W. R. 658; 15 L. T. R. 483;
[1899] 2 Q. B. 392), 754
Hollingsworth V. Fry (4 Dall. 345),
211
Holly V. Boston Gaslight Co. (8
Gray 123; 69 Am. Dec. 233), 681,
686, 687, 697, 698, 707, 709, 710,
720, 723, 742, 744, 749, 750, 751,
756, 768
Holly Mfg. Co. V. New Chester
Water Co. (48 Fed. Rep. 879),
364
Holman's Appeal (24 Pa. St. 174),
294
Holmes v. Bellingham (7 C. B. (N.
S.) 329). 333
Holt V. Gaslight & Coke Co. (L.
R. 7 Q. B. Div. 728; 41 L. J.
Q. B. 351; 27 L. T. (N. S.) 442),
393
Holyrod v. Marshall (2 Giff. 382;
2 DeG. F. & J. 596; 3 L. J. Ch.
655; 30 L. J. Ch. 385; 3 L. J.
Ch. 193), 046
Honeyman v. Thomas (25 Ore.
539; 36 Pac. Rep. 656), 644
Hood V. Easton (2 Giff. 692; 2
Jur. (N. S.) 729; 27 L. T. (O.
S.) 295; 4 W. R. 575), 372, 376
Hook V. Garfield Coal Co. (112 la.
210; 83 N. W. Rep. 963), 289,
296
Hooks V. Forst (165 Pa. St. 238;
30 Atl. Rep. 846), 164, 169, 308,
309
Hoosac Mining, etc., Co. v. Donat
(10 Colo. 529; 16 Pac. Rep. 157),
268
Hope's Appeal (29 W. N. C. (Pa.)
365; 3 Atl. Rep. 23; 2 Cent. Rep.
43; 33 Pittsb. L. J. (N. S.) 270),
62, 76, 77, 251, 272
Hope Mining Co., In re ( 1 Savvy..
710), 356
Hopkins v. Hudson (107 Ind. 191;
8 N. E. Rep. 81), 359
Hopkins v. Grazebrook (6 B. & C.
31; 9 D. & R. 22; 5 L. J. (0.
S.) K. B. 05), 320
Hoppes V. Bale (105 la. 648; 75 N.
W. Rep. 495), 360
Horberg v. May (153 Pa. St. 216;
25 Atl. Rep. 750), 141
Hornby v. Liverpool, etc., Gas Co.
(47 J. P. 231), 788
Horrigan v. Nowell (110 Mass.
470), 786
Hosack V. Crill (53 Atl. Rep. (Pa.)
640), 67, 76
Hosie V. Gray (71 Pa. St.* 198),
369
Hot Springs, etc., Co. v. Hot
Springs (70 Ark. 300; 67 S. W.
Rep. 761), 421
Houghton, In re (20 Hun 395),
788
Houlgate v. Surrey Consumers' Gas
Co. (8 Gas J. 261), 576, 600
Hourigan v. Lowell (110 Mass.
470), 786
Howell V. Millville (60 N. J. L.
95; 36 Atl. Rep. 691), 563
Ho.wland v. Coffin (9 Pick. 52),
2%3
Hovelman v. Kansas City Horse R.
R. Co. (79 Mo. 632), 494
Ixiv
TABLE OF CASES.
(References are to pages.)
Hoyt V. Latham (143 U. S. 553;
12 Sup. Ct. Rep. 568), 92
Huber v. Meikel (94 N. W. Rep.
(Wis.) 354), 42
Huddle, In re (16 Fed. Rep. 373),
224, 226
Huddersfield v. Ravensthorpe TJi-
ban District Council ([1897] 2
Ch. 121; 66 L. J. Ch. 581, re-
versing [1897] Ch. 652; 66 L. J.
Ch. N. S. 286; 76 L. T. Rep.
377), 463
Hudepohl v. Libert, etc., Co. (80
Cal. 553; 22 Pac. Rep. 339), 94
HuflF V. Austin (46 Ohio St. 386;
21 N. E. Rep. 864), 701
Huff V. McCauley (53 Pa. St. 206),
83
Huff V. McDonald (22 Ga. 131),
296. 301
Huff V. Nickerson (27 Me. 106),
102
Huffman v. State (21 Ind. App.
449; 52 N. E. Rep. 715), 552,
553, 555
Huggins V. Daley (99 Fed. Rep.
606; 40 C. C. A. 12; 48 L. R.
A. 320), 68, 69, 84, 99, 107. 124,
145, 146, 166, 168, 200, 202
Hughes V. Bucknell (8 C. & P.
566),' 367
Hughes V. Devlin (23 Cal. 501),
298
Hughes V. Maiden, etc., Co. (168
Mass. 397; 47 N. E. Rep. 125),
791
Hughes V. Momence (163 111. 535;
45 N. E. Rep. 300), 492, 494,
512, 51-5, 565
Hughes V. United Pipe Lines (119
N. Y. 423; 23 N. E. Rep. 1042),
32, 33, 42, 43, 293
Hughes V. Williams (12 Ves. 493),
371, 372, 373, 376
Hughes V. Williams (7 Ch. Div.
192; 47 L. J. Ch. 152; 26 W. R.
348), 374
Hukill V. Guffey (37 W. Va. 425;
16 S. E. Rep. 544), 195, 219
Hukill V. Myers (36 W. Va. 639;
15 S. E. Rep. 157), 195, 201
Hulett V. Pudsey Gas Co. (28 Gas
J. 663), 790
Humble v. Langston (7 M. & W.
517), 244, 245
Hummelstown v. Brunner (17 Pa.
Co. Ct. Rep. 140; 5 Pa. Dist. Rep.
8), 561
Humphreys v. McKissock (140 U.
S. 304; 11 Sup. Ct. Rep. 779),
94
Hunt V. Bay State Iron Co. (97
Mass. 279), 631
Hunt V. Lowell Gaslight Co. (13
Gas J. 877; 1 Allen 343), 685,
720, 723, 742, 743, 749, 757, 758
Hunt V. Lowell Gaslight Co. (8
Allen 169 ; 85 Am. Dec. 697;
3 Allen 410), 709, 710, 711, 730,
757, 758, 759
Hunt's Case (37 L. .J. Ch. 278; 16
W. R. 472), 352
Hunter v. Apollo Oil & Gas Co.
(54 Atl. Rep. (Pa.) 274), 253,
274
Hunter v. Savage, etc., Co. (4 Nev.
153), 361
Hutchinson v. Boston Gaslight Co.
(122 Mass. 219), 697, 702, 710
Hutchison v. Commonwealth (82
Pa. St. 472), 58
Hutchinson v. Consolidated Gas Co.
(4 N. Y. App. Div. 161; 38 N. Y.
Supp. 929), 768
Hutchinson v. Kay (23 Beav. 413),
634
Hutchinson v. Kline (199 Pa. St.
564; 49 Atl. Rep. 312). 306
Huxhan v. Llewellyn (21 W. R.
570). 314
Hyde Park, etc., Co. v. Porter ( 167
111. 276; 47 N. E. Rep. 206; af-
fii'ming 64 HI. App. 152), 391,
694, 755
TABLE OF CASES.
Ixv
(References are to pages.)
Hynds v. Schenectady, etc., Ins.
Co. (11 N. Y. 554, affirming 16
Barb. 119), 807, 812
lams V. Carnegie Natural Gas Co.
(194 Pa. St. 72; 45 Atl. Rep.
54), 154, 276
Ibach V. Huntington, etc., Co. (23
Ind. App. 281; 55 N. E. Rep.
249), 090, 725
Idaho Gold Mining Co. v. Winchell
(3 Idaho — ; 59 Pac. Rep. 533),
354
Her V. Ross (63 Xeb. — ; 90 X. W.
Rep. 869), 488
Illinois, etc., Ry. Co. v. Ogle (82
111. 627), 49
Illinois Trust & Savings Bank v.
Arkansas City (76 Fed. Rep.
271; 22 C. C. A. 171; 34 L. R. A.
518), 453, 464, 489, 500, 502,
509, 530, 538
Illinois, etc., Co. v. St. Louis (2
Dill. 70), 488
Imperial Fire Ins. Co. v. Fargo
(95 U. S. 227), 806
Imperial Gaslight & Coke Co. v.
London Gaslight & Coke Co. (10
Exch. 39; 26 Eng. L. & Eq. 425;
3 Gas J. 483), 843
Imperial Gas Co. v. Chauntler (2
Gas J. 362),* 613
Imperial Gas Co. v. Porter (5 Gas
J. 372, 403), 624
Independent Refiners' Association v.
Western, etc., R. R. Co. (4 Inter.
Rep. 162), 384
Indiana, etc.. Gas Co. v. Anthony
(26 Ind. App. 307; 58 N. E. Rep.
868), .589, 604, 624
Indiana, etc., Oil Co. v. Hinton (64
N. E. Rep. (Ind.) 224), 109,
112, 256
Indiana, etc., Co. v. Long (27 Ind.
App. 219; 59 N. E. Rep. 410),
686, 688, 724, 725, 726, 727
Indiana, etc.. Gas Co. v. New
Hampshire, etc., Co. (23 Ind.
App. 298; 53 N. E. Rep. 485),
688, 725, 726, 826
Indiana, etc., R. R. Co. v. Hartley
(67 111. 439), 553
Indiana, etc., Co. v. State (158 Ind.
516; 63 N. E. Rep. 220; 57 L. R.
A. 761), 576, 577, 621, 626
Indiana Natural Gas & Oil Co. v.
Jones ( 14 Ind. App. 55 ; 42 N. E.
Rep. 487; 12 Nat. Corp. Rep.
60), 53, 391, 392, 393
Indiana, etc., Co. v. McMath (26
Ind. App. 1.54; 57 N. E. Rep.
593; 59 N. E. Rep. 287), 556
Indiana X'atural, etc., Co. v. Mc-
Math (26 Ind. App. 154; 57 X.
E. Rep. 593; 59 X. E. Rep. 287),
695
Indianapolis v. Croas (7 Ind. 9,
12), 512
Indianapolis v. Consumers' Gas Co.
(140 Ind. 107; 39 X. E. Rep.
433; 27 L. R. A. 514; 48 Am.
and Eng. Corp. Cas. 151 ; 49
Am. St. Rep. 183), 421, 423, 427,
446. 544
Indianapolis v. Indianapolis Gas-
light, etc.. Co. (66 Ind. 396),
426. 427, 446. 447, 507
Indianapolis v. Kingsbury (101
Ind. 200; 51 Am. Rep. 749), 282
Indianapolis v. Wann ( 144 Ind.
175; 42 X. E. Rep. 901), 469
Indianapolis, etc., R. R. Co. v.
Citizens' Street R. R. Co. (127
Ind. 369; 24 N. E. Rep. 1054; 8
L. R. A. 539; 26 N. E. Rep. 893),
478. 488
Indianapolis, etc.. Gas Co. v. Pierce
(25 Ind. App. 116; 56 N. E. Rep.
137), 229
Indianapolis, etc., Co. v. Spaugh
( Ig Ind. App. 683 ; 46 N. E. Rep.
691), 125, 126
Indianapolis Gas Co. v. Indianap-
olis (82 Fed. Rep. 245), 428
Ixvi
TABLE OF CASES.
(References are to pages.)
Indianapolis Gas Co. v. Shumack
(23 Ind. App. 87; 54 N. E. Rep.
414), 735
Indianapolis Gas Co. v. Teters (15
Ind. App. 475; 44 N. E. Rep.
549), 155, IGO, 162
Indianapolis Natural Gas Co. v.
Kibbey (135 Ind. 357; 35 N. E.
Rep. 392), 101, 102, 121, 326
Indianapolis Natural Gas Co. v.
Spaugh (17 Ind. App. 683; 46 N.
E. Rep. 691), 95
Ingalls V. St. Paul, M. & M. Ry.
Co. (39 Minn. 479; 40 N. W.
Rep. 524), 648
Insurance Co. v. Tweed (7 Wall.
44), 804
Insurance Co. of N. A. v. Fidelity,
etc., Co. (125 Pa. St. 523; 16
Atl. Rep. 791; 2 L. R. A. 586),
827
Iron Duke Mine v. Braasted (112
Mich. 79; 70 N. W. Rep. 414),
278
Irwin V. Covode (24 Pa. St. 163),
287, 294
Island Coal Co. v. Combs (152 Ind.
379; 53 N. E. Rep. 452), 146,
151, 167, 185, 192, 199, 215, 218
Ives V. Wilder (114 la. 476; 87
N. W. Rep. 408; 54 L. R. A.
854), 785
Jackson v. Caton (5 Ves. 687),
315
Jackson v. Groat (7 Cow. 285),
247
Jackson v. O'Hara (183 Pa. St.
233; 38 Atl. Rep. 624), 93, 237,
265, 267
Jackson v. Standard Oil Co. (98 Ga.
749; 26 S. E. Rep. 60). 780
Jackson Co. Horse Ry. Co. v. Inter-
state Rapid Transit R. R. Co.
(24 Fed. Rep. 306), 480, 488,
500
Jacksonville, etc., Co. v. Jackson-
ville (36 Fla. 229; 18 So. Rep.
667; 30 L. R. A. 540), 559, 562
Jamaica Pond, etc., Co. v. Brook-
line (121 Mass.- 5), 542
Jamestown, etc., Co. v. Egbert (152
Pa. St. 53; 25 Atl. Rep. 151),
262
Jamieson v. Indiana Nat. Gas, etc.,
Co. (128 Ind. 555; 28 N. E. Rep.
76; 12 L. R. A. 652; 34 Am. and
Eng. Corp. Cas. 1; 3 Inter St.
Com. Rep. 613), 53, 383, 384,
388, 412, 414, 415, 420, 426
Janes v. Emery Oil Co. ( 1 Penny.
(Pa.) 242), 122
Janeway v. Duluth (65 Minn.
292; 68 N. W. Rep. 243), 498,
567
Jarechi v. Philharmonic Society
(79 Pa. St. 403; 21 Am. Rep.
78), 632
Jarechi v. Philharmonic Society
Ohio Cir. Dec. 5; 14 Ohio C. C.
400), 355
Jashanosky v. Volrath (59 Ohio St.
540; 53 N. E. Rep. 46; 69 Am.
St. Rep. 786), 226
Jefferys v. Smith ( 1 J. & W. 298),
338, 372, 377
Jegon v. Vivian (L. R. 6 Ch. App.
742; 40 L. J. Ch. 389; 19 W. R.
365), 48
Jenkins v. Columbia, etc.. Co. (13
Wash. 502; 43 Pac. Rep. 328),
577, 607
Jennings v. Alexander (1 Hilt. (N.
Y.) 154), 246
Jennings v. Broughton (5 DeG. M.
& G. 126; 17 Beav. 234; 22 L. J.
Ch. 585; 17 Jur. 305; 1 W. R.
441), 319
Jennings Bros. & Co. v. Beale (158
Pa. St. 283; 27 Atl. Rep. 948 j,
63, 105, 106
Jersey City, etc., Co. v. Passaic
(N. J. L.) (52 Atl. Rep. 242),
538
TABLE OF CASES.
Ixvii
(References are to pages.)
Jersey City Gas Co. v. Dwight, (29
N. J. Eq. 242), 421, 480, 491,
522, 534, 563, 575
Job V. Potton (L. R. 20 Eq. 84; 44
L. J. Ch. 262; 23 W. R. 588; 32
L. T. 110), 297, 301
Johnson v. Belmar { 58 1^. J. 'Eq.
354; 44 Atl. Rep. 166), 610
Johnson v. Sherman (15 Cal. 287;
76 Am. Dec. 481), 233
Johnson v. Wiseman (4 Met. (Ky.)
357; 83 Am. Dec. 475), 634
Johnston, In re (137 Cal. 115; 69
Pac. Rep. 974), 491, 501, 514,
518, 531, 533
Johnston v. Cowan (59 Pa. St.
• 275), 162
Johnston v. People's Natural Gas
Co. (7 Atl. Rep. (Pa.) 167; 5
Cent. Rep. 564; 15 Morr. Min.
Rep. 556), 383, 388
Johnston v. Price (172 Pa. St. 427;
33 Atl. Rep. 688; 37 W. N. C.
387; 26 Pittsb. L. J. (X. S.)
357), 304, 306
Johnston Iron Co. v. Cambria Iron
Co. (32 Pa. St. 241), 80, 106
Johnston, etc., R. R. Co. v. Egbert
(152 Pa. St. 53; 25 Atl. Rep.
151), 131, 132, 187
Johnston v. People's, etc., Gas Co.
(5 Cent. Rep. (Pa.) 564), 491,
501, 530
Johnston v. Standard Mining Co.
(148 U. S. 360; 13 Sup. Ct. Rep.
585), 92
Johnston v. Toronto Consumers'
Gas Co. ([1898] App. Cas. 447;
78 L. T. 270; 67 L. J. P. C. 33),
587, 605
Joliet Gaslight Co. v. Sutherland
(68 111. App. 230), 522. 527, 539
Jonas V. Cincinnati (18 Ohio 318),
469
Jones V. Barnes (45 Mo. App. 590),
245
Jones V. Carter (15 M. & W. 718),
199
Jones V. Clark (42 Cal. 180), 342,
347, 348, 349, 351
Jones V. Forest Oil Co. (194 Pa.
St. 379; 44 Atl. Rep. 1074; 30
Pittsb. L. J. (N. S.) 58; 48 L. R.
A. 748), 34, 44, 47
Jones V. Howard Ins. Co. (117 N.
Y. 103; 22 N. E. Rep. 518; 10
N. Y. St. Rep. 120), 798, 799,
801
Jones V. Rochester Gas, etc., Co.
(7 N. Y. App. Div. 474; 39 N. Y.
Supp. 1110), 627
Jones V. Rochester Gas, etc., Co.
(7 N. Y. App. Div. 465; 39 N. Y.
Supp. 1105, affirmed 158 N. Y.
678; 52 N. E. Rep. 1124), 577,
578, 582, 588, 594
Jones V. Rochester, etc., Co. (168
N. Y. 65; 60 N. E. Rep. 1044, re-
versing 64 N. Y. Supp. 1138),
588
Jones V. Strong (5 Kulp. (Pa.) 7),
278, 288, 291
Jones V. Western, etc., Gas Co. ( 146
Pa. St. 204; 23 Atl. Rep. 386; 29
W. N. C. 266), 183
Jones V. Wood (2 Ohio Dec. 75; 9
Ohio Cir. Rep. 560; 6 Ohio Cir.
Dec. 538, reversing 1 Ohio N. P.
155), 840
Jordan v. Myers (126 Cal. 565; 58
Pac. Rep. 1061), 354
Jordeson v. Sutton, etc., Co. (67 L.
J. Ch. 666; [1898] 2 Ch. 614; 79
L. T. 478 ; 47 W. R. 222 ; 63 J. P.
137, affirmed 68 L. J. 457; [1899]
2 Ch. 217; 80 L. T. 815; 63 J.
P. 692), 576
Judge V. Braswell (13 Bush. 69; 26
Am. Rep. 185), 338. 348. 349
Judson V. Giant Powder Co. (107
Cal. 549; 40 Pac. Rep. 1020; 29
L. R. A. 718), 703, 778, 779
Ju^genson v. Diller (114 Cal. 491;
46 Pac. Rep, 610), 353, 354
Ixviii
TABLE OF CASES.
(References are to pages.)
K
Kahn v. Central Smelting Co. (102
U. S. 641), 340, 341
Kahn v. Old Telegraph Mining Co.
(2 Utah 13), 296
Kalamazoo v. Kalamazoo, etc., Co.
(124 Mich. 74; 82 N. W. Rep.
811), 525, 531
Kamphouse v. Gaffner (73 111.
453), 79, 82
Keating, etc., Co. v. Marshall, etc.,
Co. (74 Tex. 605; 12 So. W. Rep.
489), 649
Keeler v. Keeler (31 N. J. Eq. 181,
191), 634, 636
Keeler v. Trueman (15 Colo. 143;
25 Pac. Rep. 311), 78
Keenan v. Dubuque, etc., Ins. Co.
(13 la. 375), 825
Keihl V. South Bend (76 Fed. Rep.
921; 44 U. S. App. 687; 22 C. C.
A. 618; 36 L. R. A. 228), 446,
450, 451, 475
Keir v. Peterson (41 Pa. St. 357),
33, 43
Keiser v. Mahony Gas Co. (143 Pa.
St. 276; 22 Atl. Rep. 759), 666
Kelly V. Donahoe (2 Mete. (Ky.)
482), 333
Kelley v. Ohio Oil Co. (57 Ohio
St. 317; 49 N. E. Rep. 399; 39 L.
R. A. 765; 63 Am. St. Rep. 721,
affirming 6 Ohio C. Ct. Dec. 470;
9 Ohio C. C. 511; 34 Wkly. L.
Bull. 185; 40 Wkly L. Bull. 338;
6 Ohio Dec. 186), 32, 43, 44, 51,
119
Kelly V. Worcester, etc., Ins. Co.
(97 Mass. 284; 5 Benn. Fire Ins.
Co. 122), 802
Kcmble v. Kemble (44 N. J. Eq.
454; 11 Atl. Rep. 733), 298
Kemble Coal & Iron Co. v. Scott
(90 Pa. St. 3,32), 162.
Kennard v. Standard Oil Co. (89
Ky. 468; 12 S. W. Rep. 937; 7 L.
R. A. 451), 661, 662
Kennedy v. Crawford (138 Pa. St.
561; 27 W. N. C. 306; 21 Atl.
Rep. 191), 155, 166, 168, 207,
210, 216, 346
Kenrick v. Smick (T. W. & S. 41),
180
Kenton Ins. Co. v. Downs (90 Ky.
236; 13 S. W. Rep. 882; 12 Ky.
L. Rep. 115), 810, 822
Kenton Gas, etc., Co. v. Dorney
(17 Ohio C. Ct. Rep. 101; 9 Ohio
Cir. Dec. 604), 68, 191, 200, 289,
293
Kenton Gas, etc., Co. v. Orwick (21
Ohio Cir. Ct. Rep. 274; 11 Ohio
C. D. 786), 128
Kentucky Heating Co. v. Louisville'
Gas Co. (63 S. W. Rep. (Ky.)
651; 23 Ky. L. Rep. 730), 529
Keogh V. Pittston, etc., Co. (5
Lack. Leg. N. 242), 515
Kerns v. Tanner (66 Pa. St. 297),
215, 216
Kerlin, etc., Co. v. Toledo (20 Ohio
C. C. Rep. 603; 8 Ohio N. P. 62),
67, 76, 571
Kerr v. Bellefontaine (59 Ohio St.
446; 52 N. E. Rep. 1024), 571
Kettening Gas Co. v. Leach (24 Gas
J. 503), 845
Keyes v. Pittsburgh, etc., Co. (58
Ohio St. 246; 50 N. E. Rep. 911;
41 L. R. A. 681), 280
Keystone Mining Co. v. Gallagher
(5 Colo. 23), 355, 356
Kieble v. Philadelphia (105 Pa. St.
41). 686, 707, 744. 749, 768
Kiddle v. Brown (20 Ala. 412; 56
Am. Dec. 202), 82
Kier v. Peterson (41 Pa. St. 357),
136. 277, 285, 287
Kilbridge v. Carbon, etc., Co. (201
Pac. Rep. 5,52; 51 Atl. Rep. 347),
777
Kile V. Giobner (114 Pa. St. 381;
7 Atl. Rep. 154), 638
TABLE OF CASES.
Ixix
(References arc to pages.)
Kille V. Reading Iron Works (141
Pa. St. 440; 21 Atl. Rep. 666),
319
Kinimel v. Burfeind (2 Daly 155),
741
Kincaid v. Indianapolis, etc., Co.
(124 Ind. 577; 24 N. E. Rep.
1066; 8 L. R. A. 602), 549, 551,
552
Kincaid v. McGowan (88 Ky. 91;
4 S. W. Rep. 802), 77
King V. Edwards (32 111. App.
558), 190
King V Jones (3 Camp. 230), 514
King V. Oxford, etc.. Society (51
L. T. 94), 661
King V. Philadelphia Co. (154 Pa.
St. 160; 26 Atl. Rep. 308; 21 L.
R. A. 141; 41 Am. and Eng.
Corp. Cas. 221), 537
Kings County Fire Ins. Co. v.
Swigert (11 111. App. 590), 800,
825
Kingsley v. Hillside, etc., Co. ( 144
Pa. St. 613; 23 Atl. Rep. 250),
62, 78, 323, 326
Kingsley v. McFarland (82 Me.
231; 19 Atl. Rep. 442), 648
Kinnaird v. Standard Oil Co. (89
Ky. 468; 12 S. W. Rep. 937; 7
L. R. A. 451). 651
Kinnaman v. Pyle (44 Ind. 275),
281
Kirby v. Delaware, etc., R. R. Co.
(20 N. Y. App. Div. 473; 46 N.
Y. Supp. 777), 701
Kuchli V. Minnesota, etc., Co. ( 58
Minn. 418; 59 N. W. Rep. 1088),
469
Kirk V. Mattier (140 Mo. 23; 41
S. W. Rep. 252), 75, 140
Kirchman v. Lapp (19 N. Y. Supp.
831). 632
Kirkwood v. Merameo Highlands
Co. (94 Mo. App. 637; 68 S^W.
Rep. 761), 488
Kitchen v. Smith (101 Pa. St. 452),
73, 74, 81, 136, 137
Kleppner v. Lemon ( 176 Pa. St.
502; 35 Atl. Rep. 109; 29 Pittsb.
L. J. (N. S.) 21, 346; 38 W. N.
C. 388, affirmed 198 Pa. St. 430;
48 Atl. Rep. 483), 107, 113, 114,
118, 121, 127, 128, 129, 148, 207,
274
Knarr v. Conaway (42 Ind. 260),
172
Knight V. Indiana, etc., Co. (47
Ind. 105), 73
Knight V. Mfgs. Natural Gas
Co. (23 Atl. Rep. (Pa.) 164; 29
W. N. C. 261), 108
Knotts V. McGregor (47 W. Va.
566; 35 S. E. Rep. 899), 107
Knupp V. Bight (186 Pa. St. 181;
40 Atl. Rep. 414), 244
Kock's Appeal (93 Pa. St. 434),
114
Kock V. Maryland Coal Co. (68
Md. 125; 11 Atl. Rep. 700), 48
Koelsch V. Philadelphia Co. (152
Pa. St. 355; 25 Atl. Rep. 522; 18
L. R. A. 759; 34 Am. St. Rep.
653). 632, 686, 687, 688, 697,
707, 717, 731, 768
Koen V. Bartlett (41 W. Va. 559;
23 S. E. Rep. 664; 31 L. R. A.
128), 230. 288, 289, 292, 294
Kohler Brick Co. v. N. W. Ohio,
etc., Gas Co. (11 Ohio Cir. Ct.
319; 5 Ohio Cir. Dec. 379), 745
Kohlmann v. Selvage (34 N. Y.
App. Div. 380; 54 N. Y. S^ipp.
230). 802
Kokomo, etc.. Gas Co. v. Albright
(18 Ind. App. 151; 47 N. E. Rep.
682), 253, 590
Kokomo Natural Gas Co. v. Al-
bright (18 Ind. App. 151; 47 N.
E. Rep. 682). 100, 107
Koplan V. Boston Gaslight Co. (177
Mass. 15: 58 N. E. Rep. 183),
692, 706, 714, 715, 732, 733, 756,
757, 761
Ixx
TABLE OF CASES.
(References are to pages.)
Kosten v. Interstate, etc., Co. (99
Wis. 73; 74 N. W. Rep. 534; 40
L. R. A. 651), 830
Kruger v. Western, etc., Ins. Co.
(72 Cal. 91; 13 Pac. Rep. 156),
822
Krueger v. Wisconsin Tel. Co. (106
Wis. 96; 81 N. W. Rep. 1041;
50 L. R. A. 298), 549
Kreutz v. McKnight (53 Pa. St.
319), 190, 220
Krzywoszynski v. Consolidated Gas
Co. (4 N. Y. App. Div. 161; 38
N. Y. Supp. 929), 690, 768
Kunkle v. People's Gas Co. (165
Pa. St. 133; 30 Atl. Rep. 719; 33
L. R. A. 847), 101, 283
Kyffin V. East London W. W. Co.
(66 Gas J. 243), 588, 600
La Campagine pour L'Eclairage
au Gas v. La Campagine, etc. (25
Can. S. C. 168), 492
Lackland v. North. Mo. R. R. Co.
(31 Mo. 180), 563
Lacustrine, etc., Co. v. Lake Guano,
etc., Co. (82 N. Y. 476), 77
Ladd V. Boston (170 Mass. 332;
49 N. E. Rep. 627; 40 L. R. A.
171), 618, 633
Ladd V. Jones (61 111. App. 584),
557
Ladley v. Creighton (70 Pa. St.
490), 369
La Force v. Williams, etc., Ins. Co.
(43 Mo. App. 518), 796, 808,
822
Lake Charles Ice, etc., Co. v. Lake
Charles (106 La. 65; 30 So. Rep.
289). 447, 457
Lake Erie, etc., Co. v. Patterson
(184 Pa. St. 364; 39 Atl. Rep.
68), 169
Lake Erie, etc., R. R. Co. v. Lew-
der (7 Ind. App. 537; 34 N. E.
Rep. 447, 747), 400
Lake Superior Ship Canal, etc., Co.
V. McCann (86 Mich. 106; 48 N.
W. Rep. 692), 639, 641
Lamar Water, etc., Co. v. Lamar
(140 Mo. 145; 39 S. W. Rep.
768), 450, 474
Lambie v. Sloss, etc., Co. (118 Ala.
427; 24 So. Rep. 108), 62
Lancaster Gas Co., In re (5 Pa.
Dist. Rep. 244), 481, 483
Lancaster v. DeTrafford (31 L. J.
Ch. 554; 7 L. T. 40; 10 W. R.
474; 8 Jur. (N. S.) 873), 313
Lancaster Fire Ins. Co. v. Lenheim
(89 Pa. St. 497; 33 Am. Rep.
778), 795
Lancaster Gas & Fuel Co. v. Lan-
caster Gas Co. (17 Pa. Co. Ct.
Rep. 453), 480, 483
Lancaster Hotel Co. v. Lancaster
(7 Pa. Super. Ct. 159; 42 W. N.
C. 164), — .
Landell v. Hamilton (175 Pa. St.
327; 34 Atl. Rep. 663), 108
Lane v. Gordon (18 N. Y. App. Div.
438; 46 N. Y. Supp. 57), 208, 216
Langabough v. Anderson (22 Ohio
Cir. Ct. Rep. 178; 12 Ohio C. D.
341), 777
Langdon v. New York, etc., Ins. Co.
(1 Hall (N. Y.) 226), 812, 815
Langmade v. Weaver (65 O. S. 17;
60 N. E. Rep. 992), 100
Langston v. Bates (84 111. 524; 25
Am. Rep. 466), 315
Lanigan v. New York, etc., Co. (71
N. Y. 29), 704, 747. 750
Lanman v. Young (31 Pa. St. 306),
176
Lannen v. Albany Gaslight Co. (46
Barb. 264; 44 N. Y. 459), 708,
728, 732, 751, 764
Lanning v. Osborne (76 Fed. Rep.
319, affirmed Osborne v. San Di-
ego, etc., Co., 178 U. S. 22; 20
Sup. Ct. Rep. 860), 430, 433
Lanning v. Osborne (82 Fed. Rep.
575), 431
TABLE OF CASES.
Ixxi
(References are lo pages.)
Lattimore v. Harsen ( 14 Johns.
330), 274
Lawrence v. Hennessy (165 Mo.
659; 65 S. W. Rep. 717), 508
Lawrence v. Kemp (1 Duer 363),
639, 645
Lawrence v. Methuen (166 Mass.
206; 44 N. E. Rep. 247), 463
Lawrence v. Robinson (4 Colo. 567),
338, 339, 346
Lawson v. Kirchener (50 W. Va.
344; 40 S. E. Rep. 344), 76, 270
Lawton v. Lawton (3 Atk. 13), 646
Lawton v. Salmon (1 H. B. 259),
646
Laycock v. Baton Rouge (35 La.
Ann. 475), 468
Laythoarp v. Bryant (2 Bing. N. C.
735; 5 L. J. C. P. 217; 3 Scott
238; 2 Hodges 25), 314
Lazarus' Est., In re ( 145 Pa. St. 1 ;
23 Atl. Rep. 372), 76, 78, 272
Leadville Water Co. v. Leadville
(22 Colo. 297; 45 Pac. Rep. 362),
433, 469, 599
Lean v. Boston (106 Mass. 450),
547
Leatherman v. Oliver (151 Pa. St.
646; 25 Atl. Rep. 309), 266, 267,
183, 184
Lebanon Gas Co. v. Lebanon Fuel,
etc., Co. (5 Pa. Dist. Rep. 529; 18
Pa. Co. Ct. Rep. 223). 52. 501,
530
Lebanon, etc.. Co. v. Leap (139 Ind.
443; 39 N. E. Rep. 57; 29 L. R.
A. 342), 555, 556, 693, 695, 730,
788
Le Claire v. Davenport (13 la.
210), 488
Lee V. Baumgardner (86 Va. 315;
10 S. E. Rep. 3), 63. 78
Lee V. Roundwood Colliery Co.
([1897] 1 Ch. 373; 66 L. J. Ch.
186; 75 L. T. 641; 45 W.^. 324),
227
Lee V. Troy, etc., Co. (98 N. Y.
115), 721, 742, 749, 768
Lee V. Vacuum Oil Co. (54 Hun
156; 7 N. Y. Sup. 426), 408, 666,
701, 730
Le Fevre v. Le Fevre (4 S. & R.
241), 82
Leftwich v. Neal (7 W. Va. 569),
281
Leggett V. ^Etna Ins. Co. (10 Rich.
L. 202), 812, 814
Lehigh, etc., Co. v. Wight (177 Pa.
St. 387; 35 Atl. Rep. 219), 273
Lehigh, etc., Co. v. Wilkesbarre, etc.,
Co. (8 Kulp. (Pa.) 540), 273
Lehigh Coal Co. v. Wright (7 Kulp.
(Pa.) 434; 15 Pa. Ct. Rep. 433),
76
Lehigh Zinc and Iron Co. v. Bam-
ford (150 U. S. 665; 14 Sup.
Ct. Rep. 219, affirming 33 Fed.
Rep. 677), 271
Lehigh Valley Coal Co. v. Jones (86
Pa. St. 432), 735, 751
Lemfers v. Henke (73 111. 405), 287,
298
Lennox v. Vandalia Coal Co. (66
Mo. App. 560; 158 Mo. 473; 59
S. W. Rep. 242), 267
Leport V. Mining Co. (3 N. J. L.
Jr. 280), 42, 370, 371
LeRoy, In re (23 N. Y. Misc. 53;
50 N. Y. Supp. 611), 567
Lester v. Hardesty ( 29 Md. 50 ) , 365
Lester v. Lester (28 Gratt. 737),
315
Letherman v. Oliver (151 Pa. St.
646; 31 W. N. C. 205; 25 Atl.
Rep. 309), 183, 184, 266. 267
Levering v. Langley (8 Minn. (Gil.
82) 107), 171. 242. 245
Levis Water Co., In re (11 Pa. Ct.
Rep. 178). 463. 483
Levis V. Newton ( 75 Fed. Rep. 884 ) ,
427
Levy V. Water Works Co. (38 La.
Ann. 29), 612, 619
Lewis V. Boston Gaslight Co. (1G5
Mass. 411; 43 N. E. Rep. 178),
714, 717
Ixxii
TABLE OF CASES.
(References are to pages.)
Lewis V. Brooks (8 Up. Can. Q. B.
576), 171, 242, 245
Lewisville Natural Gas Co. v. State
(135 Ind. 49; 34 N. E. Rep. 702;
21 L. R. A. 734; 43 Am. & Eng.
Corp. Cas. 483; [overruling Rushf-
ville V. Rushville Natural Gas
Co., 132 Ind. 575; 28 N. E. Rep.
853; 38 Am. & Eng. Corp. Cas.
276; 15 L. R. A. 321]), 421
Lewey v. H. C. Frick Co. (166 Pa.
St. 536; 31 Atl. Rep. 261; 28 L.
R. A. 283), 327
Lietch V. Atlantic, etc., Ins. Co. (66
N. Y. 100), 809
Liggett V. Shira (159 Pa. St. 350;
33 W. N. C. 553; 25 Atl. Rep.
218; 28 Atl. Rep. 218), 183, 187
Light Co. V. Gill (14 Pa. Co. Ct.
Rep. 6), 363, 635
Light and Fuel Co., In re (17 Pa.
Co. Ct. Rep. 113; 4 Pa. Dist.
Rep. 244), 480, 483
Light and Heat Co. v. Jackson (73
Miss. 598; 19 So. Rep. 771), 452,
460, 508
Lillibridge v. Lackawanna Coal Co.
(143 Pa. St. 293; 22 Atl. Rep.
1035), 76, 77, 329
Lima Gas Co. v. Lima (4 Ohio Cir.
Ct. Rep. 22 ; 22 Wkly. L. Bull.
272; 2 Ohio Cir. Dec. 396), 530
Linden Steel Co. v. Imperial Refin-
ing Co. (138 Pa. St. 10; 20 Atl.
Rep. 867, 869), 364
Lindsay v. Bridgewater Gas Co. (24
Pittsb. L. J. (N. S.) 276; 14 Pa.
Co. Ct. Rep. 181), 826
Line v. Stephenson (5 Bing. N. C.
■ 183; 7 L. J. C. P. 263; 7 Scott
69; 1 Arn. 385), 268
Lingeman v. Shirk (15 Ind. App.
432; 43 N. E. Rep. 33), 95
Linn v. Chambersburg ( 160 Pa. St.
511; 28 Atl. Rep. 842). 558
Lithgow V. Shook (39 Ohio Wkly.
L. Bull. 39), 94
Little Valerie, etc., Co. v. IngersoU
(14 Colo. App. 240; 59 Pac. Rep.
970), 359
Littlewood v. Equitable Gas Co. (8
Gas J. 541), 601"
Littman v. New York City (36 N.
Y. App. Div. 189; 55 N. Y. Supp.
383, affirmed 159 N. Y. 559; 54
N. E. Rep. 1093), 698, 722, 723
Liverpool, etc., Ins. Co. v. Gunther
(116 U. S. 113; 34 Fed. Rep. 501;
6 Sup. Ct. Rep. 306), 799, 802,
813
Livingston v. Rawyards (5 App.
Cas. 25; 42 L. T. 334; 28 W. R.
357), 49
Llynvi Coal Co. v. Brogden (L. R.
11 Eq. 181; 40 L. J. Ch. 46; 24
L. T. 612), 49
Lloyd V. Newell ([1895] 2 Ch. 744;
64 L. J. Ch. 744; 73 L. T. 154;
44 W. R. 43), 316
Lloyd V. Washington Gaslight Co.
(1 Mackey 331), 608
Loan V. Boston (106 Mass. 450),
787
Lockhart v. Rollins (2 Idaho 503;
21 Pac. Rep. 413), 224
Loeber v. Roberts ( 17 N. Y. Supp.
378), 701
Logan V. Payne (43 la. 524; 22 Am.
Rep. 261), 488
Logan V. Washington Co. (29 Pa.
St. 373), 77, 839
Logan Natural Gas, etc., Co. v.
Chillicothe (65 Ohio St. 186; 62
N. E. Rep. 122), 425, 428, 434,
452
Logansport v. Dikeman (116 Ind.
15; 17 N. E. Rep. 587), 457
Logansport, etc.. Gas Co. v. Peru
(89 Fed. Rep. 185), 431, 432,
433. 499
London, etc.. Ins. Co. v. Fischer
(92 Fed. Rep. 500, affirming 83
Fed. Rep. 807), 814, 815, 824
London v. Mitford (14 Ves. 58),
314
TABLE OF CASES.
Ixxiii
(References are to pages.)
London, etc., R. R. Co. v. Truman
(11 App. Cas. 45; 55 L. J. Cli.
354 ; 54 L. T. 250 ; .34 W. R. 657 ;
50 J. P. 388), 671
London Gaslight Co. v. Nicholls (2
C. & P. 365). 605
London Gaslight Co. v. Vestry of
Chelsea (8 C. B. (N. S.) 215; 9
Gas J. 292), 471, 606
Long V. Duluth (49 Minn. 280; 51
N. W. Rep. 913), 498, 508
Long V. Miller (4 C. P. Div. 450; 48
L. J. C. P. 596; 41 L. T. 306; 27
W. R. 720), 314
Long V. Wade (70 Me. 358), .366
Long Island Water Supply Co. v.
Brooklyn (166 U. S. 685; 17 Sup.
Ct. Rep. 718; 28 Chicago L. News
313, affirming 143 N. Y. 596; 38
N. E. Rep. 983), 491, 492, 565
Los Angeles v. Los Angeles City
Water Co. (177 U. S. 558; 20
Sup. Ct. Rep. 736; 124 Cal. 377),
425, 428, 429, 432, 459, 489, 527,
564
Losee v. Buchanan (51 N. Y. 476),
701
Louisiana State Board v. Standard
Oil Co. (107 La. Ann. — ; 31 So.
Rep. 1015), 418
Louisville v. Louisville Water Co.
(105 Ky. 754; 49 S. W. Rep.
766). 516
Louisville v. Wible (84 Ky. 290;
1 S. W. Rep. 605), 488
Louisville Gas Co. v. Citizens' Gas
Co. (115 U. S. 683; 6 Sup. Ct.
Rep. 265; 10 Am. & Eng. Corp.
Cas. 671 [reversing 81 Ky. 263; 1
Am. & Eng. Corp. Cas. 156] ) , 420,
422, 426. 494, .538
Louisville Gas Co. v. Dulaney (100
Ky 405; 38 S. W. Rep. 703; 36
L. R. A. 125; 6 Am. & Eng. Corp.
Cas. (N. S.) 241), 431, ^8, 594,
618, 625
Louisville Gas Co. v. Gutenkuntz
(82 Ky. 432), 685, 732, 740
Lowenstein v. Fidelity & Casualty
(88 Fed. Rep. 474, affirmed 97
Fed. Rep. 17), 830
Lowther v. Cavendish (1 Eden. 99),
646
Lowther Oil Co. v. Guflfey (43 S. E.
Rep. (W. Va.) 101), 71
Lowther Oil Co. v. Miller-Sibley Oil
Co. (44 S. E. Rep. (W. Va.)
433), 34, 42, 49, 70, 71, 151, 160,
168, 176
Loy v. Madison, etc.. Gas Co. ( 156
Ind. 332; 58 N. E. Rep. 844), 256
Luce V. Dorchester, etc., Ins. Co.
(105 Mass. 297), 809
Lulay V. Barnes (172 Pa. St. 331;
34 Atl. Rep. 53; 37 W. N. C.
409), 321
Lumsden's Case (L. R. 4 Ch. App.
31; 17 W. R. 65), 352
Lunsford v. La Motte Lead Co. (54
Mo. 426 ) , 83
Lushington v. Sewell (1 Simm.
435), 646
Luzerne Water Co. v. Toby Creek
Water Co. (148 Pa. St. 568; 24
Atl. Rep. 117), 482
Lyddal v. Clavering (Amb. 371),
279
Lykens Valley Coal Co. v. Dock (62
Pa. St. 232), 42, 226
Lyman v. Arnold (5 Mason 195),
333
Lyman v. Schwartz ( 13 Colo. App.
318; 57 Pac. Rep. 735), 345
Lynch v. Lynch (6 Irish L. R. 131),
110, 171. 242
Lynch v. Seymour (15 Can. Sup.
Ct. Rep. .341). 81
Lynch v. Versailles Fuel Gas Co.
(165 Pa. St. 518; 35 W. N. C.
5.58; 30 Atl. Rep. 984). 193, 215,
219, 271
Lynde v. Hough (27 Barb. 415),
247
Lynn's Appeal (31 Pa. St. 44), 287
Lyon V. Grorley (53 Pa. St. 261),
42
Ixxiv
TABLE OF CASES.
(References are to pages.)
Lyon V. Reed (13 M. & W. 285; 2
Piatt Leases 503), 110, 111, 171,
242
M
Macbride v. Weekes (22 Beav. 533;
2 Jur. (N. S.) 918; 28 L. T.
(0. S.) 135), 319
Mackin v. Portland Gas Co. (38
Ore. 120; 61 Pac. Rep. 1.34; 62
Pae. Rep. 20; 49 L. R. A. 596),
577, 607, 609
Madison v. Morristown, etc., Co.
(52 Atl. Rep. (N. J. Ch.) 1.58),
502, 515, 516
Maher v. Shull (11 Colo. App. 322;
52 Pae. Rep. 1115), 354
Maine v. Grand Trunk Ry. (142 U.
S. 217; 12 Sup. Ct. Rep. 121,
163), 837
Maitland v. C. L. & R. R. Co. (3
Ohio Leg. News 289), 758
Malcomson v. Wappoo Mills (85
Fed. Rep. 907), 75
Malone v. Big Flat, etc., Co. (76
Cal. 578; 18 Pac. Rep. 772), 355,
357, 362, 363
Malone v. Lancaster, etc., Co. (182
Pa. St. 309; 40 W. N. C. 434; 14
Lane. L. Rep. 321; 15 Nat. Corp.
Rep. 98; 37 Atl. Rep. 932), 501,
845
Malott V. Price (109 Ind. 22; 9 N.
E. Rep. 718), 630
Manganese Co. v. Trotter (29 N. J.
Eq. 561), 105
Manhattan Gaslight Co. v. Barker
(7 Robt. (N. Y.) 523), 549, 674
Manhattan Gaslight Co. v. Ely (39
Barb. 174), 605
Manhattan Gas Co. v. Flamme (12
N. Y. Wkly. Dig. 245), 623
Manufacturers' Gas and Oil Co. v.
Indiana, etc., Co. (156 Ind. 679;
.59 N. E. Rep. 169), 41^.
Manhattan Trust Co. v. Dayton
Natural Gas Co. (55 Fed. Rep.
181), 442, 475
Manhattan Trust Co. v. Dayton (59
Fed. Rep. 327; 8 C. C. A. 140; 16
U. S. App. 588), 426, 442, 453,
475, 508
Manly v. Howlett (55 Cal. 94), 315
Manning v. Frazier (96 111. 279),
76, 79, 272
Mansfield v. Blackburne (3 Scott
(N. S.) 820; 6 Bing. N. C. 427),
647
Manufacturers', etc., Co. v. Douglass
(130 Pa. St. 283; 18 Atl. Rep.
630), 101
Manufacturers' Gas and Oil Co. v.
Indiana, etc., Co. (155 Ind. 566;
58 N. E. Rep. 851), 33, 35, 44,
45, 47, 383, 384, 386, 388, 392,
393, 414
Manfacturers' Gas and Oil Co. v.
Indiana, etc., Co. (156 Ind. 679;
60 N. E. Rep. 1080), 47, 385, 388
Manville v. Parks (7 Colo. 128; 2
Pac. Rep. 212), 340, 344, 348
Maple V. John (42 W. Va. 30; 24
S. E. Rep. 608; 32 L. R. A. 800),
119, 120
Maril v. Connecticut Fire Ins. Co.
(95 Ga. 604; 23 S. E. Rep. 463;
30 L. R. A. 835), 809, 810, 812,
816, 817
Mark v. National Fire Ins. Co. (24
Hun 565, affirmed 91 N. Y. 663),
53, 800
Marlborough Gaslight Co. v. Neal
(166 Mass. 217; 44 N. E. Rep.
139), 527, 568
]\Iarlborough Gaslight Co. v. Neal
(166 Mass. 217; 44 N. E. Rep.
139), 460
Marniet v. Archibald (37 W. Va.
778; 17 S. E. Rep. 299), 100
Marquis of Bute v. Thompson ( 13
M. & W. 487; 14 L. J. Exch. 95),
79
Marriage, etc.. In re ([1896] 2 Ch.
663), 608
Marsh v. Butterworth (4 Mich.
575), 251
TABLE OF CASES,
Ixxv
(References are to pages.)
Marsh v. Chickering (101 N. Y.
396; 5 N. E. Rep. 56), 792
Marsh v. Holley (42 Conn. 453),
296
Marshall v. Forest Oil Co. ( 198 Pa.
St. 83; 47 Atl. Rep. 927), 189,
210
Marshall v. Mellon (179 Pa. St.
371; 36 Atl. Rep. 201; 27 Pittsb.
L. J. (N. S.) 214; 35 L. R. A.
816; 57 Am. St. Rep. 601), 51,
289, 293
Marshall v. Mellon (26 Pittsb. L. J.
(N. S.) 290; 17 Pa. Co. Ct. Rep.
366), 135
Marshall v. Welwood (38 N. J. L.
339), 701
Martin v. Porter (5 M. & W. 352;
2 H. & H. 70), 48
Martineau v. Steele (14 Wis. 272),
235
Marvin v. Brewster, etc., Co. (55 N.
Y. 538), 77, 329
Maryland Fire Ins. Co. v. Whiteford
(31 Md. 219), 814
Maryland Steel Co. v. Moorney (88
Md. 482; 42 Atl. Rep. 60; 42 L.
R. A. 482), 780
Mascott V. First, etc., Ins. Co. (69
Vt. 116; 37 Atl. Rep. 255), 819
Mascott V. Granite, etc., Ins. Co.
35 Atl. Rep. 75; 68 Vt. 253),
809, 810, 819
Mason v. Hill (3 B. & Ad. 304; 5
B. & Ad. 1 ; 2 N. & W. 747 ; 2 L.
J. K. B. 118), 675
Mason v. Ohio, etc., Co. ( 52 W. Va.
— ; 41 S. E. Rep. 418), 420, 426
Massachusetts National Bank v.
Shinn (18 N. Y. App. Div. 276;
46 N. Y. Supp. 329), 648
Massot V. Moses (3 S. C. fts), 78,
79, 105
Mather v. Frazer (2 Kay. & J. 536;
25 L. J. Ch. 361), 647
Mathews v. People's, etc.. Gas Co.
(179 Pa. St. 165; 39 W. N. C.
544; 27 Pittsb. L. J. (N. S.) 421;
36 Atl. Rep. 216), 140, 183, 184,
196, 197, 264, 268
Matson v. Farm Building Fire Ins.
Co. (73 N. Y. 310; 29 Am. Rep.
149, reversing 9 Hun 415), 807
Matthiesson, etc., Co. v. La Salle
(117 111. 411; 2 N. E. Rep. 406;
8 N. E. Rep. 81), 333
Mauderbach v. Bethany, etc.. Home
(109 Pa. St. 231; 2 Atl. Rep.
422), 229
Mauldin v. Grenville (33 S. C. 1; 11
S. E. Rep. 434; 8 L. R. A. 291),
562
Maxwell v. Brierly (10 Copp. L. D.
50), 32, 55
Maxwell v. Todd (112 N. C. '^77;
16 S. E. Rep. 926), 70, 146, 190,
191, 199, 215
May v. Hazlewood Oil Co. (152 Pa.
St. 518; 25 Atl. Rep. 564), 68,
150, 172, 213
May V. Thompson (20 Ch. Div. 705;
51 L. J. Ch. 917; 47 L. T. 295),
315
Maynell v. Surtees (3 Sm. & G.
101), 318
Mays v. Cincinnati ( 1 Ohio St.
268), 563
Mays V. Dwight (82 Pa. St. 462),
135, 142
McBce V. Loftis (1 Stroh. Eq. 90),
321
McBee v. Sampson (66 Fed. Rep.
416), 233
McCahan v. Wharton (121 Pa. St.
424; 15 Atl. Rep. 615), 156, 163
McCarnus v. Citizens' Gaslight Co.
(40 Barb. 380), 788
McCarty v. Mellon (5 Pa. Dist. Rep.
425), 192, 193, 195
McCIay v. Western Pennsylvania
Gas Co. (201 Pa. St. 197; 50 Atl.
Rep. C78), 123
McClean County Coal Co. v. Long
(81 111. 359), 48
Ixxvi
TABLE OF CASES.
(References are to pages.)
McClintock v. Dana (106 Pa. St.
386), 290
McClung V. North Bend, etc., Co.
(31 Wkly. L. Bull. 9; 9 Ohio Cir.
Ct. Rep. 259; 6 Ohio Cir. Dee.
243; 1 Ohio Dec. 247), 663, 665
McConnell v. Denver (35 Cal. 365),
342
McConnell v. Lawrence, etc., Gas
Co. (30 Pittsb. L. J. (N. S.)
346), 275
McCord V. Mining Co. (64 Cal. 134),
296, 301
McCord V. Oakland Quick Silver
Mining Co. (64 Cal. 134), 303
McCormick v. Sutton (97 Cal. 373;
32 Pae. Rep. 444), 335
McCune v. Norwich City Gas Co.
(30 Conn. 521; 79 Am. Dec. 278),
575
McDaniel v. Springfield W. W. Co.
(48 Mo. App. 273), 607
McDermott v. Burke (16 Cal. 580),
367
McDivitt V. Philadelphia Gas Co.
(160 Pa. St. 367; 28 Atl. Rep.
948 ) 525
McDonald, In re (16 Misc. (N. Y.)
304; 39 N. Y. Supp. 367), 585,
622
McDowell V. Hendrix (67 Ind 513),
161, 229, 233
McElhenny v. Hubert Oil Co. (61
Pa. St. 188), 310, 311
McElwain's Appeal (11 Atl. Rep.
(Pa.) 453), 64
McElwaine v. Brown (11 Atl. Rep.
(Pa.) 453), 359
McElwaine v. Hosey (135 Ind. 481;
35 N. E. Rep. 272), 357, 360
INIcFadden v. Los Angeles County
(74 Cal. 571; 16 Pac. Rep. 397),
432
MgFarland v. Peabody Ins. Co. (6
W. Va. 425), 806
McFarland v. St. Paul, etc., Ins.
Co. (46 Minn. 519; 49 N. W. Rep.
253), 807, 824
McFarlan v. Watson (3 N. Y. 286),
246
McGahan v. Indianapolis, etc.. Gas
Co. (140 Ind. 33,5; 37 N. E. Rep.
601; 29 L. R. A. 355; 49 Am.
St. Rep. 199), 690, 697, 705, 737
McGillivray v. Evans (27 Cal. 92),
299, 300
McGregor v. Camden (47 W. Va.
193; 34 S. E. Rep. 936), 662, 664,
668
McGregor v. Equitable Gas Co. (21
Atl. Rep. 13; 139 Pa. St. 230),
393, 396
McGuffie V. Carter (42 Mich. 497;
4 N. W. Rep. 211), 229
McGuire v. Wight (18 W. Va.
507), 278
Mclntyre v. Mclntyre Coal Co. ( 105
N. Y. 264; 11 N. E. Rep. 645),
114, 271
McKay v. Pennsylvania Water Co.
(6 Pa. Dist. Rep. 364; 27 Pittsb.
L. J. (N. S.) 406), 395
McKeage v. Hanover Fire Ins. Co.
(81 N. Y. 38; 37 Am. Rep. 471),
636
McKee v. Colwell (7 Pa. Super. Ct.
607), 188
McKelway v. Seymour (29 N. J. L.
321), 199
McKenna v. Bridge Water Co. (193
Pa. St. 333; 45 Atl. Rep. 52;
47 L. R. A. 790), 691, 724, 739
McKenzie v. Bismarck Water Co.
(6 N. D. 361; 71 N. W. Rep.
608), 381
McKinney v. Reader (7 Watts.
(Pa.) 123), 168
McKircker v. Hawley (16 Johns.
289), 366
McKnight v. Kreutz (51 Pa. St.
232), 176, 190, 200, 217
McKnight v. Natural Gas Co. (146
Pa. St. 185; 23 Atl. Rep. 164;
28 Am. St. Rep. 790), 114, 145,
160. 275
TABLE OF CASES.
Ixxvii
(References are to pages.)
McLaren v. Byrnes (80 Mich. 275;
45 N. W. Rep. 143), 357, 361
McLean v. Palmer (2 Kulp. (Pa.)
349), 632
McMillan v. Philadelphia Co. (159
Pa. St. 142; 28 Atl. Rep. 220),
84, 89, 174, 184, 392
McNally v. Connolly (70 Cal. 3;
11 Pac. Rep. 320), 320
McNeal, etc., Co. v. Rowland (111
N. C. 615; 16 S. E. Rep. 857; 20
L. R. A. 743), 363
McNeal Pipe, etc., Co. v. Woltman
(114 N. C. 178; 19 S. E. Rep.
109), 364
McNish V. Stone (152 Pa. St. 457;
23 Pittsb. L. J. (N. S.) 232), 68,
148, 166, 168
McQuire v. Wright (18 W. Va. 507),
644
McRea v. Central Nat. Bank (66 N.
Y. 489), 629
McShane v. Kenkle (18 Mont. 208;
44 Pac. Rep. 979; 33 L. R. A.
851), 335
Meadville Fuel Gas Co.'s Appeal (4
Atl. Rep. (Pa.) 733; 14 Am. and
Eng. Corp. Cas. 123, reversing 1
Pa. C. C. Rep. 448), 427, 483
Meagher v. Reed (14 Colo. 335; 24
Pac. Rep. 681; 9 L. R. A. 455),
345
Mears v. Humboldt Ins. Co. (92
Pa. St. 15; 37 Am. Rep. 647),
800
Mears v. Insurance Co. (92 Pa. St.
15; 37 Am. Rep. 647), 813, 817,
822
Mechanics', etc., Ins. Co. v. Floyd
(20 Ky. L. Rep. 1538; 49 S. VV.
Rep. 543), 815
Medex v. Gaslight & Coke Co. (15
Gas J. 75), 723, 764
Meeker v. Browning (9 Ohio C. D.
108; 17 Ohio C. C. 548), 12#, 253,
258, 262. 274
Meiers v. Metropolitan Gaslight Co.
(11 Daly 119), 588
Meistrell v. Reach (56 Mo. App.
243), 356
Mellon V. Allegheny Co. (3 Pa. Dist.
Ct. Rep. 422), 838
Melms V. Pabst Brewing Co. ( 104
Wis. 7; 79 N. W. Rep. 738), 291
Memphis v. Memphis Gayoso Co.
(9 Heisk. 531), 568
Memphis v. Memphis Water Co. (5
Heisk. 495), 479, 480
Memphis Gaslight Co. v. State (6
Coldw. 310; 98 Am. Dec. 452),
645, 832
Memphis Gayoso Gas Co. v. Wil-
liamson (9 Heisk. 314), 488, 490
Menneilley v. Employers', etc., Corp.
(148 N. Y. 596; 43 N. E. Rep.
54; 31 L. R. A. 686, affirming 25
N. Y. Supp. 230), 759, 829, 830
Merchants', etc., Ins. Co. v. Wash-
ington, etc., Ins. Co. (1 Handy
408), 808
Mercur v. State Lime, etc., Co. (171
Pa. St. 12; 32 Atl. Rep. 1126),
301
Meridian National Bank v. McConi-
ca (8 Ohio C. Ct. Rep. 442; 4
Ohio Cir. Dec. 106), 73, 342, 360
Merrifield v. Lombard (13 Allen
16), 653
Merrill v. Frame (4 Taunt. 329),
268
Merrimac River Savings Bank v.
Lowell (152 Mass. 556; 26 N. E.
Rep. 97; 10 L. R. A. 122), 591,
607
Merritt v. Judd (14 Cal. 60), 640
Mersey Docks & Harbor Board v.
Liverpool, etc., Co. (26 Gas J.
327), 734, 762
Metropolitan, etc., Assn. v. Froi-
land (161 111. 30; 43 N. E. Rep.
766, affirming 59 111. App. 522),
830
Metropolitan, etc., Managers v.
Hill (6 App. Cas. 193; 50 L. J. Q.
B. 353; 44 L. T. 653; 29 W. R.
617; 45 J. P. 664), 672
Ixxviii
TABLE OF CASES.
(References are to pages.)
Metropolitan Gas Co. v. Hyde Park
(27 111. App. 361, affirmed 130
111. 42; 22 N. E. Rep. 616), 522
Metropolitan Gaslight Co. v. Mayor
(4 N. Y. Wkly. Dig. 82). 472
Mettler v. Miller (129 111. 630; 22
N. E. Rep. 529), 281
Metzger v. Beaver Falls (178 Pa.
St. 1 ; 39 W. N. C. 108 ; 27 Pittsb.
L. J. (N. S.) 102; 35 Atl. Rep.
1134, overruling Lehigh Water
Co.'s Appeal, 102 Pa. St. 515),
482
Metzger v. Sehultz (16 Ind. App.
454; 43 N. E. Rep. 886; 45 N. E.
Rep. 619), 717, 719, 741
Mickle V. Douglas (75 la. 78; 39
N. W. Rep. 198), 221
Midland R. W. Co. v. Fisher (125
Ind. 19; 24 N. E. Rep. 756),
102
Middle, etc., Co. v. Oakbank Oil Co.
(18 Ct. Sess. Cas. 4th Series
788), .547
Miles V. Delaware, etc., Co. (140
Pa. St. 623; 21 Atl. Rep. 427),
839
Milford V. Milford Water Co. (124
Pa. 610; 17 Atl. Rep. 185), 475
Millandon v. New Orleans Ins. Co.
(4 La. Ann. 15; 3 Benn. Fire
Ins. Cas. 4), 804
Miller v. Balfour (138 Pa. St. 183;
22 Atl. Rep. 86), 68, 188, 277
Miller v. Butterfield (79 Cal. 62;
21 Pac. Rep. 543), 344
Miller v. Lapham (44 Vt. 434), 328
Miller v. Michel (13 Ind. App. 190;
41 N. E. Rep. 467), 268
Millett V. Davey (31 Beav. 470; 32
Leg. Ch. 122; 7 L. T. 551; 11 W.
R. 170; 9 Jur. (N. S.) 92), 372,
375, 376
Millington v. Griffiths (30 L. T. 65 ;
23 Gas J. 215), 651, 652
Millvale Borough, In re (162 Pa.
St. 374; 29 Atl. Rep. 641, 644),
482
Milnes v. Hudersfield (11 App. Cas.
511; 56 L. J. Q. B. 1; 55 L. T.
617; 34 W. R. 761; 50 J. P. 676,
Affirming L. R. 12; Q. B. Div.
443 ; and L. R. 10 Q. B. Div. 124 ) ,
616
Milwaukee Gaslight Co. v. Schooner
Gamecock (23 Wis. 144), 549,
696
Minshull v. Lloyd ( 2 M. & W. 459 ) ,
646
Minturn v. La Rue (23 How. 435),
498
Miser v. O'Shea (37 Ore. 231; 62
Pac. Rep. 491), 82
Mississinewa Mining Co. v. Patton
(129 Ind. 472; 28 N. E. Rep.
1113; 28 Am. St. Rep. 203), 53,
687, 699, 723
Missouri, etc., Co. v. Murphy ( 170
U. S. 78, affirming 130 Mo. 10; 31
S. W. Rep. 594), 444, 515
Mitchell V. Burwell (110 la. 10; 81
N. W. Rep. 193), 359, 363
Mitchell v. Negaunee (113 Mich.
359; 71 N. W. Rep. 646; 38 L.
R. A. 157), 559
Mitchell V. Potomac Ins. Co. (183
U. S. 42; 22 Sup. Ct. Rep. 22,
affirming 16 U. S. App. D. C.
241), 806
Mobile & Ohio R. R. Co. v. Davis
(130 111. 146; 22 N. E. Rep.
850), 512
Monfort v. Lanyon Zinc Co. (72
Pac. Rep. (Kan.) 784), 70, 74,
84, 92, 93, 113, 152, 155, 173, 193,
194, 195, 306
Monroe v. Armstrong (96 Pa. St.
307), 146, 166, 168, 198
Monroe v. Perkins (9 Pick. 298),
274
Montague v. Dent (10 Rich. 135;
67 Am. Dec. 572), 633
Montgomery v. Capital City Water
Co. (92 Ala. 361; 9 So. Rep. 339),
532, 533
TABLE OF CASES.
Ixxix
(References are to pages.)
Montgomery v. Fireman's Ins. Co.
(16 B. Mon. 427), 805
Montgomery Gas Co. v. Montgomery
(87 Ala. 245; So. Rep. 113; 4
L. R. A. 616), 480, 500, 503
Montjoy v. Pillow (64 Miss. 705;
2 So. Rep. 108), 488
Montooth V. Gamble (123 Pa. St.
240; 16 Atl. Rep. 594),. 641
Montpelier, etc., Co. v. Stephenson
(22 Ind. App. 175; 53 N. E. Rep.
444
Montreal Gas Co. v. Cadieux (11
Can. Q. B. 93), 608, 610
Montreal Gas Co. v. Cadieux (68 L.
J. P. C. 126; [1889] App. Cas.
589; 81 L. T. (N. S.) 274), 608
ilontreal v. Standard Light & Power
Co. ([1897] App. Cas. 527; 66 L.
J. P. C. 113; 77 L. T. 115), 517
Moody V. Alexander ( 145 Pa. St.
571; 23 Atl. Rep. 161), 332
iloon V. Pittsburg Plate Glass Co.
(24 Ind. App. 34; 56 N. E. Rep.
108), 156, 276
Moore's Appeal (4 Pa. Dist. Rep.
703), 840
Moore v. Jennings (47 W. Va. 181;
34 S. E. Rep. 793), 51, 126
Moore v. Miller (8 Pa. St. 272),
62, 74
Moore v. Protection Ins. Co. ( 29 Me.
97; 48 Am. Dec. 514), 812
Moore v. Rollins (45 Me. 493), 287
Moore v. Small (19 Pa. St. 461),
315
Moreland v. Frick Coke Co. (170
Pa. St. 33; 32 Atl. Rep. 634),
321
Morey v. Metropolitan Gaslight Co.
38 N. Y. Supr. Ct. 185 (6 J. & S.
185), 577, 590, 607, 610
Morgan v. Powell (9 M. & W. 672),
49
Morgan v. Yard (13 Pittsb. L. J.
(N. S.) 178; 12 W. N. C. 449),
229
Morganstern v. Thrift (66 Cal. 577;
6 Pac. Rep. 689), 350
Moritz V. Lovelle (77 Cal. 10; 18
Pac. Rep. 803 ) , 94
Morris v. Guffey (188 Pa. St. 534;
41 Atl. Rep. 731), 102
Morris v. Southworth (154 111. 118;
39 N". E. Rep. 1099), 701
Morristown v. East Tennes.see, etc.,
Co. (1L5 Fed. Rep. 304), 420,
502, 516, 522, 530
Morrow, Ex parte (1 Lowell's Dec.
386; 2 N. B. R. (2d ed.) 665),
638
Morrow v. Sawyer (82 Ga. 226; 8
S. E. Rep. 51), 229
Morse v. Buffalo, etc., Ins. Co. (30
Wis. 534; 11 Am. Rep. 587), 800
Morss V. Gleason (64 N. Y. 204),
341
Mose V. Hastings, etc., Co. (4 Tr.
& F. 324; 13 Gas J. 231), 707
Mosley v. Vermont, etc., Ins. Co.
(55 Vt. 142), 54
Mostyn v. Lancaster (23 Ch. Div.
583; 51 L. .J. Ch. 696; 46 L. T.
648; 48 L. T. 715; 31 W. R. 3,
686), 378, 380
Moule V. Garrett (L. R. 5 Exch.
132; 39 L. J. Exch. 69; 22 L. T.
343; 18 W. R. 697), 231, 235,
244
Mountjoy's Case (Godb. 18; 1 Amb.
307; 4 Leon. 147), 105
Moyers v. Tiley (32 Pa. St. 267),
197
Mudsill Mining Co. v. Watrous (61
Fed. Rep. 163; 9 C. C. A. 415),
174
Mueller v. Egg Harbor City (55 N.
J. L. 245; 26 Atl. Rep. 89), 513
Muhlenberg v. Henning (116 Pa.
St. 138; 9 Atl. Rep. 144). 68,
162
Municipal Chamber of Hamburg v.
Gas Co. (5 Gas J. 710), 549
Munroe v. Armstrong (96 Pa. St.
307), 179, 182
Ixxx
TABLE OF CASES.
(References are to pages.)
Munn V. Illinois (94 U. S. 113),
440, 618
Munn V. Stone ( 4 Cush. 146), 329
Murdock v. Chenango, etc., Ins. Co.
(2 N. Y. 210), 801
Murphy v. Hardee (12 Ohio Cir. Ct.
Dec. 837), 226
Murphy v. Stell (43 Tex. 123), 315
Murray v. Allard (100 Temi. 100;
43 S. W. Rep. 355; 39 L. R. A.
'249; 66 Am. St. Rep. 740), 32,
33, 51, 322, 330
Murray v. Gibson (21 111. App.
488), 553
Murray v. Haverty (70 111. 318),
247, 296, 297
Murray v. Heinze (17 Mont. 353;
42 Pac. Rep. 1057; 43 Pac. Rep.
713), 195
Murtland v. Callihan (2 Pa. Super.
Ct. Rep. 340; 38 W. N. C. 512),
304, 307, 353
Murzesheimer v. Continental Ins.
Co. (5 Jones & S. (N. Y.) 332),
524
Musgrove v. Bonser (5 Ore. 313;
20 Am. Rep. 737), 184
Musick V. Barney (49 Mo. 458),
104
Mutual Electric Light Co. v. Ash-
worth (118 Cal. 1; 50 Pac. Rep.
10), 533
Myers v. Hudson, etc., Co. (44 Atl.
Rep. (N. J.) 713, reversing 37
Atl. Rep. 618), 525
N
Napier v. Darlington (70 Pa. St.
64), 91
Narcross v. James (140 Mass. 188;
2 X. E. Rep. 946), 109
Nash V. Berkmeir (83 Ind. 536),
282
Nassau, etc., Co. v. Brooklyn (25
Hun 567), 832
Nation's Case (L. R. 3 Eq. 77; 36
L. J. Ch. 112; 15 L. T. 308; 15
W. R. 143), 352
National Bank v. North (160 Pa.
St. 303; 28 Atl. Rep. 394), 636
National Foundry, etc.. Works v.
Oconto Water Co. (52 Fed. Rep.
29), 363, 513, 522
National Meter Co. v. Poughkeepsie
(75 Fed. Rep. 405), 620
National Transit Co. v. Weston ( 121
Pa. St. 485; 15 Atl. Rep. 569),
277
National W'. W. Co. v. Kansas City
(28 Fed. Rep. 921), 542
National W. W. Co. v. Kansas City
(20 Mo. App. 237), 542
Natural Gas Co. v. Philadelphia
Co. (158 Pa. St. 317; 27 Atl. Rep.
951), 88, 120, 224, 263
Natural Gas Co. v. Pittsburg ( 1 Pa.
Co. Ct. Rep. 311), 527, 534
Natural Oil, etc., Co. v. Teel (67 S.
W. Rep. (Tex. Civ. App.) 45; 68
S. W. Rep. 979), 71, 93, 211
Neal V. Atlantic Refining Co. (4
Pa. Dist. Rep. 49), 779
Neale v. Neale (9 Wall. 1), 315
Nebraska City v. Nebraska, etc.,
Co. (9 Neb. 339; 2 N. W. Rep.
870), 446, 459, 464, 613, 837
Neel v. Neel (19 Pa. St. 323), 287,
288, 294
Neeley v. City of Henderson (55 S.
W. Rep. (Ky.) 554), 835
Negley v. Morgan (46 Pa. St. 281),
232
Nego V. Barber, etc., Co. (17 Mo.
App. 294), 63
Neill V. Lacy (110 Pa. St. 294; 1
Atl. Rep. 325), 840
Neill V. Shamburg (158 Pa. St.
263; 27 Atl. Rep. 992), 306, 342
Nelson v. Bridges (2 Beav. 239;
3 Jur. 1098), 318
Nelson v. Eachel (158 Pa. St. 372;
27 Atl. Rep. 1103), 193, 216
Nelson v. La Porte (33 Ind. 258),
471
Nelson v. O'Neal (1 Mont. 284),
654
TABT>E OF CASES.
Ixxxi
(References are to pages.)
Neumoyer v. Andreas (57 Pa. St.
446), 80
Nene Valley v. Dunkley (4 Ch. Div,
1), 314
Neosho City Water Co. v. Neosho
(136 Mo. 498; 38 S. W. Rep. 89),
452, 472, 508, 568
Nesbit V. Godfrey ( 155 Pa. St. 251 ;
25 Atl. Rep. 621 ) , 276
Nevada Sierra Oil Co. v. Home Oil
Co. (98 Fed. Rep. 673), 326, 335
New Albany W. W. v. Leonsville
(122 Fed. Rep. 776), 459
New Castle Water Co. v. West New
Castle Water Co. (6 Pa. Dist.
Rep. 10; 18 Pa. Co. Ct. 498), 483
New England, etc., Ins. Co. v. W^et-
more (32 111. 221), 801
New Gaslight Co. (7 Pa. Dist. Rep.
151; 1 Dauph. Co. Rep. 22), 483,
530
New Memphis Gas, etc., Co. v. Mem-
phis (72 Fed. Rep. 952), 426,
428, 430
New Orleans v. Clark (95 U. S.
644), 568
New Orleans v. Gaslight Co. (5 La.
Ann. 439), 674
New Orleans Gaslight Co. v. Hart
(40 La. Ann. 474; 4 So. Rep.
215; 8 Am. St. Rep. 844; 20 Am.
and Eng. Corp. Cas. 258), 426,
444, 473, 548
New Orleans, etc., Co. v. Louisiana,
etc., Co. (11 Fed. Rep. 277), 536
New Orleans Gas Co. v. Louisiana
Light Co. (115 U. S. 650; 10
Am. and Eng. Corp. Cas. 689; 6
Sup. Ct. Rep. 252), 420, 422, 426,
493, 577
New Orleans Gaslight Co. v. New
Orleans (42 La. Ann. 118; 7 So.
Rep. 559), 450
New Orleans, etc., Co. v. Paulding
12 Rob. (La.) 378), 577, 578,
607, 609 ^
New Orleans W. W. Co. v. Ernst
(32 Fed. Rep. 5), 493, 500
New Orleans Water Works v. Rivers
(115 U. S. 674; 6 Sup. Ct. Rep.
273), 493, 500
New Rochelle Water Co., In re (46
Hun 525), 388
New York v. Squire (145 U. S. 175),
444
New York, etc., Ins. Co. v. Lang-
don (6 Wend. 623), 812, 815
New York Central, etc., R. R. v.
Metropolitan Gaslight Co. (5 Hun
201), 577
New York, etc., Co. v. Metropolitan
Gaslight Co. (63 N. Y. 326; 5
Hun 201), 390
New York Gaslight Co. v. Mechan-
ics' Fire Ins. Co. (2 Hall. 108),
630
New York Life Ins. Co. v. Allison
(107 Fed. Rep. 179; 46 C. C. A.
229), 631, 636
New Y^ork Mail, etc., Co. v. Shea
(30 N. Y. App. Div. 266; 51 N.
Y. Supp. 503, reversing 49 N. Y.
Supp. 951), 518
New York Mutual Gaslight Co. v.
New York City (49 How. Pr.
227), 469
Newark v. Newark W. W. Co. (4
Ohio N. P. 341; 6 Ohio Dec. 518),
541
Newark, etc., Board v. Passaic (45
N. J. Eq. 393; 18 Atl. Rep. 106),
654
Newark Coal Co. v. Upson (40 Ohio
St. 17), 77
Newark Gas, etc., Co. v. Newark (8
Ohio S. & C. P. Dec. 418; 7
Ohio N. P. 76), 257. 424, 524
Newberryport Water Co. v. New-
berryport (168 Mass. 541; 47 N.
E. Rep. 533), 392
Newport v. Commonwealth (21 Ky.
L. Rep. 42; 50 S. W. Rep. 845;
51 S. W'. Rep. .343; 45 L. R. A.
518), 835
Newport v. Newport Light Co. (84
Ky. 166), 480, 489, 573
Ixxxii
TABLE OF CASES.
(Relerences are to pages.)
Newport v. Newport Light Co. ( 11
Ky. L. Rep. (Ky.) 840; 12 S. W.
Rep. 1040), 447, 489, 528
Newport Light Co. v. City of New-
port (14 Ky. L. Rep. 464; 20
S. W. Rep. 434), 835
Niagara Fire Ins. Co. v. De Graff
(12 Mich. 124), 815
Niagara Fire Ins. Co. v. Fidelity
(125 Pa. St. 516; 16 Atl. Rep.
791), 827
Nichols V. Brush, etc., Co. (53 Hun
137; 6 N. Y. Supp. 601), 747,
782
Nicholasville Water Co. v. Nicholas-
ville (18 Ky. L. Rep. (Ky.) 592;
36 S. W. Rep. 549; 38 S. W. Rep.
430), 464
Nigro V. Hatch (11 Pac. Rep.
(Ariz.) 177), 640
Niles W. W. Co. v. Niles (59 Mich.
311; 26 N. W. Rep. 525), 469
Nilson V. Goldstein (152 Pa. St.
493; 25 Atl. Rep. 493), 94
Nisbet V. Mitchell Innes (7 R. 575),
633
Nisbet V. Nash (52 Cal. 540), 342,
347
Noble V. Sylvester (42 Vt. 146), 42
Noblesville v. Noblesville Gas, etc.,
Co. (157 Ind. 162; 60 N. E. Rep.
1032), 421, 424, 425, 431, 577,
596, 597, 599
Noke's Case (4 Rep. 80b. Cro. Eliz.
674), 268
Nolan V. Lovelock (1 Mont. 224),
340, 344, 347, 348, 349
Normantown Gas Co. v. Pope (52
L. J. Q. B. 629; 32 W. R. 134;
49 L. T. 798), 547
North V. Percival ([1898] 2 Ch.
128; 67 L. J. Ch. 321; 78 L. T.
615; 46 W. R. 552), 316
North Springs Water Co. v. Tacoma
(21 Wash. 517; 58 Pac. Rep. 773;
47 L. R. A. 214), 496, 565
Northern, etc., Co. v. Crawford (24
Tex. Civ. App. 574; 59 S. W. Rep.
916), 810, 818
Northern Colorado, etc., Co. v. Rich-
ards (22 Colo.' 450; 45 Pac. Rep.
(423), 585, 594, 601
Northern Liberties v. Northern Lib-
erties Gas Co. (12 Pa. St. 318),
420, 427, 532, 545
Northern Pacific Ry. v. Walker (47
Fed. Rep. 681), 335
Northwestern Ohio, etc., Co. v.
Browning (15 Ohio Cir. Ct. Rep.
84; 8 Ohio C. D. 188), 150, 201,
220, 215
Northwestern Ohio, etc., Co. v. City
of Tiffin (59 Ohio St. 420; 54 N.
E. Rep. 77; 41 Wkly. L. Bull.
48), 88, 103. 152
Northwestern, etc., Co. v. Davis (9
Ohio C. Ct. Rep. 551; 38 Wkly.
L. Bull. 200; 40 Wkly. L. Bull.
251; 6 Ohio Cir. Dec. 529), 84
Northwestern, etc., Ins. Co. v. Ger-
mania Fire Ins. Co. (40 Wis.
446), 796, 826
Northwestern Ohio, etc., Co. v. Ul-
lery (67 N. E. Rep. (Ohio) 494),
103, 230
Norton v. Cooper (5 DeG. M. & G.
728; 25 L. J. Ch. 121; 23 L. T.
(0. S.) 125; 2 W. R. 362), 373,
375, 377
Norton v. Snyder (2 Hun 82), 329
Norwalk Gaslight Co. v. Norwalk
(63 Conn. 495; 28 Atl. Rep. 32),
545
Norwich Fire Ins. Society v. Stan-
dard Oil Co. (59 Fed. Rep. 984;
8 C. C. A. 433; 19 U. S. App.
460), 827
Norwi-'ih Gaslight Co. v. Norwich
City Gas Co. (25 Conn. 19), 446,
486, 537
Oak B >rbor Gas, Co. v. Murphy (7
Ohie Dec. 700), 157
TABLE OF CASES.
Ixxxiii
(References are to pages.)
Oak Ridge Coal Co. v. Rogers (108
Pa. St. 147), 43
Ober V. Schenck (23 Utah 614; 65
Pac. Rep. 1073), 228
Oconto Water Co. v. National Foun-
dry (59 Fed. Rep. 19; 7 C. C. A.
603), 363, 364, 508
O'Donnell v. Luskin (12 Mont. Co.
L. Rep. (Pa.) 109), 75
Offerman v. Starr (2 Pa. St. 394),
73
Ogden V. Jennings ( 62 X. Y. 526 ) ,
93
Ogden V. Hatry (145 Pa. St. 640;
23 Atl. Rep. 334), 183, 266, 267
Oglesbys v. Hughes (96 Va. 115; 30
S. E. Rep. 439), 99
Ohio, etc., Co. v. Fishburn (61 Ohio
St. 608; 56 N. E. Rep. 457), 775
Ohio Gas Fuel Co. v. Andrews (50
Ohio St. 695; 35 N. E. Rep.
1059; 29 L. R. A. 337), 556, 094
Ohio Iron Co. v. Auburn Iron Co.
(64 Minn. 404; 67 N. W. Rep.
221), 202
Ohio Oil Co. V. Geiest (30 Ind. App.
— ; 65 N. E. Rep. 534), 256
Ohio Oil Co. V. Harris ( 1 Ohio N. P.
132; 1 Ohio Dec. 157), 128, 147,
207
Ohio Oil Co. V. Hurlburt (14 Ohio
C. C. 144; 7 Ohio Dec. 321, revers-
ing 6 Ohio Dec. 305), 146, 148,
182, 191, 192
Ohio Oil Co. V. Indiana (177 U. S.
190; 20 Supr. Ct. Rep. 585), 33,
34, 39, 42, 44, 55, 417. 418
Ohio Oil Co. V. Kelley (9 Ohio C. C.
Rep. 511; 6 Ohio Cir. Dec. 470;
40 W^\j. L. Bull. 338; 3 Ohio
Dec. 186), 64, 127, 129
Ohio Oil Co. V. Lane (59 Ohio St.
307; 52 N. E. Rep. 791; 40 Wkly.
L. Bull. 404; 41 Wkly. L. Bull.
121), 252, 276
Ohio Oil Co. V. Toledo, etc., S). (4
Ohio C. Ct. Rep. 210; 2 Ohio Cir.
Dec. 505), 73
Ohio Valley Gas Co., In re (6 Pa.
Dist. Rep. 200; 27 Pittsb. L. J.
(N. S.) 321), 383, 390, 395
Oil City Gas Co. v. Robinson (99
Pa. St. 1; 13 Repr. 253), 718,
731, 747, 749
Oil City i'uel Supply Co. v. Boundy
(122 Pa. St. 449; 15 Atl. Rep.
865), 750
Oil Creek, etc.. R. R. Co. v. Keighron
(74 Pa. St. 316), 399
O'Keefe v. Kennedy (3 Cush. 325),
247
Old Town V. Dooley (81 111. 255),
333
Olive Land, etc., Co. v. Olmstead
(103 Fed. Rep. 568), 335
Oliver v. Goetz (125 Mo. 370; 28
S. W. Rep. 441), 220
Olmstead v. Morris Aqueduct (47
X. J. L. 311), 575
Omaha, etc., Co. v. Burns (49 Xeb.
229; 68 X. W. Rep. 492), 360
Omaha, etc., Co. v. Tabor ( 13 Colo.
41; 21 Pac. Rep. 925; 5 L. R. A.
236), 43, 79, 82, 293, 297, 305
Omaha Horse Ry. Co. v. Cable Tram-
way Co. (30 Fed. Rep. 324), 490,
528
Omaha Ry. Co. v. Granite Ins. Co.
63 Xeb. 514; 73 X. W. Rep.
950), 827
Omberg v. U. S., etc.. Association
(111 Ky. 303; 40 S. W. Rep.
909), 830
Omslaer v. Philadelphia Co. (31
Fed. Rep. 354; 18 Pittsb. L. J.
(X. S.) 4), 549, 696
O'Xeil V. Buffalo Fire Ins. Co. (3
X. Y. 122), 813
Ontario Natural Gas Co. v. Gosfiekl
(18 Ont. App. 626; 38 Am. and
Eng. Corp. Cas. 253), 32, 333
Ontario Xatural Gas Co. v. Smart
(19 Ont. Rep. 595), 32, 45
Opinion of the Justices (150 Mass.
592: 24 X. E. Rep. 1084; 8 L. R.
A. 487), 558
Ixxxiv
TABLE OF CASES.
(References are to pages.)
Oram's Estate (5 Kulp. (Pa.) 423),
278
Orient Ins. Co. v. Leonard (120 Fed.
Rep. 808), 805
Orth V. West & East Oil Co. (159
Pa. St. 388; 28 Atl. Rep. 180),
360
Osborne v. San Diego, etc., Co. ( 178
U. S. 22; 20 Sup. Ct. Rep. 860,
affirming 76 Fed. Rep. 319). 428
Osgood V. Abbott (58 Me. 73), 199
Oskaloosa Water Co. v. Board (84
la. 407; 51 N. W. Rep. 18), 833
Otersbach v. Philadelphia (161 Pa.
St. Ill; 28 Atl. Rep. 991), 709,
712, 722, 737, 749
Ott V. Sprague (27 Kan. 620). 284
Ottawa Gaslight Co. v. Graham (28
111. 73; 39 111. 598; 35 111. 346),
651, 653, 664, 673, 758
Ottawa Gaslight Co. v. Thompson
(39 III. 598), 664
Otto Township v. Wolf (106 Pa. St.
608), 789
Ould V. Richmond (23 Gratt. 464;
14 Am. Rep. 139), 563
Owensboro Gaslight Co. v. Hilde-
brand (19 Ky. L. Rep. 983; 42
S. W. Rep. 351), 577, 579, 601
Owings V. Emery (6 Gill. 260), 285
Oxenden v. Compton ( 2 Ves. 69 ) ,
279
Packer v. Noble (103 Pa. St. 188),
211
Packham v. German Fire Ins. Co.
(91 Md. 515; 46 Atl. Rep. 1066;
50 L. R. A. 828), 827
Page V. Culver (55 Mo. App. 606),
229
Paine v. Griffiths (86 Fed. Rep. 452;
58 U. S. App. 38; 30 C. C. A.
182), 69, 168
Palestine Water, etc., Co. v. Pales-
tine (91 Tex. 540; 44 S. W. Rep.
814), 520, 522, 531, 539, 540
Palmer v. Edwards (Doug. 187),
246
Palmer v. Larchmont, etc., Co. (su-
pra), 548
Palmer v. Truby (136 Pa. St. 556;
20 Atl. Rep. 516), 52, 140, 198,
220
Palmer v. Uncas Mining Co. ( 70
Cal. 014; 11 Pac. Rep. 666), 357
Palmer Oil & Gas Co. v. Parish (6
Kan. 611; 59 Pac. Rep. 640),
284
Paola Gas Co. v. Paola Glass Co.
(50 Kan. 614; 44 Pac. Rep. 621),
591
Parfitt V. Ferguson (159 N. Y.
Ill; 53 N. E. Rep. 707, affirming
38 N. Y. Supp. 466 ; 3 N. \'. App.
Div. 176), 457, 492
Parfit V. Furguson (38 N. Y. Supp.
466; 3 N. Y. App. Div. 176; 73
N. Y'. St. Rep. 621, affirmed 159
N. Y. Ill; 53 N. E. 707). 454,
510, 542
Paris V. Norway Water Co. (85 Me.
330; 27 Atl. Rep. 143), 833
Parish Fork Oil Co. v. Bridgewater
Gas Co. (51 W. Va. 583; 42 S. E.
Rep. 655), 79, 98, 114, 129, 145,
170, 172, 182, 197, 198. 200. 206,
207, 210, 215, 217
Park Comrs. v. Common Council (28
Mich. 228), 489, 564
Parker Land & Oil Co. v. Reddick
(18 Ind. App. 616; 47 N. E. Rep.
848), 355, 356, 629, 644
Parkersburg Gas Co. v. Parkers-
burg ( 30 W. Va. 435 ; 4 S. E. Rep.
650), 480, 488, 489, 528
Parkin v. Wirksworth Gas Co. (26
Gas J. 946), 720, 749
Parlin, etc., Co. v. Finfrouck (65
111. App. 174), 759
Parry v. Croydon Gas Co. (15 C. B.
(N. S.) 568; 11 C. B. (N. S. )
578; 10 Jur. (N. S.) 172; 9 L. T.
(N. S.) 694; 12 W. R. 212), 652,
672, 676
TABLE OF CASES.
Ixxxv
(References are to pages.)
Parry v. Lmith (L. R. 4 C. P. 325;
33 Gas J. 899), 682, 747, 755
Parsell v. Strvker (41 X. Y. 480),
328
Parsons v. District of Columbia
(170 U. S. 45; 18 Sup. Ct. Rep.
521). 470
Patterson v. Gaslight & Coke Co.
([1896] 2 Ch. 476; 65 L. J. Ch.
(N. S.) 709; 74 L. T. Rep. 640),
608
Patterson v. Hausbeck (8 Pa. Super.
Ct. Rep. 36), 221
Patterson v. Kentucky (11 Bush.
311; 21 Amer. Rep. 220), 418
Patterson v. Kentucky (97 U. fe'.
501), 418
Patterson v. People's Natural Gas
Co. (172 Pa. St. 554; 26 Pittsb.
L. J. (N. S.) 260; 37 W. N. C.
422; 33 Atl. Pep. 575), 392, 393
Patterson Gaslight Co. v. Brady
(27 N. J. L. 245; 72 Am. Dec.
360), 575
Patton V. Axley (5 Jones L. (N. C.)
440), 71, 74
Patrick v, Weston (22 Colo. 45;
43 Pac. Rep. 446), 351
Paul V. Cragnas (25 Nev. 293; 59
Pac. Rep. 857; 60 Pac. Rep. 983;
47 L. R. A. 540), 79
Paul V. Travelers' Ins. Co. (112 N.
Y. 472; 20 N. E. Rep. 347, af-
firming 45 Hun 313), 828, 830
Pearce v. Bridgewater Gas Co. (28
Pittsb. L. J. (N. S.) 171), 257
Pearce v. Gardner ([1897] 1 Q. B.
688; 66 L. J. Q. B. 457; 76 L. T.
441; 45 W. R. 518), 314
Pearcy v. Henley (82 Ind. 129),
282
Pearson v. Phoenix Gas Co. (12 Gas
J. 69), 577, 607
Peatman v. Centreville, etc., Co.
(105 la. 1; 74 N. W. Rep. #69),
361
Peck V. Trinsmaran Co. (2 Ch. Div.
115; 24 W. R. 361), 372, 377
Peerrin v. Lepper (34 Mich. 292),
229
Peers v. Consolidated Coal Co. (59
111. App. 595), 257
Pelton V. Minah, etc., Co. (11 Mont.
281; 28 Pac. Rep. 310), 359
Pendergast v. Turton (13 L. J. Ch.
268; 5 Jur. 1102; 8 Jur. 205),
314, 358
Penn Gas Coal Co. v. Versailles Fuel
Gas Co. (131 Pa. St. 522; 19 Atl.
Rep. 933), 397
Penn Iron Co. v. Lancaster (17
Lane. L. Rev. 161), 604, 609,
610, 612
Penn. Mut. Life Ins. Co. v. Thack-
ara (10 Wkly. W. N. C. (Pa.)
104; 11 Wkly. W. N. C. 391; 13
Reporter 731), 6.32
Pennington v. Brinsop Coal Co. (5
Ch. 769; 46 L. J. Ch. 773; 37 L.
T. 149; 25 W. R. 874), 653, 674
Pennsylvania Co. v. Langendorf (48
Ohio St. 316; 28 X. E. Rep. 172;
13 L. R. A. 190), 780
Pennsylvania Coal Co. v. Sanderson
(113 Pa. St. 126; 6 Atl. Rep. 453;
86 Pa. St. 401; 94 Pa. St. 302),
657, 661
Pennsylvania Gas Co. v. Warren
Gas Co. (3 Pa. Dist. Rep. 67),
615, 620
Pennsylvania Globe Gas Co. v.
Scranton (97 Pa. St. 538), 457,
530
Pennsylvania Ins. Co. v. Faires ( 13
Tex. Civ. App. Ill; 35 S. W. Rep.
55), 797, 801
Pennsylvania Salt Co. v. Xeel (54
Pa. St. 9), 77, 285
Penny v. Rosendale, etc., Co. (14
Gas J. 927), 609
Pennville, etc., Co. v. Thomas (21
Ind. App. 1; 51 X. E. Rep. 351),
346
Pensacola Gas Co. v. Pebley (25
Fla. 381; 5 So. Rep. 593), 651
Ixxxvi
TABLE OF CASES.
(References are to pages.)
Pensacola Gas Co. v. Pensacola (33
Fla. 322; 14 So. Rep. 826), 474,
524
Penton v. Robart (2 East. 88), 646
People V. Assessors of Brooklyn (76
N. Y. 202; 16 Hun 196), 834
People V. Assessors of Brooklyn (6
N. Y. Trans. App. 116), 832
People V. Brooklyn Assessors (19
N. Y. App. Div. 599; 46 X. Y.
Siipp. 388 ) , 838
People V. Bovven (30 Barb. 24, af-
firmed 21 N. Y. 517), 498, 534,
540
People V. Budd (117 X. Y. 1; 22
X. E. Rep. 682; 5 L. R. A. 559;
15 Am. «t. Rep. 460), 618
People V. Chicago Gas Trust Co.
(130 111. 268; 22 X. E. Rep. 798;
8 L. R. A. 497; 29 Am. and Eng.
Corp. Cas. 257), 420, 422, 434,
531, 576
People V. Deehan (153 N. Y. 528;
47 X. E. Rep. 787, reversing 11
X. Y. App. Div. 175; 42 X. Y.
Supp. 1071), 443, 463, 521, 522,
524, 526, 527, 535, 538
People V. Deehan (11 X. Y. App.
Div. 175; 42 X. Y. Supp. 1071;
reversed 153 X. Y. 528; 47 X. E.
Rep. 787), 536
People V. Gilroy (67 Hun 323; 22
X. Y. Supp. 271), 518
People V. Gleason (121 X. Y. 631;
25 X. E. Rep. 4), 455
People V. Gold Run, etc., Co. (66
Cal. 138; 4 Pac. Rep. 1152), 654
People V. Kent (12 Xat. Corp. Rep.
(111.) 193), 422, 538
People V. Kingman ( 24 X. Y. 559 ) ,
512
People V. Lake Eric, etc., Co. (167
111. 283; 47 X. E. Rep. 518), 470
People V. Manhattan Gas Co. (45
Barb. 136; 1 Abb. Pr. (X. S.)
404; 30 How. Pr. 87), 577, 585,
586, 607, 610
People V. Martin (48 Hun 193),
833, 834
People V. Mutual Gaslight Co. (38
Mich. 154), 520, 540
People V. X. Y., etc., Co. (56 X. Y.
Supp. 364), 577, 586
People V. Xew York, etc., Co. (64
Barb. 55; 6 Lans. 467). 664, 672,
676
People V. O'Brien (111 X. Y. *l ; 18
X. E. Rep. 692), 522. 535
People V, Pacheco (27 Cal. 175),
450
People V. Rice (138 X. Y. 151; 33
X. E. Rep. 846), 842
People V. Ridgely (21 III. 65), 519
People V. San Francisco (11 Cal.
42), 471
People V. San Francisco ( 54 Cal.
248), 549
People V. Steele (56 X. Y. 664; 1
Sheldon 345). 834
People V. Stephens (62 Cal. 209),
421
People V. Van Rensselaer (8 Barb.
189), 251
People V. Wilber (4 Park. Cr. Rep.
19), 843
People V. Williams (35 Cal. 671),
42
People's Gaslight Co. v. Amphlctt
(93 111. App. 194), 701, 723, 745,
753
People's Gaslight & Coke Co. v. Chi-
cago (114 Fed. Rep. 384), 428,
433, 439, 444
People's Gaslight & Coke Co. v.
Plale (94 111. App. 406), 428, 429,
432, 434, 436, 522, 536, 538, 577,
578, 597, 600
People's Gas Co. v. Tyner (131 Ind.
277; 31 X. E. Rep. 59; 16 L. R. A.
443), 32, 33, 34, 39, 45, 48, 119,
136, 775
People'sXatural Gas Co. v. Fidelity,
etc., Co. (150 Pa. St. 8; 24 Atl.
Rep. 339), 827
TABLE OF CASES.
Ixxxvii
(References are to pages.)
People's Natural Gas Co. v. Pitts-
burgh (1 Penn. C. C. Rep. 311),
483
Peoria, etc., Ins. Co. v. Downs (90
Ky. -SSG; 13 S. W. Rep. 882; 12
Ky. L. Rep. 115), 823
Pereria v. Wallace (129 Cal. 397;
62 Pac. Rep. 61), 456
Perley v. Chandler (6 Mass. 453),
333
Peter v. Barnes (16 Ind. 219), 112
Pettibone v. Smith (150 Pa. St.
118; 24 Atl. Rep. 693), 840
Pettis V. Johnson (56 Ind. 139),
514
Petroleum Co. v. Coal, etc., Co. (89
Tenn. 381; 18 S. W. Rep. 65),
68, 90. 130, 132
Peyton v. Texa.s & Pacific Ry. (41
La. Ann. 861; 6 So. Rep. 690),
780
Pfeiffer v. Brown (165 Pa. St. 267;
30 Atl. Rep. 844), 658
Philadelphia v. Flanigen (47 Pa.
St. 21), 469
Philadelphia v. Fox (64 Pa. St.
169), 446
Philadelphia v. Hays (93 Pa. St.
72). 474
Philadelphia Gas Works Co., In re
(1 Dauph. Co. Rep. 55), 482, 483,
530
Philadelphia Co. v. Central Traction
Co. ( 165 Pa. St. 456 ; 30 Atl. Rep.
934), 755
Philadelphia Co. v. Freeport ( 167
Pa. St. 27; 31 Atl. Rep. 571),
513. 515
Philadelphia Gas Co. v. Park Bros.
(138 Pa. St. 346; 22 Atl. Rep.
86), 530, 597, 599, 603
Philbrick v. Ewing (97 Mass. 133),
636, 649
Phillips V. Coast (130 Pa. St. 9(12;
18 Atl. Rep. 998), 142
Phillips V. Vandergrift (146 Pa. St.
357; 23 Atl. Rep. 347), 183, 267
Phoenix Gaslight, etc., Co. v. Shil-
lits (19 Gas -J. 848), 843
Phoenix, etc., Co. v. Dfethick ( 14 Gas
J. 536), 754
Phoenix Ins. Co. v. Erie, etc., Co.
(117 U. S. 312; 6 Sup. Ct. Rep.
750, 1176), 827
Phoenix Ins. Co. v. Flemming (65
Ark. 54; 44 S. W. Rep. 464; 39
L. R. A. 789), 795, 818
Phoenix Ins. Co. v. Greer (61 Ark.
509; 33 S. W. Rep. 840), 805
Phoenix Ins. Co. v. Lawrence (4
Mete. (Ky.) 9; 81 Am. Dec. 521),
826
Phoenix, etc., Co. v. Hunger (49 S.
W. Rep. (Tex. Civ. App.) 271),
801
Phoenix Ins. Co. v. Shearman (17
Tex. Civ. App. 456; 43 S. W.
Rep. 930, 1063), 797, 800
Phoenix Ins. Co. v. Taylor (5 Minn.
492), 812
Pickett v. Pacific, etc., Ins. Co.
(144 Pa. St. 79; 22 Atl. Rep.
871), 829, 830
Pierce v. George (108 Mass. 78),
631
Pifer v. Brown (43 W. Va. 412;
27 S. E. Rep. 399; 49 L. R. A.
497), 82
Pilcher v. Atchison, etc., Ry. Co.
(38 Kan. 516; 16 Pac. Rep. 945),
284
Pine Bluff, etc., Co. v. Derreuisseaux
(56 Ark. 132; 19 S. W. Rep. 428),
788
Pine Bluff, etc., Co. v. McCain (62
Ark. 118; 34 S. W. Rep. 549),
685. 692. 710, 730
Pine Bluff, etc., Co. v. Schneider
(62 Ark. 109; 34 S. W. Rep.
.547; 33 L. R. A. 366), 706, 709,
710, 712, 745, 746, 747, 750
Pingree v. Mutual Gas Co. (107
Mich. 156; 65 N. W. Rep. 6), 604
Pingrey v. Watkins (15 Vt. 479),
246
Ixxxviii
TABLE OF CASES.
(References are to pages.)
Piru Oil Co. (\G Lan. Dec. 117), 32,
55
Pittsburg, etc., Co., In re (16 Pa.
Co. Ct. Rep. 433), 481, 483
Pittsburg's Appeal (115 Pa. St. 4;
7 Atl. Rep. 778), 427, 514, 525,
531, 532
Pittsburg's Appeal (123 Pa. St.
374; 16 Atl. Rep. 621), 838
Pittsburg, etc., Co. v. Lake Superior
Iron Co. (118 Mich. 109; 76 N.
W. Rep. 395), 334
Pittsburg Carbon Co. v. Philadel-
phia Co. (130 Pa. St. 438; 18
Atl. Rep. 732), 459, 503, 572
Pittsburg Gas Co. v. Pittsburg (101
U. S. 219), 474
Pittsburg Consolidated Coal Co. v.
Greenlee (164 Pa. St. 549; 30
Atl. Rep. 489), 276
Planters', etc., Ins. Co. v. Rowland
(66 Md. 236; 7 Atl. Rep. 257),
809
Plonk V. Jessop (178 Pa. St. 71;
27 Pittsb. L. J. (N. S.) 162; 39
W. N. C. 156; 35 Atl. Rep. 851),
746
Plummer v. Hillside, etc., Co. (160
Pa. St. 483; 28 Atl. Rep. 853), 62,
78, 150, 206, 321
Pocatello Water Co. v. Standley (61
Pae. Rep. (Idaho) 518), 434, 542,
594, 616
Pocock V. Brighton (31 Gas J. 429),
716, 722
Pool V. Milwaukee, etc., Ins. Co. (91
Wis. 530; 65 N. W. Rep. 54),
808
Poole V. Middleton (29 Beav. 640;
9 Jur. (N. S.) 1262; 4 L. T.
631; 9 W. R. 758), 352
Poolcy V. Whitmore (10 Heisk. 629;
27 Am. Rep. 733), 348
Porquay Gas Co. v. Carter (32 Gas
J. 490), 587
Port V. Jackson (17 Johns. 239),
235
Porter v. Noyes (47 Mich. 35; K)
N. W. Rep. 77), 163
Portland Natural Gas Co. v. State
(135 Ind. 54; 34 N. E. Rep. 818;
21 L. R. A. 639), 576, 578, 579,
581, 585, 594, 596
Post V. Kearney (2 X. Y. 394), 246
Postal Telegraph & Cable Co. v.
Eaton (170 111. 513; 49 N. E.
Rep. 365), 549
Potter V. Gilbert (177 Pa. St. 159;
35 Atl. Rep. 597; 35 L. R. A.
580), 640
Potter V. Natural Gas Co. ( 183 Pa.
St. 575; 39 Atl. Rep. 7), 789
Potter V. Cromwell (40 N. Y. 287),
629
Potter ie Gas Co. v. Potter ie (153
Pa. St. 10; 25 Atl. Rep. 1107;
179 Pa. St. 68; 36 Atl. Rep. 232),
200, 210
Poterie Gas Co. v. Poterie (179 Pa.
St. 68; 30 Atl. Rep. 232), 120,
254
Pottstown Gas Co. v. Murphy (39
Pa. St. 257), 651, 664, 666, 667,
672
Poughkeepsie Gas Co. v. Citizens'
Gas Co. (20 Hun 214), 616, 637
Powell V. Aikin (4 K. & J. 343),
49
Powell V. Elliott (L. R. 10 Cli. App.
424; 33 L. T. 110; 23 W. R. 777),
319
Powell V. Lantzy (173 Pa. St. 543;
34 Atl. Rep. 450), 78, 840
Powell V. Thomas (0 Ha. 300), 315
Powell Duffiyn Coal Co. v. Taft"
Vale Rail Co. (L. R. 9 Ch. App.
331; 43 L. J. Ch. 575; 30 L. T.
208), 318
Power V. Athens (99 N. Y. 592; 2
N. E. Rep. 609), 496
Powers V. Boston Gaslight Co. (158
Mass. 257; 33 N. E. Rep. 523),
710, 719, 756
TABLE OF CASES.
Ixxxix
(Reffciences are to pages.)
Prattlp V. Hornibrook ([1897] 1 Ch.
25; 66 L. J. Ch. 144; 75 L. T.
475; 45 W. R. 123). 316
Preston v. Hayton, etc., Gas Co. (25
Gas J. 889), 605, 620, 623
Prentice v. Janssen (79 N. Y. 478),
308
Presidio Mining Co. v. BuUis (68
Tex. 581; 4 S. W. Rep. 800), 87,
93, 284
Price V. Griffith (DeG. M. & G.
80; 21 L. J. Ch. 78; 15 Jur. 1093;
18 L. T. (0. S.) 190), 318
Price V. Malott (85 Ind. 266), 6S0
Price V. South, etc.. Gas Co. (65
L. J. Q. B. 126; 12 T. L. R. 31),
718
Priehard v. Consolidated Gas Co. (2
Pa. Super. Ct. 179; 39 W. N. C.
28), 766
Priddy v. Griffith (150 111. 560; 37
N. E. Rep. 999), 287, 288, 289
Pritchard v. Consolidated Gas Co. (2
Pa. Super. Ct. 179; 39 W. N. C.
28), 706
Providence Gas Co. v. Thurber (2
R. I. 15; 55 Am. Dec. 621), 520,
548, 833
Pryor, In re (55 Kan. 724; 41 Pac.
Rep. 958; 29 L. R. A. 398;' 49
Am. St. Rep. 280; 12 Am. R. and
Corp. Rep. 364), 421, 424, 460
Pudsey Coal Gas Co. v. Bradford
(L. R. 15 Eq. 167; 21 W. R. 286;
42 L. J. Ch. 293; 22 Gas J. 54),
576
Pullman v. Mayor (49 Barb. 57),
469
Pullman Palace Car Co. v. Laack
(143 111. 242; 32 N. E. Rep. 285;
. 18 L. R. A. 215, affirming 41 111.
App. 34), 693, 721, 736. 775
Putnam v. Commonwealth Ins.^o.
(4 Fed. Rep. 753), 798
Putnam Insurance Co. (18 Blatchf.
368; 4 Fed. Rep. 753), 813
Q
Quarryville Water Co. v. Fritz (14
Lane. L. Rev. 186), 395
Queen v. Firth (L. R. 1 Crown Cas.
Res. 172), 843
Queen City, etc., Co. v. Gibson
House Co. (4 Ohio N. P. 119; 6
Ohio Dec. 148), 614
Queen's Ins. Co. v. Harris (2 Wkly.
N. C. (Pa.) 220), 823
Queen Ins. Co. v. Sinclair (1 Ohio
Cir. Ct. Rep. 496), 796
Quincy v. Bull (100 111. 337; 4 Am,
and Eng. Corp. Cas. 554), 548
Quinn v. Quinn (81 Cal, 14; 22 Pac.
Rep. 264), 339
R
Railroad Co. v. Railroad Co. (32
Barb. 358, 364), 522
Railroad Co. v. Sanderson (109 Pa.
St. 583), 369
Rainey v. Frick Coke Co. (73 Fed.
Rep. 389), 298
Ramsey v. White (21 Pittsb. L. J.
(N. S.) 425). 187
Ranck v. Cedar Rapids Gas Co. (116
la. — ; 89 N. W. Rep. 88), 729,
730
Rand v. Venture Oil Co. (48 Fed.
Rep. 248), 397
Randall v. Merideth (76 Tex. 669;
13 S. W. Rep. 576), 340, 348
Ransberry v. Kellar (9 Pa. Co. Ct.
Rep. 299), 515
Rankin's Appeal (1 Mong. (Pa.)
308; 2 L. R. A. 429), 290, 294
Rapson v. Cubitt (9 Mess. & Wels.
710; C. & M. 64), 754
Rara Avis' Gold & Silver Mining
Co. V. Bouscher (9 Colo. 385;
12 Pac. Rep. 433), 357
Ratsberry v. Keller (9 Pa. Co. Ct.
Rep. 299), 513
Rau V. Winchester Fire Ins. Co.
(36 N. Y. App. Div. 179; 55
N. Y. Supp. 459), 814
TABLE OF CASES,
(References are to jiages.)
Rawlings v. New Memphis, etc.. Co.
(105 Tenn. 2G8; 60 S. W. Rep.
206), 361, 363
Ray V. Natural Gas Co. (138 Pa.
St. 576; 20 Atl. Rep. 1065; 12
L. R. A. 290), 121, 166, 168, 185,
187, 188, 222
Ray V. Western, etc., Gas Co. (138
Pa. St. 576; 20 Atl. Rep. 1065;
12 L. R. A. 290; 27 W. N. C.
230), 183, 193, 224, 266
Raymond v. Johnson (17 Wash.
232; 49 Pac. Rep. 492), 83
Raynolds v. Hanna (55 Fed. Rep.
783), 76
Read v. Beck (66 la. 21; 23 N. W.
Rep. 159), 162
Reading v. Consumers' Gas Co. (2
Del. Co. Rep. (Pa.) 437), 531
Reagan v. Farmers' Loan, etc., Co.
(154 U. S. 362), 431
Reaper City Ins. Co. v. Jones (62
111. 458), 822
Redlands Domestic Water Co. v.
Redlands (120 Cal. 312; 53 Pac.
Rep. 843), 432
Red Star S. S. Co. v. Jersey City
(45 N. J. L. 246), 619
Reed v. Reed (16 N. J. Eq. 248),
287
Reeve v. Whitmore (33 L. J. Ch.
63), 646
Reeves v. Corning (51 Fed. Rep.
74), 174
Regina v. Birmingham Gas Co. (1
B. & C. 506), 649
Regina v. Brighton Gas Co. (5 B. &
C. 466), 649
Regina v. Colne Valley Gas Co. (29
Gas J. 498, 781; 30 Gas. J. 218),
543
Regina v. Inhabitants of Lee (L. R.
1 Q. B. 241; 35 L. J. M. C. 105;
12 Jur. (N. S.) 225; 13 L. T.
(N. S. 704; 14 W. R. 311), 632,
633
Regina v. Jenkins (5 Gas J. 214),
843
Regina v. Lee (L. R. 1 Q. B. 241;
35 L. J. Mc. 105; 12 Jur. (N. S.)
225; 13 L. T. (N. S.) 704; 14 W.
R. 311), 833
Regina v. Longton Gas Co. (2 Ell.
& Ell. 651; 2 L. T. (N. S. 14; 8
Cox C. C. 317; 29 L. J. M. C.
118; 8 Gas J. 165; 9 Gas J. 114;
6 Jur. (N. S.) 601; 8 W. R. 293),
543
Regina v. Mile End Old Town (10
Q. B. 208; 3 New Sess. Cas. 13;
16 L. J. Mc. 184; 11 Jur. 985),
833
Regina v. Mitchell (22 Gas J. 137),
843
Regina v. Rockdale W. W. Co. (1
M. & S. 634), 649
Regina v. Sheffield Consolidated
Gaslight Co. (32 L. J. M. C.'16S;
4 B. & S. 135; 9 Jur. (N. S.)
623; 8 L. T. (N. S.) 692; 11 W.
R. 1064), 833
Regina v. Sheffield Gas Consumers'
Co. (18 Jur. 146, note), 542
Regina v. West Middlesex Water
Works Co. (1 E. & E. 716; 28
L. J. M. C. 135; 5 Jur. (N. S.)
1159), 699, 833
Regina v. White (20 E. L. & Eq.
585; 17 Jur. 536; 3 C. & K. 363;
6 Cox Cr. Cas. 213; Dears. C. C.
203; 22 L. J. (N. S.) 123), 843
Reid v. Parsons (2 Chit. 247), 180
Reiss V. Stearn Co. (128 N. Y. 103;
28 N. E. Rep. 24), 701, 702
Renshaw v. Missouri, etc., Ins. Co.
(33 Mo. App. 394; 103 Mo. 595;
15 S. W. Rep. 945). 803
Renshaw v. Missouri, etc., Ins. Co.
(103 Mo. 595; 15 S. W. Rep.
945; 23 Am. St. Rep. 204), 812,
815
Rex V. Medley (6 C. & P. 292), 652,
654, 658, 667, 676
Reynolds v. Cook (83 Va. 817; 13
S. L. Rep. 710), 106
TABLE OF CASES.
(References are to pages.)
Reynolds v. Hanna (55 Fed. Rep.
783), 290, 291
Rhea v. Tathem (1 Jones Eq. 290 J,
310
Rhea v. Vannoy ( 1 Jones Eq. 282 ) ,
310
Rhoades v. Patrick (27 Pa. St. 323),
42
Rhodes v. Thomas (2 Ind. 638),
172
Ricard V. Sanderson (41 N. Y. 179),
102
Rice V. Ege (42 Fed. Rep. 661), 48,
102, 134
Richards v. Dover (N. J. L.) (39
Atl. Rep. 705), 842
Richards v. Killam (10 Mass. 239),
277
Richards v. Protection Ins. Co. (30
Mo. 273), 807
Richardson Ins. Co. (46 Fed. Rep.
843), 830
Richmond Gas Co., In re ([1893] 1
Q. B. 56; 62 L. J. Q. B. 172; 67
L. T. 554; 41 W. R. 41; 56 J. P.),
461, 591 .
Richmond County Gaslight Co. v.
Middletown (59 N. Y. 228. af-
firming 1 T. & C. 143), 420, 422,
446, 471, 489, 585
Richmond Gas Co. v. Baker (146
Ind. 600; 45 N. E. Rep. 1049; 36
L. R. A. 683), 712, 714, 721, 736,
737, 744
Richmond Mfg. Co. v. Atlantic De-
Lain Co. (10 R. I. 106), 653
Richmond Natural Gas Co. v. Claw-
son (155 Ind. 659; 58 N. E. Rep.
1049; 51 L. R. A. 744), 597, 603,
604
Richmond Natural Gas Co. v. Enter-
prise Natural Gas Co. (66 N. E.
Rep. (Ind. App.) 782), 42, 44, 45,
47, 117, 119, 414 '4
Ricketts v. Bell (1 DeG. & Sm.
335; 10 L. T. 105; 11 Jur. 918),
3i8, 319
Ricketts v. Bennett (4 C. B. 686;
17 L. J. (N. S.) C. P. 17; 11
Jur. 1062), 348
Rico, etc., Co. v. Musgrave ( 14
Colo. 79; 23 Pac. Rep. 458), 353,
362
Riddle v. Mellon (147 Pa. St. 30;
23 Atl. Rep. 241), 150, 161, 192
Rideout v. Knox (148 Mass. 368;
19 N. E. Rep. 390), 48
Ridgeway Light, etc., Co. v. Elk Co.
(191 Pa. St. 465; 43 Atl. Rep.
323), 838, 839
Rieker v. Lancaster (7 Pa. Super.
Ct. 149; 42 W. N. C. 160), 599
Rienker v. Lancaster ( 14 Lane. L.
Rev. 393), 483, 573, 580, 581
Riggan v. Green (80 N. C. 236),
280
Ritchie v. McAllister (14 Pa. Co.
Ct. Rep. 267), 641, 644
Rivara v. Queens Ins. Co. (62 Miss.
720), 822
Riverton, etc., Co. v. Haig ( 58 N. J.
L. 295; 33 Atl. Rep. 215), 833
Roanoke Gas Co. v. Roanoke (88
Va. 810; 14 S. E. Rep. 665), 542
Robb v. Carnegie (145 Pa. St. 324;
22 Atl. Rep 649; 14 L. R. A.
329), 663, 664
Roberts v. Bettman (45 W. Va. 143;
30 S. E. Rep. 95), 187, 265, 267
Roberts v. Davey (4 Barn. & Ad.
664; 1 Nev. & M. 443), 182
Roberts v. Eberhart (1 Kay 148;
23 L. J. Ch. 201; 22 L. T. 253; 2
W. R. 125) 349
Roberts v. Jepson (4 L. D. 60), 32,
55
Roberts v. McFaddin ( 74 S. W. Rep.
(Tex. Civ. App.) 105), 71
Robert v. Sadler (104 N. Y. 229; 10
N. E. Rep. 428), 333
Robertson v. Jones (71 111. 405), 49
Robbins v. Gaffey (48 Leg. Int.
462), 397
Robinson, In re (28 Tex. App. 511;
13 S. W. Rep. 786), 418
TABLE OF CASES.
(References arc to pages.)
Robinson v. C<>al.Co. (50 Cal. 460),
654
Robinson v. llurman (1 Exch. 850;
18 L. J. Exch. 202), 320
Robinson v. Imperial, etc., Co. (15
Gas. J. 883), 789
Roche V. Milwaukee Gaslight Co.
(5 Wis. 55), 473
Rockebrandt \. Madison (9 Ind.
App. 227; 36 N. E. Rep. 444), 560
Rockford Gaslight, etc., Co. v. Ernst
(68 111. App. 300), 687, 703, 706,
709, 710, 717, 729
Rockland Water Co. v. Camden, etc..
Water Co. (80 Me. 544; 15 Atl.
■ Rep. 785 ) , 490
Rockwell V. Morgan (2 Beas. (N.
J. Ct.) 384), 295
Roe V. Columbus, etc., Ins. Co. (17
Mo. 301), 805
Roehl V. Hanmesser (114 Ind. 311;
15 N. E. Rep. 345), 95
Rogers, In re (4 Land Dec. 284), 55
Rogers v. Cox (96 Ind. 157), 630
Rogers v. Crow (40 Mo. 91; 93 Am.
Dec. 299), 632
Rogers v. Eag^e Fire Co. (9 Wend.
611, 618), 102
Rogers v. Humphreys (4 Ad. & El.
299), 367
Rogers v. Prattville Mfg. Co. (81
Ala. 483; 1 So. Rep. 643), 636
Rogers Park Water Co. v. Fergus
178 111. 571; 53 N. E. Rep. 363),
433, 436
Rogers Park Water Co. v. Fergus
(180 U. S. 624; 21 S. Ct. Rep.
490, affirming 178 111. 571; 53 N.
E. Rep. 563). 439, 444
Rollins V. Rilev (44 N. H. 9), 199
Rover Iron Co. v. Trout (83 Va.
397; 2 S. E. Rep. 713), 70, 146,
166
Rose V. Stephens, etc.. Transporta-
tion Co. (11 Fed. Rep. 438; 20
Blatchf. 4K). 701, 702
Rosenheimer v. Standard Gaslight
Co. (36 N. Y App. Div. 1; 55 N.
Y. Supp. 192). 664, 672
Rosenquist v. Canary (15 N. Y.
Misc. 148; ;i6 N. \\ Supp. 979;
72 N. Y. St. Rep. 422), 211
Roseville Alta Mining Co. v. Iowa
Gulch Mining Co. (15 Colo. 29;
24 Pac. Rep. 920), 642, 644
Ross V. Campbell (9 Colo. App. 38;
47 Pac. Rep. 465), 638
Ross V. Schneider (30 Ind. 423), 112
Rossi ter v. Miller (3 App. Cas.
1124; 48 L. J. Ch. 10; 39 L. T.
173; 26 W. R. 865), 314, 316
Routledge v. Grant (4 Ring. 660),
316
Rowe V. Wood (1 J. & W. 555), 371
372, 374, 377
Rowell V. Bodfish (10 Atl. Rep.
(Me.) 448). 76
RuflFatti V. Societe, etc. (10 Utah
386; 37 Pac. Rep. 591), 79
Rushville Gas Co. v. Rushville (121
Ind. 206; 23 N. E. Rep. 72), 560
Rushville v. Rushville Natural Gas
Co. (132 Ind. 575; 58 N. E. Rep.
853; 15 L. R. A. 321; 43 Am. &
Eng. Corp. Cas. 483), 427, 488
Russell V. Maruifacturer's, etc., Ins.
Co. (50 Min. 409; 52 N. W. Rep.
906), 795, 819
Russell V. Stratton (201 Pa. St.
277; 50 Atl. Rep. 975), 166
Russen v. Wanser (53 Md. 92), 367
Rutland v. Gic (1 Sid. 152; 1 Lev.
107), 287
Ryall V. Rolle (1 Atk. 175), 638,
648
Ryckman v. Gillis (6 Lans. 79), 328
Rylands v. Fletcher (L. R. 3 H. L.
330), 685
Rynd v. Rynd Farm Oil Co. (63 Pa.
St. 397), 81, 82, 216
Sackett v. Now Albany (88 Ind.
473; 45 Am. Rep. 467), 450
TABLE OF CASES.
(References are to pages.)
Saginaw Gaslight Co. v. Saginaw
(28 Fed. Rep. 529), 488, 489, 505,
528
Sale V. Lambeit (L. R. 18 Eq. 1; 43
L. J. Ch. 470; 22 W. R. 478), 314
Saltsburg Gas Co. v. Saltsburg (138
Pa. St. 250; 27 W. N. C. 120; 20
Atl. Rep. 844; 10 L. R. A. 193),
467, 472, 600
Sampson v. Giogan (21 R. I. 174;
42 Atl. Rep. 712; 44 L. R. A.
711), 290
Samuel v. CavdiflF Gas Co. (18 Gas
J. 192), 601
Sanders v. Rowe (48 S. W. Rep.
(Ky.) 1083; 20 Ky. L. Rep.
1082), 140
Sanders v. Sharp (153 Pa. St. 555;
25 Atl. Rep. 524), 171, 184, 226.
245
Sanderson v. Scranton (105 Pa. St.
469), 62, 77, 839
Sands v. Hughes (53 N. Y. 287),
246
Sandy Lake v. Sandy Lake, etc., Co.
(16 Pa. Super. Ct. 234), 460, 464,
502, 520, 522, 523, 528, 531
San Diego Water Co. v. San Diego
(118 Cal. 556; 50 Pac. Rep. 633;
38 L. R. A. 460; 62 Am. St. Rep.
261), 429, 430, 432, 433
San Diego, etc., Co. v. Jasper (110
Fed. Rep. 702), 428
San Diego, etc., Co. v. Ja,sper (111
Fed. Rep. 702), 429
San Diego Land Co. v. National
City (174 U S. 739, affirming 74
Fed. Rep. 79), 430, 431, 433
San Francisco Gas Co. v. San Fran-
cisco (6 Cal. 190), 457
San Francisco Gas Co. v. Saji Fran-
cisco (9 Cal. 453), 446, 462
San Francisco Gas Co. v. Brick-
wedel (62 Cal. 641), 469
San Joaquin, etc., Co. v^_Stanislaus
County (113 Fed. Rep. 930), 428
San Jose v. January (57 Cal. 614).
834, 838
San Luis Water Co. v. Estrada (117
Cal. 168; 48 Pac. Rep. 1075), 459,
527
Santa Clara, etc., Assn. v. Quick
Silver Mining Co. (17 Fed. Rep.
657), 341
Santa Ana Water Co. v. San Buena-
ventura (56 Fed. Rep. 339), 422
Sargent v. Robertson (17 Ind. App.
411; 46 N. K Rep. 925), 101, 274
Satterfield v. Rowan (83 Ga. 187;
9 S. E. Rep. 677), 654
Sattler v. Opperman (30 Pittsb. L.
J. (N. S.) 205), 640. 644
Sauvage v. English Gas Co. of Paris
(4 Gas J. 136), 749
Sayers v. Hoskinson (110 Pa. St.
473; 1 St. Rep. 308), 287, 294
Schaum v. Equitable Gaslight Co.
(15 N. Y. App. Div. 74; 44 N. Y.
Supp. 284 ) , 698
Schaupp V. Hukill (34 W. Va. 375;
12 S. E. Rep. 501), 193, 201
Scheizer v. Mansfield ( 14 Colo. App.
236; 59 Pa-. Rep. 843), 359
Schenck v. Olyphant (181 Pa. St.
191; 37 Atl. Rep. 258), 559
Schendell v. Rogan (94 Tex. 585;
63 S. W. Rep. 1001), 335
Schermerhorn v. Metropolitan Gas-
light Co. (5 Daly 144), 692, 717,
7.34, 747
Schmeer v. Gaslight Co. ( 147 N. Y.
529 ; 42 N. E. Rep. 202 ; 30 L. R.
A. 653, reversing 65 Hun 378 ; 26
N. Y. Supp. 1128; 20 N. Y. Supp.
168), 577, 584, 585, 624, 733, 736,
742, 765
Schmidt v. Gillen (41 X. Y. App.
Div. 302; 5S N. Y. Supp. 4.58),
791
Schooley v. Butler Mining Co. (9
Kulp. (Pa.) 291), 109
Schumaker v. Sibert (18 Kan.
104). 102
Schi>ylkill Co. v. Citizens' Gas Co.
(148 Pa. St. 162; 23 Atl. Rep.
1055), 838, 839
TABLE OF CASES.
(References are to pages.)
Schwede v. Heinrich, etc., Co. (29
Wash. — ; (i'J Pac. Rep. 362), 443,
514, 515, 516
Scott V. Daverport (34 la. 208),
468
Scott V. Fritv: ^51 Pa. St. 418), 367
Scott V. Manchester (2 H. & N. 204;
26 L. J. EKch. 132, 406; 3 Jur.
(N. S.) 590; 5 W. R. 598), 788
Scott V. Mayor, etc., of Manchester
(37 Eng. L. & Eq. 495; 2 H. & N.
204; 26 L. J. Exch. 132, 406; 3
Jur. (N. S.) 590; 5 W. R. 598),
722
Scott V. Standard Oil Co. (106 Ala.
. 475; 19 So. Hep. 71; 31 L. R. A.
374), 844
Scottish, etc., Co. v. Toronto (24
Ont. App. 208), 539
Scranton Electric Light & Jleat Co.
V. Scranton, etc., Co. (3 Pa. Co.
Ct. Rep. 628), 501
Scriptme v, Lowell, etc., Ins. Co.
(10 Cush. 356), 803
Sculcoates Union v. Hull Dock Co.
([1895] App. Cas. 137; 64 L. J.
M. C. 49; 71 L. T. 642; 43 W. R.
623; 59 J. P. 612; 11 R. 74), 833
Seager v. McCable (92 Mich. 186;
52 N. W. Rep. 299; 16 L. R. A.
247), 287, 291
Seeger v. Pettit (77 Pa. St. 437),
638
Searle v. Abraham (73 la. 507; 35
N. W. Rep. 612:, 456
Seavey v. Drake (62 N. H. 393), 315
Second National Bank v. O. E. Mer-
rill Co. (69 Wis. 501; 34 N. W.
Rep. 514), 639
Seiders, etc., Co. v. Lewis (7 Pa.
Dist. Rep. 278; 21 Pa. Co. Ct.
Rep. 80), 644
Seiders, etc., Works v. Lewis, etc..
Co. (7 Pa. Dist. Rep. 278; 21 Pa.
Co. Ct. Ren. 80), 356
Selby V. Crystal, etc., Gas Co.
(30 Beav. 606; 11 Gas J. 798; 6
L. T. R. 790), 391
Selby V. Crystal, etc., Co. (4 DeG.
F. & J. 246; 31 L. J. Ch. 595; 8
Jur. (N. S.) 830; 6 L. T. (N. S.)
790; 10 W. R. 636), 537
Seton V. Slade (7 Ves. 274), 314
Settembre v. Putnam ( 30 Cal. 490 ) ,
342
Sewell V. Angerstein (18 L. T. (N.
S.) 300), 034
Seward v. Liberty ( 142 Ind. 551 ; 42
N. E. Rep. 39 ) , 446, 466, 468
Sewickloy v. OJiio Valley Gas Co.
(154 Pa. St. 539; 25 Atl. Rep.
868), 612
Sewickley v. Ohio Valley Gas Co.
(6 Pa. Co. Ct. Rep. 99; 1 Mona-
ghan 97), 52b
Sewickley Sch.col District v. Ohio
Valley Gas Co. (154 Pa. St. 539;
25 Atl. Rep. 868), 424
Shardlow v. Cotterell (20 Ch. Div.
90; 51 L. J. Ch. 353; 45 L. T.
572; 30 W. R. 143), 313
Sharp V. Behr (117 Fed. R«p. 864),
107. 122. 1-23
Sharp V. South OmaJia (53 Neb.
700; 74 N. \V. Rep. 76), 513, 522,
534
Shattuck V. Lovejoy (8 Gray 204),
247
Shaw V. Jones (6 Ohio Dec. 453; 4
Ohio N. P. 372), 570
Shaw V. Lenke (1 Daly 487). 632
Shaw V. McGregory (105 Mass. 96),
348
Shaw V. Partridge (17 Vt. 626),
171, 245
Shaw V. Wallace (25 N. J. L. 453),
74, 285
Sheafe v. People (87 111. 189; 29
Am. Rep. 49), 512
Sheaffer v. SheaiTer (37 Pa. 525),
180
Sheehy v. Muskerry ( 1 H. L. Cas.
576 ; 7 CI. & F. 1 ; 1 Macl. & R.
493; LI. & Gt. Plunk 568). 373,
379
TABLE OF CASES.
(.References are to pages.)
Sheets v. Allen (8-9 Pa. St. 47), 74
Sheffield v. Sheffield, etc. Co. ( [1898]
1 Ch. 203; 77 Law T. Eep. 616;
67 L. J. Ch. (N. S.) 113), 567,
568
Sheffield United Gas Co. v. Sheffield
(4 B. & S. 135), 649
Sheffield United Gas Co. v. Sheffield
Consumers' Co. (2 Gas J. 360),
490
Sheffield W. W. Co. v. Bingham (L.
R. 25 Ch. Div. 443; 48 L. T. 604;
52 L. J. Ch. 624; 36 Gas J. 769),
618. 619
Sheffield W. ^A'. Co. v. Brooks (8
Q. B. Div. 632; 51 L. J. M. C.
97; 30 W. R. 889; 46 J. P. 548),
588, 600
Sheffield W. W. Co. v. Carter (L. R.
C S. B. 632; 51 L. J. M. C. 97 ; 30
W. R. 889; 40 J. P. 548), 618,
619
Sheffield W. W. Co. v. Wilkinson
(4 C. P. Div. 410), 588, 607
Shelbyville Water Co. v. People
(140 111. 545; 30 N. E. Rep. 678;
16 L. R. A. 505), 832
Sheller v. Shivers (171 Pa. St. 569;
33 Atl. Rep. 95), 152, 221, 629,
643
Shenandoah Land, etc.. Co. v. Hise
(92 Va. 238; 28 S..E. Rep. 303),
62, 151
Shepard v. Milwaukee Gaslight Co.
(15 Wis. 318; 82 Am. Dec. 679),
579, 589, 590, 596
Shephard v. Milwaukee Gaslight Co.
(6 Wis. 53!); 70 Am. Dec. 479),
577, 581, 58i, 585, 592, 593, 594,
595. 596, 601, 621
Shepher v. McCalmont Oil Co. (38
Hun 37), 42, 63, 190
Shepherd v. Wilwaukee Gaslight Co.
(11 Wis. 234; 15 Wis. 318; 82
Am. Dec. 679; 6 Wis. 539), 577,
593, 594. 596 ^
Sherman v. Fall River Works Co.
(5 Allen 213), 651, 674, 682, 695
Sherman v. Fall River Iron Works
(2 Allen 524; 79 Am. Dec. 799),
667, 672, 673, 737, 753
Shettler v. Hartman ( 1 Pennyp.
(Pa.) 279), 183
Sheward v. Citizens' Water Co. (90
Cal. 635; 27 Pac. Rep. 439), 604
Shiras v. Ewing (48 Kan. 170; 29
t'ac. Rep. 220), 593, 594, 595. 607
Shireff v. Wilks (1 East 48), 351
Shoenberger v. Equitable Gas Co.
(22 Pittsb. L. J. (N. S.) 347),
591
Shonberger v. Lyon (7 M. & S. 184),
329
Shoemaker's Appeal (106 Pa. St.
392), 288, i!90. 294
Sholts Iron Co. v. Inglis (L. R. 7
App. Ca.s. 518), 662
Short V. Miller (120 Pa. St. 470;
14 Atl. Rep. 374 ) . 355. 364
Shuter v. Philadelphia (3 Phila.
228; 15 Leg. Int. 333). 651, 722
Sicardi v. Keystone Oil Co. (149
Pa. St. 139; 24 Atl. Rep. 161,
163), 361, 364
Sickles V. MacLatter Gaslight Co.
(66 How. Pr. 304, 314; 64 How.
Pr. 33), 609, 612, 623
Siebrecht v. East River Gas Co. (21
N. Y. App. 110; 47 N. Y. Supp.
262). 698, 706. 707, 710. 715, 716,
717, 723. 729, 761
Siler V. Globe Window Glass Co. (21
Ohio Cir. Ct. Rep. 284; 11 Ohio
C. D. 784). 221, 642
Silkman v. Yonkers Water Comrs.
(1.52 N. Y. 327; 46 N. E. Rep.
612; 37 L. R. A. 827). 599
Sillingford v. Good (95 Pa. St. 25),
277
Silsby V. Trotttr (29 N. J. Eq. 228),
105
Silva V. Rankin (80 Ga. 79; 4 S. E.
Rep. 7.56), S3
Simon v. Northwestern, etc., Co. (12
Ohio C. C. Rep. 170; 5 Ohio Cir.
Dec. 4.56), 113, 165
TABLE OF CASES.
(References are to pages.)
Simmons v. Buckeye Supply Co. (21
Ohio Cir. Ct. Rep. 455; 11 Ohio
C. D. 690), 260, 283
Simons v. Vulcan Oil, etc., Co. (61
Pa. St. 202), 310, 312
Simons v. Van Inger (86 Pa. St.
330), 224, 226
Simpson v. Pittsburgh, etc., Co. (28
Ind. App. 343; 62 N. E. Rep.
753), 62, 86, 95, 270
Sime V. Biittain (4 B. & A. 375;
2 N. &-M. 594), 348
Sims V. Mutual, etc., Ins. Co. (101
Wis. 586; 77 N. W. Rep. 908).
827
Sisson V. Hibbard (75 N. Y. 542).
631
Skaneateles W. W. Co. v. Skane-
ateles (161 N. Y. 154; 55 N. E.
Rep. 562, affirming 33 N. Y. App.
Div. 642; 54 N. Y. Supp. 1115),
491, 497, 502
Skillman v. Lachman (23 Cal. 199),
340, 348
Skoagland v. St. Paul Gaslight Co.
(93 N. \V. Rep. (Minn.) 668),
724, 758
Skym V. Weske, etc., Co. (47 Pac.
Rep. (Cal.) 110), 354
Slater v. Haa ^ (15 Colo. 574; 25
Pac. Rep. 1089), 345
Slee V. Manhattan Co. ( 1 Paige Ch.
48), 366
Sloan V. Furness (29 Ohio St. 568),
329
Small V. Attwood (6 CI. & F. 232;
2 L. J. Exch. 1; 1 Younge 407),
319
Smallhouse v. Kentucky, etc., Co. (2
Mont. 443), 359
Smiley v. Citizens', etc., Ins. Co.
(14 W. Va. 33), 805 '
Smiley v. McLauthlin (138 Mass.
363), 277
Smiley v. Western, etc., Gas Co. (27
W. N. C. 238), 183
Smiley v. Western, etc., Co. (138
Pa. St. 576; 27 W. N. C. 230; 21
Atl. Rep. 1), 161, 267
Smith, In re (L. R. 10 Ch. App. 79;
23 W. R. 297), 279
Smith's Appeal (69 Pa. St. 474),
91
Smith V. Boston Gaslight Co. (129
Mass. 318), 686, 697, 702, 707,
713, 715, 723, 731, 750, 758
Smith V. Blinker (17 Mo. 148), 238
Smith V. Capitol Gas Co. ( 132 Cal.
209; 64 Fa.-\ Rep. 258), 577, 586,
607, 627
Smith V. Citizens', etc., Co. ( 5 W. N.
C. 97), 845
Smith V. Commonwealth ( 14 Bush.
(Ky.) 31; 29 Am. Rep. 402), 633
Smith V. Cooky (65 Cal. 46; 2 Pac.
Rep. 880), 51, 299, 342, 344
Smith V. German Ins. Co. (107
Mich. 270; 65 X. W. Rep. 236),
811, 820
Smith V. Goldsboro (121 N. C. 350;
28 S. E. ReiJ. 479), 548
Smith V. Harrison (42 Ohio St.
180), 233
Smith V. Holloway (124 Ind. 329;
24 N. E. Rep. 886), 333
Smith V. Jeyes (4 Beav. 503), 338,
339
Smith V. Jones (21 Utah 270; 60
Pac. Rep. 1104), 81
Smith V. Lincoln (170 Mass. 488;
49 N. E. Rep. 640), 514
Smith V. London Gas Co. ( 7 Grant
(N. C.) 112), 612
Smith V. Metropolitan Ga.slight Co.
(12 How. Pr. 187), 516
Smith V. Miller (49 N. J. L. 521 ; 13
Atl. Rep. 39), 182
Smith V. Munhall (139 Pa. St. 253;
21 Atl. Rep. 735), 169, 262
Smith V. Nashville (88 Tenn. 464;
12 S. W. Rep. 924), 561
Smith V. Pawtucket Gas Co. (25 R.
S. — ; 52 Atl. Rep. 1078), 707,
728
TABLE OF CASES.
(References are to pages: )
Smith V. Rome (19 Ga. 89), 333
Smith V. Scranton Gas & Water Co.
(5 Lack. Leg. N. 235), 607, 610
Smith V. Westerly (19 R. I. 437;
35 Atl. Rep. 526), 488. 491, 499
Smyth V. Ames (169 U. S. 524),
431
Smyth V. Sturges (108 N. Y. 495;
15 N. E. Rep. 544, affirming 30
Hun 89), 635, 636
Snell's Case (J.. R. 5 Ch. App. 22).
352
Snoddy v. Bolcn (122 Mo. 479; 24
S. W. Rep. 142; 25 S. E. Rep.
932), 83, 329, 334
Snodgiass v. South Penn Oil Co.
(47 W. Va. 509; 35 S. E. Rep.
820). 90. 115, 188, 265
Snow V. Nelson (113 Fed. Rep. 353),
90
Snyder v. Burnham (77 Mo. 52),
339
Snyder v. Dwelling House Ins. Co.
(59 N. J. L. 544; 37 Atl. Rep,
1022, reversing 34 Atl. Rep. 931),
801, 811
Socala V. Chess Carley Co. (30 La.
Ann. 344; 1 So. Rep. 824), 778
Somerset v. Smith (20 Ky. Law
Rep. 1488; 49 S. W. Rep. 456),
453
Soule V. San Francisco (54 Cal.
241), 549
South Heton Coal Co. v. Haswell
Coal Co. ([1898] 1 Ch. 465; 67
L. J. Ch. 238; 78 L. T. 366; 46
W. R. 355), 316
South Penn Oil Co. v. Mclntire
(44 W. Va. 296; 28 S. E. Rep.
922), 5L 72, 280
South Penn Oil Co. v. Stone (57 S.
E. Rep. (W^ Va.) 374), 103, 191
South Side Gas Co. v. Southern Il-
luminating Co. (18, Pa. Co. Ct.
529), 483, 528 ^
Southerland v. Heathcote ([1892]
Ch. 504), 105
Southern Illuminating Co., In re
(5 Pa. Dist. 781), 459, 482, 483,
527
Southern Oil, Langabough v. Ander-
son (22 Ohio Cir. C. Rep. 178; 12
Ohio C. D. 341), 682
Southwestern, etc., Co. v. Joplin
(113 Fed. Rep. 817), 454, 462,
420, 497, 499, 538
Southern Oil Co. v. Wilson ( 22 Tex.
Civ. App. 534; 56 S. W. Rep.
429), 169. 217
Sparks v. Pittsburgh Co. ( 159 Pa.
St. 295; 28 Atl. Rep. 152), 143
Spratt V. South Metropolitan Gas
Co. (7 Gas J. 663), 576, 602
Spaulding v. Hallenbeck (35 N. Y.
204). 102
Spaulding v. Peabody (153 Mass.
129; 26 X. E. Rep. 421; 10 L. R.
A. 397), 562
Spencer v. Austin (38 Vt. 258), 251
Sperry v. Insurance Co. (22 Fed.
Rep. 516), 796
Sperry v. Springfield, etc., Ins. Co.
(26 Fed. Rep. 234; 15 Ins. L. Jr.
270). 800, 810
Spilman v. Parkersburg (35 W. Va.
605; 14 S. E. Rep. 279), 450, 567
Springer v. Citizens', etc.. Gas Co.
(145 Pa. St. 430; 22 Atl. Rep.
986), 131, 183, 186, 222, 232, 271
Springer v. Gas Co. (145 Pa. St.
430; 22 Atl. Rep. 986), 109
Springer v. National Gas Co. (145
Pa. St. 430; 22 Atl. Rep. 986),
212
Springfield v. Edwards (84 111.
626), 451
Springfield Foundry, etc., Co. v. Cole
(130 Mo. 1; 31 S. W. Rep. 922,
reversing 57 ]\Io. App. 11). 63.
359
Springfield, etc.. Co. v. Cole (130
Mo. 1; 31 S. W. Rep. 922), 75,
640
Spring Brook, etc., Co. v. Schadt
Co. (3 Lack. L. News 170), 838
TABLE OF CASES.
(References are to pages.)
Spring Valley Water Works Co. v.
Barber (99 Cal. 36; 33 Pae. Rep.
735; 21 L. R. A. 416), 838
Spring Valley W. W. v. Bartlett
(63 Cal. 245), 432
Spring Valley W. W. v. Bartlett
(16 Fed. Rep. 615), 443
Spring Valley W. W. v. Bryant
(52 Cal. 132), 431
Spring Valley W. W. v. San Fran-
cisco (61 Cal. 3), 443
Spring Valley W. W. v. San Fran-
cisco (82 Cal. 286; 22 Pac. Rep.
910, 1046; 6 L. R. A. 756; 16 Am.
St. Rep. 116), 428, 431, 432, 618,
626
Spring Valley W. W. Co. v. San
Francisco (110 U. S. 353; 4 Sup.
Ct. Rep. 48), 618, 619
Spring Valley W. W. v. Schottler
(110 U. S. 347; 4 Sup. Ct. Rep.
48), 440, 443
St. Anthony Falls Water Power Co.
V. Board (168 U. S. 349; 18 Sup.
Ct. Rep. 157), 492
St. Clair Coal Co, v. Martz ( 75 Pa.
St. 384), 359
St. Helen's Smelting Co. v. Tipping
(11 H. L. Cas. 642; 35 L. J. Q. B.
66; 11 Jur. (N. S.) 785; 12 L. T.
(N. S.) 775; 13 W. R. 1083), 663
St. Jolin V. American, etc., Ins. Co.
(11 N. Y. 516; 1 Duer 371; 3
Benn. Fire Ins. Cas. 760), 804
St. John Gas Co. v. Clarke (17 N.
B. 307), 622
St. Joseph Hydraulic Co. v. Wilson
(133 Ind. 465; 33 K E. Rep.
113), 608, 610
St. Louis V. Arnot (94 Mo. 275;
7 S. W. Rep. 15), 430
St. Louis V. Gaslight Co. (5 Mo.
App. 484), 480
St. Louis V. Jackson (25 Mo. 37),
488
St. Louis V. St. Louis Gaslight Co.
(70 Mo. 69, reversing 5 Mo. App.
484), 484, 536, 568, 577
St. Louis V. Weber (44 Mo. 547),
488
St. Louis V. Western U. Tel. Co.
(148 U. S. 92), 444
St. Louis Brewing Assn. v. St.
Louis (37 S. W. Rep. (Mo.) 525),
580, 604
St. Louis Gaslight Co. v. St. Louis,
etc., Co. (16 Mo. App. 52), 494
St. Louis Gaslight Co. v. St. Louis
(11 Mo. App. 55; 84 Mo. 202),
625
St. Louis Gaslight Co. v. St. Louis
(46 Mo. 121), 484, 463
St. Louis Gaslight Co. v. St. Louis
(86 Mo. 495, affirming 11 Mo.
App. 55), 472, 473
St. Marys Gas Co. v. Elk Co. (191
Pa. St. 458; 43 Atl. Rep. 321),
838
St. Mary's Woolen Mfg. Co. v. Brad-
ford Glycerine Co. (14 Ohio Cir.
C. Rep. 522), 685
St. Paul Trust Co. v. Mintzer (65
Minn. 124; 67 N. W. Rep. 657;
32 L. R. A. 756), 291
St. Tammany W. W. Co. v. New Or-
leans W. W. Co. (120 U. S. 64;
7 Sup. Ct. Rep. 405; 14 Fed. Rep.
194), 493, 494, 497
Stage V. Boyer (183 Pa. St. 560; 38
Atl. Rep. 1035), 68, 83, 165, 213
Stahl V. Van ^Heck (53 Ohio St.
136; 41 N. E. Rep. 35; 33 W'kly.
L. Bull. 335), 86, 95, 96, 126, 129,
142, 167, 168, 215
Standard Oil Co. v. Danville (199
111. .50; 04 N. E. Rep. 1110, af-
firming 101 111. App. 65). 419
Standard Oil Co. v. Lane (75 Wis.
636; 44 N. W. Rep. 644; 7 L. R.
A. 191), 353
Standard Oil Co. v. Sowden (55
Ohio St. 332; 45 N. E. Rep. 320;
36 Wkly. L. Bull. 306; 37 Wkly.
L. Bull. 3), 356, 361
TABLE OF CASES.
(References are to pages.)
Standard Oil Co. v. Swan (89 Tenn.
434; 14 S. W. Rep. 928; 15 S. W.
Rep. 1068; 10 L. R. A. 360), 779
Standard Oil Co. v. Tierney (92 Ky.
367; 17 S. W. Rep. 1025; 14 L. R.
A. 677; 13 Ky. L. Rep. 626), 405
Standard Oil Co. v. Tierney (95 Ky.
633; 96 Ky. 89; 27 S. W. Rep.
983), 405
Stanley v. Western, etc., Co. (L. R.
3 Exch. 71; 37 L. J. Exch. 73;
17 L. T. (X. S.) 513; 10 W. R.
369), 800
Staples V. Dickson (88 Me. 362; 34
Atl. Rep. 168), 547
State V. Berdetta (73 Ind. 185; 20
Am. Law Reg. 342; 38 Am. Rep.
117), 334, 512, 513, 514
State V. Berry (52 N. J. L. 308; 19
Atl. Rep. 665), 649
State V. Boyce (43 Ohio St. 46; 1
N. E. Rep. 17), 524
State V. Butte City Water Co. (18
Mont. 199; 44 Pac. Rep. 966; 32
L. R. A. 697; 56 Am. St. Rep.
574; 4 Am. and Eng. Corp. Cas.
(N. S.) 238), 577, 579. 593, 594
State V. Burt (64 N. C. 619), 42
State V. Cincinnati Gaslight & Coke
Co. (18 Ohio St. 262), 428, 431,
434, 488, 499. 505, 540
State V. Cleveland, etc.. Co. (3 Ohio
Cir. Ct. 251), 440
State V. Columbus Gaslight, etc.,
Co. (.34 Ohio St. 572; 32 Am.
Rep. 390), 426. 440, 540, 618, 625
State V. Consolidated Gas Co. (85
Md. 637; 37 Atl. Rep. 263), 690,
697, 704, 707, 710, 758
State V. Consumers' Gas Trust Co.
(157 Ind. 345; 61 N. E. Rep. 674;
55 L. R. A. 245), 577, 581, 585,
586, 596
State V. Coosaw Mining Co. (47
Fed. Rep. 225). 83 f
State V. Fangboner (14 Ohio Cir. Ct.
Rep. 104; 7 Ohio Dec. 334), 836
State V. Frazier (28 Ind. 196), 512
State V. Goswell (93 N. W. Rep.
(Wis.) 542), 604, 026
State V. Great Falls (19 Mont. 518;
49 Pac. Rep. 15), 476, 502, 508
State V. Hamilton (47 Ohio St. 52;
23 N. E. Rep. 935; 29 Am. and
Eng. Corp. Cas. 208), 496, 558
State V. Harrison (46 N. J. L. 79),
453
State V. Hayes (78 Mo. 307), 53
State V. Indiana, etc., Co. (120 Ind.
575; 22 N. E. Rep. 778; 29 Am.
and Eng. Corp. Cas. 237 ; 6 L. R.
A. 579), 53, 383, 384, 385, 389,
415
State V. Ironton Gas Co. (37 Ohio
St. 45), 425, 431, 452
State V. Janesville, etc., Co. (92
Wis. 496; 66 N. W. Rep. 512),
540, 541
State V. Jersey City (45 N. J. L.
246; 2 Am. and Eng. Corp. Cas.
233), 618
State V. Joplin W. W. ( 52 Mo. App.
312), 626
State V. Kearney (49 Neb. 337; 70
N. W. Rep. 255; 49 Neb. 325; 68
N. W. Rep. 533), 470
State V. Laclede Gaslight Co. (102
Mo. 472; 22 Am. St. Rep. 789; 34
Am. and Eng. Corp. Cas. 49; 14
S. W. Rep. 974; 15 S. W. Rep.
383), 459, 508, 527, 535, 538, 420,
422, 427
State V. Le^y (.36 La. Ann. 491),
612
State V. Low (46 W. Va. 451; 33
S. E. Rep. 271), 840
State V. Mathis (21 Ind. 277), 512
State V. McCauley (15 Cal. 429),
450
State V. McGough (118 Ala. 159;
24 So. Rep. 395), 419
State V. Milwaukee Gaslight Co.
(29 Wis. 454; 9 z^m. Rep. 598),
446. 479. 541
State V. Moore (12 Cal. 56), 839
TABLE OF CASES.
(References are to pages.)
State V. Moore (27 Ind. App. 83;
60 N. E. Rep. 955), 417
State V. Murphy (170 U. S. 78; 18
Sup. Ct. Rep. 505), 528, 531, 533
State V. New Orleans, etc., Co. (2
Rob. (La.) 529), 540
State V. New Orleans, etc., Co. (32
So. Rep. (La.) 179), 583, 584,
585, 592, 595, 615
State V. Oak Harbor Gas Co. (18
Ohio Cir. Ct. Rep. 751; 4 Ohio
Cir. Ct. Dec. 158, affirmed 53 Ohio
St. 347; 41 N. E. Rep. 584), 417
State V. Oak Harbor Gas Co. (53
Ohio St. 347; 41 N. E. Rep. 584,
reversing 34 Wkly. L. Bull. 221;
18 Ohio C. Ct. Rep. 751; 1 Toledo
Leg. News 158), 55
State V. Ohio Oil Co. (150 Ind.
21; 49 N. E. Rep. 809; 47 L. R.
A. 627), 33, 34, 39, 55, 417, 418
State V. Parker (61 Tex. 265), 331
State V. Payne (129 Mo. 468; 31 S.
W. Rep. 797; 33 L. R. A. 576),
528, 535
State V. Portland Natural Gas & Oil
Co. (153 Ind. 483; 53 N. E. Rep.
1089; 53 L. R. A. 413; 74 Am.
St. Rep. 314). 503
State V. Quayle (71 Pac. Rep.
(Utah) 1060). 450
State V. Rodman (58 Minn. 393;
59 N. W. Rep. 1098), 38
State V. Sedalia Gaslight Co. (34
Mo. App. 501; 84 Mo. 202), 596,
618, 625
State V. St. Louis (145 Mo. 551; 46
S. W. Rep. 981), 488, 513, 533
State V. State Board (57 N. J. L.
516; 31 Atl. Rep. 220; 27 L. R.
A. 084). 837
State V. Toledo (48 Ohio St. 112;
20 N. E. Rep. 1061; 11 L. R. A.
729), 559
State V. Weatherby (45 Mo. 17),
519
State V. Wellman (34 Minn. 221),
843
State V. Wilkinson (2 Vt. 480),
512
State V. Wilson (42 Me. 9), 329
State National Bank v. Butler (149
111. 575; 36 N. E. Rep. 1000,
reversing 48 111. App. 648), 338,
339
Stearns v. Harris (8 Allen 597),
199
Steelsmith v. Fisher Oil Co. (47 W.
Va. 391; 35 S. E. Rep. 15), 126
Steelsmith v. Gartlan (45 W. Va.
27; 29 S. E. Rep. 978; 44 L. R.
A. 107), 68, 90, 93, 98, 99, 107,
115, 124, 129, 145, 163, 166, 167,
168, 250
Steger v. Arctic Refrigerator Co.
(89 Tenn. 453; 14 So. Rep. 1087;
11 L. R. A. 580), 363
Stein V. Bienville Water Supply Co.
(34 Fed. Rep. 145, affirmed 141
U. S. 67; 11 Sup. Ct. Rep. 892),
460, 490
Steinau v. Cincinnati Gaslight &
Coke Co. (48 Ohio St. 324; 27 N.
E. Rep. 545, reversing 2 Ohio Cir.
Ct. Rep. 286), 615
Steinbach v. Lafayette Ins. Co. (54
N. Y. 90), 810
Steinbach v. Relief Ins. Co. (77 N.
Y. 498, affirmed 13 Wall. 183),
810
Steiner v. Marks (172 Pa. St. 400;
33 Atl. Rep. 695), 193, 214
Sterling's Appeal (111 Pa. St. 35;
2 Atl. Rep. 105; 2 Cent. Rep.
49), 391, 491, 501, 529, 552
Stetson v. Kempton (13 Mass. 272),
563
Stevens v. Guffey (3 Russ. 171 ; 6 L.
J. (0. S.) 164). 317
Stewart v. Long Island Ry. Co. (102
N. Y. 601). 231
Steward v. Wolveridge (9 Bing. 60),
244
Stimmel v. Water (2 Bush. 282),
246, 247
TABLE OF CASES.
(References are to pages.)
Stinson v. Hardy (27 Ore. 584; 41
Pac. Rep. 116), 359
Stock V. Boston (149 Mass. 410;
21 N. E. Rep. 871), 591
Stockbridge Iron Co. v. Hudson
Iron Co. (107 Mass. 290), 105
Stockport W. W. Co. v. Potter (7 H.
& N. 160; 7 Jur. (X. S.) 880; 31
L. J. Exch. 9), 653
Stockton V. Stockton (40 Ind. 225),
172
Stoddard v. Emery (128 Pa. St.
436; 24 W. X. C. 566; 18 Atl.
Rep. 339), 107, 115, 128, 230
Stone V. Boston, etc., Ry. (171 Mass.
536; 51 X. E. Rep. 1, 41 L. R. A.
794), 409
Stoughton's Appeal (88 Pa. St.
198), 32, 33, 42, 51, 72, 279, 280
Stoughton V. Leigh (1 Taunt. 402,
410), 288, 290, 294, 295
Stout V. Commercial, etc., Ins. Co.
(12 Fed. Rep. 554; 11 Biss. 309;
11 Ins. L. J. 688), 810
Strawbridge v. City of Philadel-
phia (2 Penn. 419), 690
Strawbridge v. Philadelphia (13
Phila. 173; 36 Leg. Int. 276; 13
Rep. 216; 2 Penny. 419), 515,
685. 690, 697, 722
Stryker v. Cassidy (76 X. Y. 50),
358
Stuart V. Adams (89 Cal. 367; 26
Pac. Rep. 970), 338, 344, 349, 351
StuU V. Harris (51 Ark. 294; 11
S. W. Rep. 104), 281
Sturges V. Bidgman (11 Ch. Div.
852; 48 L. J. Ch. 785; 41 L. T.
219; 28 W. R. 200), 063
Sturtevanfs Appeal (34 Pa. St.
149), 369
Suburban Electric, etc., Co. v. East
Orange (41 Atl. ^ep. (X. J.)
865), 481, 535
Suburban, etc.. Co. v. East Orange
(44 Atl. Rep. (N. J.) 628), 518
Suflfern v. Butler (21 N. J. Eq.
410, affirming 4 C. E. Green Ch.
(X. J.) 202), 62, 73
Sufferin v. Butler (4 C. E. Gr. Ch.
(X. J.) 202, affirmed 21 N. J.
Eq. 410), 77
Summer v. Bromilow (34 L. J. Q. B.
130), 647
Sunday Lake Mining Co. v. Wake-
field ( 72 Wis. 264 ; 39 X. W. Rep.
136), 218, 219
Sunnyside Coal Co. v. Reitz ( 14 Ind.
App. 478; 43 X. E. Rep. 46), 49
Superior v. Xorton (63 Fed. Rep.
357), 469
Surcombe v. Pinniger (3 DeG. M. &
G. 571; 22 L. J. Ch. 419), 315
Susquehanna Fertilizer Co. v. Spang-
ler (86 Md. 562; 39 Atl. Rep.
270), 664
Svea, etc., Co. v. Packham (92 Md.
464; 48 Atl. Rep. 359; 52 L. R,
A. 95), 827
Swearinger v. Steers (49 W^. Va.
312; 38 S. E. Rep. 510), 277
Swint V. McCalmont Oil Co.
(184 Pa. St. 202; 41 W. X. C.
491; 38 Atl. Rep. 1021), 103, 142,
229, 231, 260. 309
Sydney (27 Fed. Rep. 119, 123),
702
Sylvester v. McCuaig (28 Up. Can.
C. P. 443), 345
Syracuse City Bank v. Tallman (31
Barb. 201 ) , 367
Syracuse Water Co. v. Syracuse
(116 X. Y. 167; 22 X. E. Rep.
381: 5 L. R. A. 546). 492, 496
Tabbart, Ex parte (6 Ves. 428),
279
Tacoma Gas, etc., Co. v. Tacoma ( 14
Wash. 288; 44 Pac. Rep. 655),
434. 439
Tacoma Hotel Co. v. Tacoma, etc.,
Co. (3 Wash. St. 316; 28 Pac.
Rep. 516), 600, 607, 610
TABLE OF CASES.
(References are to pages.)
Taliaferro v. Gay (78 Ky. 496),
367
Tampa v. Tampa W. W. Co. (34 So.
Rep. (Fla.) 631), 434, 438, 440,
524, 528
Tanneit v. Ins. Co. (34 La.
Ann. 249), 805
Tarry town, etc.. Gaslight Co. v. Bird
(65 Hun 621; 19 N. Y. Supp.
988), 622, 623
Tarrytown v. Pocontico W. W. Co.
(1 N. Y. Supp. 394), 518
Taylor v. Baldwin (78 Cal. 517; 21
Pac. Rep. 124), 733
Taylor v. Castle (42 Cal. 367), 342,
347
Taylor v. Evans ( 1 H. & N. 101; 25
L. J. Exch. 269), 272
Taylor v. Fried (161 Pa. St. 53;
28 Atl. Rep. 993), 307, 342
Taylor v. Lambertville ( 10 Atl. Rep.
(N. J.) 809), 447. 453, 455, 456,
469
Taylor v. Mostyn (23 Ch. Div. 583;
53 L. J. Ch. 89; 49 L. T. 483;
32 W. R. 256), 373, 378, 380
Taylor v. Mostyn (33 Ch. Div. 226),
372, 373
Taylor v. Peerless Refining Co. ( 7
Ohio Dec. 368; 14 Ohio C. C.
315), 52, 156
Taylor v. Watkins (62 Ind. 511),
630
Teaff V. Hewitt (1 Ohio St. 511,
530), 629
Tenant v. Goldwin (1 Salk. 21, 360;
2 Ld. Raym. 1089), 674
Tennessee, etc., Co. v. Hamilton ( 100
Ala. 252; 14 So. Rep. 167), 654
Terre Haute Gas Co. v. Teel (20
Ind. 131), 672
Terstegge v. First German, etc., Co.
(92 Ind. 82). 172
Tliackarah v. Haas (119 U. S. 499;
7 Sup. Ct. Rep. 311), 174
Theriot v. Michel (28 La. Ann. 107),
346
Thistlewaite v. State (149 Ind. 319;
39 N. E. Rep. 156), 599
Thomas v. Brackney (17 Barb. 654),
664
Thomas, etc., Co. v. Herter (60 111.
App. 58), 49
Thomas v. Hukill (34 W. Va. 385:
12 S. E. Rep. 522), 154, 183, 201
Tliomas v. Hurst (73 Fed. Rep.
372), 327
Tliomas v. Kirkbride (15 Ohio Cir.
Ct. Rep. 294; 8 Ohio Dec. 181),
199, 202, 209
Thomas v. Marble, etc., Co. (58 Fed.
Rep. 485), 121
Thomas v. Railroad Co. 101 U. S.
71), 527
Thomas v. Smith (42 Pa. St. 68),
359
Thompson's Appeal (101 Pa. St.
225). 81
Thompson v. Bowman (6 Wall.
316), 346
Thompson v. Christie (138 Pa. St.
230; 27 W. N. C. 87; 20 Atl.
Rep. 934; 11 L. R. A. 236), 103,
104, 193, 197, 200, 202. 218, 224
Thompson v. Mattern (115 Pa. St.
501; 9 Atl. Rep. 70), 334
Thompson v. Nemeyer (59 Ohio St.
486; 52 N. E. Rep. 1024), 571
Thompson v. Newton (7 Atl. Rep.
(Pa.) 64), 304, 307
Thompson v. Noble (3 Pittsb. 201;
17 Pittsb. L. Jr. 45), 32
Thompson v. People (23 Wend. 537,
579), 519
Thompson Glass Co. v. Fayette Fuel
Co. (137 Pa. St. 317; 21 Atl. Rep.
93), 610
Tliomson-Houston Electric Co. v.
Newton (42 Fed. Rep. 723), 561
Thorn v. East London W. W. Co.
(66 Gas J. 189). 588, 600
Thorn v. Sutherland (123 N. Y.
236; 25 N. E. Rep. 362, reversing
4 N. Y. 694), 639
TABLE OF CASES.
(References are to pages.)
Thorneycroft v. Crockett (16 Sims.
445; 2 H. L. Cas. 239; 12 Jur.
1081), 371, 372, 374, 376
Thunder v. Belcher (3 East. 449),
367
Tidewater Pipe Line Co. v. Berry
(53 N. J. L. 212; 21 All. Rep.
490), 833
Tiehr v. Consolidated Gas Co. (51
N. Y. App. Div. 446; 65 N. Y.
Supp. 10), 699, 702, 706, 767
Tift V. Horton (53 N. Y. 377), 631
Tiley v. Moyers (43 Pa. St. 404),
268
Tilly V. Slough Gas & Coke Co. (17
Gas J. 231), 667
Timlin v. Brown (158 Pa. St. 606;
28 Atl. Rep. 236), 162
Tipping V. Robbins (64 Wis. 546;
25 N. W. Rep. 713), 80, 297
Tipping V. Robbins (71 Wis. 507;
37 N. W. Rep. 427), 63, 80. 297
Tipton-Green Colliery Co. v. Tipton
Moat Co. (7 Ch. Div. 192; 47 L.
J. Ch. 152; 26 W. R. 348), 372
Tipton Light, etc., Co. v. Newcomer
(67 N. E. Rep. (Ind. App.) 548),
735, 743
Titusville Novelty Iron Works' Ap-
peal (77 Pa. St. 103). 642
Titusville Iron Works v. Keystone
Oil Co. (130 Pa. St. 211; 18 Atl.
Rep. 739), 364
Toledo V. Hosier (54 Ohio St. 418;
43 N. E. Rep. 583; 35 Ohio L.
J. 215), 835, 838
Toledo V. N. W. Ohio Natural Gas
Co. (5 Ohio C. C. 557; 3 Ohio
Cir. D. 273), 424, 426, 431, 440,
586, 621
Toledo V. N. W. Ohio, etc., Co. (8
Ohio S. and C. P. Dec. 277; 6
Ohio N. P. 531; 5 Ohio Cir. Ct.
Rep. 557), 424, ^28, 434, 597,
598
Tousley v. Galena, etc., Co. (24 Kan.
328), 333, 334
Towne v. Fiske (127 Mass. 125;
34 Am. Rep. 353), 633
Townsend v. Brown (24 N. J. L.
80), 528
Townsend v. State (147 Ind. 624;
47 N. E. Rep. 19; 37 L. R. A.
294; 62 Am. St. Rep. 477), 33.
34, 35, 45, 418
Townsend Gas, etc., Co. v. Port
Townsend (19 Wash. 407; 53 Pac.
Rep. 551), 559
Traders' Ins. Co. v. Catlin ( 163 111.
256; 45 N. E. Rep. 255, reversing
59 111. App. 162), 801, 809
Traders' Ins. Co. v. Race (142 111.
338; 31 N. E. Rep. 392), 801,
827
Trans-Atlantic Fire Ins. Co. v. Dor-
sey (56 Md. 70), 805
Traverse City Gas Co. v. Traverse
City (89 N. W. Rep. (Mich.)
574), 420, 531. 533
Travellers' Ins. Co. v. Dunlap ( 160
111. 642; 43 N. E. Rep. 765, af-
firming 59 111. App. 515), 829
Tredinnick v. Red Cloud, etc., Co.
(72 Cal. 78; 13 Pac. Rep. 152),
362
Tiedwen v. Bourne (6 M. & W. 461;
9 L. J. (N. S.) Exch. 290; 4
Jur. 747) , 348
Trees v. Eclipse Oil Co. (47 W. Va.
107; 34 S. E. Rep. 933), 84, 90,
120, 303. 308, 366
Trent v. Hunt (9 Exch. 14, 22),
360
Triple, etc., Co. v. Wellman (70 S.
W. Rep. (Ky.) 49; 24 Ky. Law
Rep. 851), 682. 685, 691, 738
Truby v. Palmer (4 Cent. Rep.
(Pa.) 925; G Atl. Rep. 74; 136
Pa. St. 556; 20 Atl. Rep. 510),
136. 198
Truman v. Truman (79 la. 506; 44
N. W. Rep. 721). 315
Trust V. Miami Oil Co. (10 Ohio
D. 372; 19 Ohio C. C. Rep. 727),
361
TABLE OF CASES.
(References are to pages.)
Trustees of School v. Schroll (120
111. 509; 12 N. E. Rep. 243), 93
Trustees, etc., v. Williamson (26 Pa.
St. 196), 801
Tubb V. Liverpool, etc., Ins. Co.
(106 Ala. 651; 17 So. Rep. 615),
809, 815
Tugman v. Cliicago (78 111. 405),
488
Tullit V. Tullit (Anib. 370), 279
Tunbridge Wells Corporation v.
Baird ([1896] App. Cas. 434; 65
L. J. Q. B. 451; 74 L. T. 385; 60
J. P. 788), 517
Turnbull v. Home Fire Ins. Co. (83
Md. 312; 34 Atl. Rep. 875), 825
Turner v. Revere Water Co. (171
Mass. 329; 50 N. E. Rep. 634).
607, 608
Twin Lick Oil Co. v. Marbury (91
U. S. 593), 69, 92, 145, 146, 147
Tyner v. People's Gas Co. (131 Ind.
408; 31 N. E. Rep. 61), 136
Tyrone Gas & Water Co. v. Tyrone
(195 Pa. St. 566; 46 Atl. Rep.
134), 481, 497
U
Uhl V. Ohio River Ry. Co. (47 W.
Va. 59; 34 S. E. Rep. 934), 395
L^nion Coal Co. v. City of La Salle
(1.36 111. 119; 26 N. E. Rep. 506;
12 L. R. A. 326), 333
Union Ferry Co., In re (98 N. Y.
139), 509
Union Oil Co.,' 7n re (25 Land Dec.
351; 23 L. D. 222), 55
Inion Oil Co. (25 Land Dee. 351),
3.30
Lnion Oil Co.'s Appeal (3 Penny.
(Pa.) 504), 261
Union Petroleum Co. v. Bliven Pe-
troleum Co. (72 Pa. St. 173), 72,
106
United Electric Light, etc., Co. v.
Beneman (46 N. Y. Supp. 916; 21
N. Y. Misc. 41), 614
United Life Ins. Co. v. Foote (22
Ohio St. 340; 2 Ins. L. Jr. 190),
805
United Merthyr Coal Co., In re (L.
R. 15 Eq. 46; 21 W. R. 117), 49
United Mines Co. v. Hatcher (79
Fed. Rep. 517; 25 C. C. A. 46).
359, 361
United Oil Co. v. Roseberry (69
Pac. Rep. (Cal.) 588), 707, 709,
713, 728
United Pipe Line Co. v. Delaware,
etc., Ry. Co. (62 N. J. L. 254;
41 Atl. Rep. 759; 42 L. R. A.
572), 394
United States v. Buffalo, etc., Co.
(172 U. S. 339; 19 Sup. Ct. Rep.
200, affirming 78 Fed. Rep. 110;
45 U. S. App. ,345; 24 C. C. A.
4), 55
United States v. Dermitt (8 Wall.
41), 419
United States v. New Orleans R. R.
(12 Wall. 362), 631
United States Canal, etc., Co. v.
Randolph County Board (38 W.
Va. 201; 18 S. E. Rep. 566), 841
United States, etc., Co. v. Metro-
politan Club (6 App. D. C. 536),
612
United States, etc., Co. v. Newman
(84 Va. -52; 3 S. E. Rep. 805),
830
United Water Works Co. v. Omaha
Water Co. (21 N. Y. Misc. 594;
48 N. Y. Supp. 817), 390
United States W. W. Co. v. Du
Bois (176 Pa. St. 439; 38 W. N.
C. 419; 35 AU. Rep. 251), 460
University of Vermont v. Joslyn (21
Vt. 52), 238
Upington v. Corringan (151 N. Y.
143; 45 N. E. Rep. 359), 186
V
Vail V. Weaver (132 Pa. St. 363; 19
Atl. Rep. 138), 636
TABLE OF CASES.
(References are to pages.)
Vallee es Qualite v. New City Gas
Co. (7 Am. Law. Rev. 767), 708,
749, 750
Valparaiso v. Gardner (97 Ind. 1;
49 Am. Rep. 416), 450. 468. 509
Vandergrift's Appeal (83 Pa. St.
126), 360
Vanderlin v. Hovis (152 Pa. St. 11;
25 Atl. Rep. 232). 101
Vandevoort v. Dewey (42 Hun 68),
189
Van Meter v. Chicago, etc., Co. (88
la. 92; 55 N. W. Rep. 106), 163
Van Rensselaer v. Hayes (19 N. Y.
68; 75 Am. Dec. 278), 229
Van Voorhis v. Oliver (22 Pittsb.
L. J. (N. S.) 114), 87, 187
Van Wickley v. Paulson ( 14 Barb.
654), 251
Vaughen v. Haldeman (33 Pa. St.
522; 75 Am. Dec. 622), 632
Venture Oil Co. v. Fretts (152 Pa.
St. 451; 25 Atl. Rep. 732), 68,
115. 129, 148. 104, 283
Verdolite Co, v. Richards (7 North
Co. Rep. (Pa.) 113). 194
Vervalen v. Older (4 Halst. (N, J.)
Ch. 98), 370, 371
Vestry of St, Mary v. County, etc,
Co, ([1899] 1 Ch, 474; 68 L, J.
Ch, 238; 80 L. T. 31; 15 T, L,
Rep. 175), 517
Vickerman v. Leeds, etc., Co. (15
Gas J. 654), 718, 723
Victoria Docks Gas Co. v. Burton
(16 Gas J. 103). 620, 623
Viele V, Germania Ins. Co, (26 la.
9; 96 Am. Dec. 83), 817
Vietti V. Nesbitt (22 Nev. 390; 41
Pac. Rep. 151), 340
Vincennes v. Citizens' Gaslight Co,
(1.32 Ind. 114; 31 N. E. Rep. 573;
16 L. R. A. 485), 456, 490, 509
Viner v. Vaughan (2 Beav, 466),
288 *"
Virginia City Gas Co, v, Virginia
City (3 Nev. 320), 468
Virginia Coal Co. v. Kelley (93 Va.
332; 24 S. E. Rep. 1820), 306
Visalia Gas, etc., Co. v. Sims (104
Cal. 326; 37 Pac. Rep. 1042),
527
Voorhis v. Freeman (2 Watts. & S.
116; 37 Am. Dec. 490), 632
Vosbeck v, Kellog (80 N. W. Rep.
(Minn.) 957), 754
W
Waddington v. Allegheny Heating
Co. (6 Pa. Co. Ct. Rep. 96), 428,
434
Wagner v, H. W. Jayne Chemical
Co. (147 Pa. St. 475; 29 W. N.
C. 490; 23 Atl. Rep. 772), 721,
736, 759
Wagner v. Mallory (41 N. Y. App.
Div. 126; 58 N. Y. Supp. 526),
165
Wagner v, Mallory (169 N, Y. 501 ;
62 N. E. Rep. 584, affirming 58 N.
Y. Supp. 526), 42, 49, 75, 78, 79,
230
Wagner v. Rook Island (146 111.
139; 34 N. E. Rep. 545; 21 L. R.
A. 519), 835
WagstaflF v. Lowerre (23 Barb. 209),
252
Wake V. Hall (7 Q. B. Div. 295; 8
App. Cas. 195), 640
Wakefield v, Sunday Lake, etc, Co,
(85 Mich, 605; 49 N, W, Rep.
135), 195, 200, 210
Waldeck v. Springfield, etc, Ins. Co.
(56 Wis. 96: 14 N. W. Rep. 1;
12 Ins. L. Jr. 177), 804
Walker v, Chicago, etc., R. R. Co.
(71 la. 658; 33 N. W. Rep, 224),
701
Walker v, Jeflfreys (1 Ha. 341; 11
L. J. Ch. 209; 6 Jur. 336), 314
Walker v. Moore (10 B. & C. 416;
8 L. J, (0, S.) K. B, 159), 320
Walker v, Tupper (152 Pa, St. 1;
25 Atl. Rep. 172), 342
TABLE OF CASES.
(References are to pages.)
Wall V. Hinds (4 Gray 256; 64 Am.
Dec. 64), 233, 635, 637, 638, 639
Walla Walla v. Walla Walla Water
Co. (172 U. S. 1; 19 S. Ct. Rep.
77), 420, 421, 444, 488, 489, 492,
495, 499, 531, 538, 541, 675
Wallace v. Jefferson Gas Co. (147
Pa. St. 205; 23 Atl. Rep. 416),
397
Wallace v. Standard Oil Co. (66
Fed. Rep. 260), 781
Wallace v. Travelers' Ins. Co. (54
Kan. 442 ; 38 Pac. Rep. 489 ) , 284
Wallas V. San Jose (29 Cal. 180),
469
Waller v. Davis (59 la. 103; 12 N.
W. Rep. 798), 351
Walter v. Hartvvig (106 Ind. 123;
6 N. E. Rep. 5), 104
Walters v. Morgan (3 DeG. F. & J.
718; 4 L. T. 758), 319
Walters v. Northern Coal Mining
Co. (25 L. J. Ch. (N. S.) 633; 5
DeG. M. & G. 629; 26 L. T. 167;
4 W. R. 140; 2 Jur. (N. S.) 1),
228, 232, 235, 238, 242
Walton V. Cronly (14 Wend. 63),
238, 365
Wandsworth, etc., Co. v. Wright (19
Gas J. 407; 18 W. R. 728), 540
Ward V. Carp River Iron Co. (47
Mich. 65; 10 N. W. Rep. 109),
370, 371
Ward V. Folkstone W. W. Co. (24
Q. B. Div. 334; 59 L. J. M. C.
65; 62 L. T. 321; 38 W. R. 426;
54 J. P. 628), 547
Ward V. Gaslight & Coke Co. (14
Gas J. 915; 15 Gas J. 45, 75; 16
Gas J. 10, 38, 74, 108), 728, 764
Ward V. Walton (4 Ind. 75), 172
Ward V. Ward (40 W. Va. 611; 21
S. E. Rep. 746; 29 L. R. A. 449),
292
Warden v. Watson (93 Mo. 107; 5
S. W. Rep. 605), 77, 97, 329
Ware v. Langmade (9 Ohio C. Ct.
Rep. 85; 6 Ohio C. Dec. 43; 2
Ohio Dec. 116), 94, 119, 125
Warn v. Davis Oil Co. (61 Fed. Rep.
631), 703, 779
Warren v. Ferdinand (9 Allen 357),
277
Warren v. Sohn (112 Ind. 213; 13
N. E. Rep. 863), 362
Warren v. Wilder (20 Gas J. 892),
735
Warren Gaslight Co. v. Pennsylva-
nia Gas Co. (13 Pa. Ct. Rep. 310,
affirmed 161 Pa. St. 510; 29 Atl.
Rep. 101), 501, 529, 530
Warsaw W. W. Co. v. Warsaw (16
N. Y. App. Div. 502; 44 N. Y.
Siipp. 876), 497
Washburn v. Miami, etc., Ins. Co.
(2 Fed. Rep. 633; 2 Flipp. 664;
9 Ins. L. Jr. 68), 805
Washburn v. Artisans' Ins. Co.
(Fed. Cas. No. 17212; 9 Ins. L.
Jr. 68), 805
Washburn v. Fletcher (42 Wis.
152), 95
Washburn v. W^estern Ins. Co. (2
Fed. Rep. 633; Fed. Cas. No.
17216; 9 Ins. L. Jr. 424), 805
Washington, etc., Gas Co. v. John-
son (123 Pa. St. 576; 16 Atl. Rep.
79; 16 Morr. Min. Rep. 165),
231, 233, 235, 239, 245
W^ashington Gaslight Co. v. District
of Columbia (161 U. S. 316; 16
Sup. Ct. Rep. 564; 24 Wash. L.
Rep. 470, affirming 20 D. C. 39),
547. 787
Washington Gaslight Co. v. Eckloff
(22 Wash. L. Rep. 656; 4 App.
D. C. 174), 697, 701
Washington Gaslight Co. v. Eckloff
(7 App. D. C. 372; 22 Wash. L.
Rep. 656; 4 App. D. C. 174), 721,
730, 747, 750
\A'ashington Tp., etc., Co. v. McCor-
mick (19 Ind. App. 663; 49 N. E.
Rep. 1085), 726, 727
TABLE OF CASES.
(References are to pages.)
Watauga Water Co. v. Wolfe (99
Tenn. 429; 41 S. W. Rep. 1060),
596
\"\ateiman v. Banks ( 144 U. S. 394 ;
12 Sup. Ct. Rep. 646). 167
W aters v. Merchants', etc., Ins. Co.
(11 Pet. 213), 802
Waters-Pierce Oil Co. v. Davis (24
Tex. Civ. App. 508 ; 60 S. W. Rep.
453), 784
Waters-Pierce Oil Co. v. King (6
Tex. Civ. App. 93; 24 S. W. Rep.
700), 778
Waters-Pierce Oil Co. v. McElroy
(Tex. Civ. App.) (47 S. W. Rep.
272), 419
V\ atson. etc., Co. v. Casteel (73 Ind.
296), 231, 233
Watson v. U. R. & G. Gravel Co.
(50 Mo. App. 635), 296
Watson V. Gas Co. (5 U. P. Q. B.
(Can.) 262), 672, 673
Watt V. Equitable Gas Co. (8 Super.
Ct. (Pa.) 618; 29 Pittsb. L. J.
(N. S.) 221; 43 W. K C. 215),
235
Watts V. Gantt (42 Neb. 869; 61
N. W. Rep. 104), 390
Watts V. Tibbals (6 Pa. St. 447),
42
Way V. Reed (6 Allen 364), 171,
242
Waymart Water Co. v. Wayniart (4
Pa. Super. Ct. 211), 446
W^eaver v. Burr (31 W. Va. 736; 8
S. E. Rep. 743), 92
Webb V. Ohio Gas Fuel Co. (16
Wkly. Law Bull. 121; 9 Ohio
Dec. Rep. 662), 552
Webster v. Harwinton (32 Conn.
131), 563
Weld V. Gaslight Co. (1 Starkie
150). 789
Wellington v. Downej^ Kerosene Co.
(104 Mass. 64), 785, 786
Wells V. Ellis (68 Cal. 243; 9 Pac.
Rep. 80), 346
Wellston V. Morgan (59 Ohio St.
147; 52 N. E. Rep. 127), 453
Welsh V. Beaver Falls (40 Atl.
Rep. (Pa.) 784), 496
Welty V. Wise (5 Ohio N. P. SO),
165
Wentz's Appeal (106 Pa. St. 301),
290, 291
Werner v. Ashland Ligliting Co.
(84 Wis. 652; 54 N. W. Rep.
996), 714
Wesling v. Kroll (78, Wis. 636; 47
N. W. Rep. 943), 193, 216
West v. Bancroft, etc., Co. (158 N.
Y. 231; 52 N. E. Rep. 1092), 548
West Chester Gas Co. v. Chester Co.
(30 Pa. St. 232), 832, 839
West Cumberland Iron Co. v. Ken-
yon (L. R. 11 Ch. Div. 782; 48
L. J. Ch. 793; 40 L. T. 703),
655
\Vest Hartford v. Hartford Water
Comrs. (68 Conn. 323; 36 Atl.
Rep. 786), 582
West, etc., Co. v. Philadelphia (3
Pa. Dist. Rep. 52), 838
West Ridge Coal Co. v. Van Storch
(5 Lack. Leg. N. 189; 7 Del. Co.
Rep. 467), 191, 261
West Shore Mills Co. v. Edwards
(24 Ore. 475; 33 Pac. Rep. 987),
229
\^'est Virginia, etc., Co. v. Ohio
River Pipe Line Co. (22 W. Va.
600), 383
West Virginia, etc., Co. v. Volcanic
Oil & Coal Co. (5 W. Va. 382),
53, 38.3, 388
Westerly W. W. Co. v. Westerly
(75 Fed. Rep. 181; 76 Fed. Rep.
467). 488, 491, 496, 499
Westerly W. W^ Co. v. Westerly
(80 Fed. Rep. 611), 488, 491,
492, 496, 499
Western Penn. Gas Co. v. G«orge
(161 Pa. St. 47; 34 W. N. C. 332;
28 Atl. Rep. 1004), 153, 173, 211
TABLE OF CASES.
(References are to pages.)
Western vSaving Fund Society v.
Philadelpliia (31 Pa St. 175; 72
Am. Dec. 730), 559, 569
Western Paving, etc., Co. v. Citi-
zens', etc., Co. (128 Ind. 525; 26
N. E. Rep. 188; 28 N. E. Rep.
88), 525, 544
Western, etc., Co. v. Rector (85 Ky.
294; 3 S. W'. Rep. 415; 9 Ky. L.
Rep. 3), 822, 823
Western Union Telegraph Co. v.
Massachusetts (125 U. S. 530),
837
Westfield Gas, etc., Co. v. Menden-
hall (142 Ind. 538; 41 N. E. Rep.
1033), 423, 427, 488
Westlake v. St. Louis (77 Mo. 47),
602
Westmoreland Co.'s Appeal (85 Pa.
St. 344), 287
Westmoreland, etc., Co. v. DeWitt
(130 Pa. St. 235; 18 Atl. Rep.
724; 29 Am. L. Reg. 93; 5 L. R.
A. 731), 32, 33, 34, 97, 106, 117,
119, 176, 182, 212, 321, 323
Weston V. Woodcock (7 M. & W.
14), 646
Weston's Case (L. R. 4 Ch. App.
20; 38 L. J. Ch. 49; 19 L. T. 337;
17 W. R. 62), 352,
Wetmore v. Brooklyn Gaslight Co.
(42' N. Y. 384), 549
Wettengel v. Gormley (160 Pa. St.
559; 28 Atl. Rep. 934; 40 Am. St.
Rep. 733), 54. 73, 75, 103, 230,
260
Whallen v. Citizens' Gaslight Co.
(63 N. Y. Rep. 317; 30 N. Y.
Supp. 1077), 788
Wheeler v. Earl (5 Cush. 31), 199
Wheeler v. Philadelphia (77 Pa. St.
338), 558
Wheeler v. Traders' Ins. Co. (1 Atl.
Rep. (N. H.) 293), 807. 822
Wheeler v. West (71 Cal.,126; 11
Pac. Rep. 871), 79, 82
Wheeling Gas Co. v. Wheeling (8
W. Va. 320), 568
Whitaker v. Brown (46 Pa. St.
197), 329
Whitcomb v. Hoyt (30 Pa. St. 403),
160, 168
White V. Meadville' (177 Pa. St.
643; 27 Pittsb. L. J. (N. S.)
97; 39 W. N. C. 102; 35 Atl.
Rep. 695; 34 L. R. A. 567), 482
White V. Wager (25 N. Y. 328),
281
White V. Western, etc., Co. tl8 W.
N. C. (Pa.) 279; 6 Atl. Rep.
113), 801, 807
Whitehouse v. Liverpool, etc., Co.
(5 C. B. 798; 5 M. Gr. & S. 798),
578. 590
Whitfield V. Bewit (2 P. Wms.
240), 289
Whitman v. Fayette Fuel Gas Co.
(139 Pa. St. 492; 20 Atl. Rep.
1062), 255, 592, 612
Whitmarch v. Charter Oak Fire Ins.
Co. (2 Allen 581), 816
Whitmore v. Empson (23 Beav.
313; 26 L. J. Ch. 364), 647
Wichita Gas, etc., Co. v. Wright (9
Kan. App. 730; 59 Pac. Rep.
1085), 729
Wild V. Holt (9 M. & W. 672; 1
D. N. S. 876; 11 L. J. Exch. 285),
49
Wilde V. Waters (16 C. B. 637; 24
L. J. C. P. 193; 1 Jur. (N. S.)
1021), 638
Wilgus V. Whitehead (89 Pa. St.
131), 101. 261
Wilkes-Barre Gas Co. v. Turner (7
Kulp. (Pa.) 399), 583, 612, 621,
836
Wilkes-Barre Light Co. v. Wilkes-
Barre, etc.. Co. (4 Kulp. 47).
491, 530, 501
Wilkins v. Abell (26 Colo. 462;
58 Pac. Rep. 612), 105, 353, 359
Wilkinshurg Gas Co. v. Wilkins-
Inirg (25 L. J. (N. S.) 42), 533
Wilkinson v. Wilkinson (59 W^is.
557; 18 N. W. Rep. 528), 291
TABLE OF CASES.
(References are to pages.)
Killingwoith ( 8 Conn.
Willard v.
247), 563
Willcock V. Crescent Oi], Co. (184
Pa. St. 245; 28 PiUsb. L. J. (N.
S.) 351; 39 Atl. Rep. 77), 844
Willetts V. Brown (42 Hun 140), 64
Willi V. Dryden (52 Mo. 319), 238
Willis V. Perry (92 la,. 297; 60 N.
W. Rep. 727; 26 L. R. A. 124),
300
Wills V. Manufacturers" Natural Gas
Co. (130 Pa. St. 222; 18 Atl. Rep.
721; 5 L. R. A. 603), 181, 183,
224, 266, 277
Williams' Appeal ( 1 Monaghan
(Pa.) 274), 641
Williams v. Augusta (4 Ga. 509
[gunpowder]), 418
Williams v. Bolton (3 P. Wras.
268; 1 Cox Ch. Cas. 72), 292
Williams v. Bosanquet ( 1 Brod. &
Birg. 238), 2.38
Williams v. Gibson (84 Ala. 228;
4 So. Rep. 350), 76, 329
Williams v. Guffey (178 Pa. St.
342; 35 Atl. Rep. 875), 264, 275
Williams v. Ins. Co. (31 Me. 219),
813
Williams v. Insurance Co. (54 N. Y.
569; 13 Am. Rep. 620), 813, 814
Williams v. Kenney (14 Barb. 629),
333
Williams v. Ladew (171 Pa. St.
369; 33 Atl. Rep. 329), 153
Williams v. Lake (2 El. & El. 349;
29 L. J. Q. B. 1; 6 Jur. (N. S.)
45; 1 L. T. 56; 8 W. R. 41), 314
Williams v. Medlicott (8 Price
496), 373
Williams v. Morrison (32 Fed. Rep.
177), 79
Williams v. Mutual Gas Co. (52
Mich. 499; 50 Am. Rep. 266; 18
N. W. Rep. 236; 4 Am. and Eng.
Corp. Cas. 66), 576, §79, 585, 586,
592, 594, 601 *"
Williams \. People's Fire Ins. Co.
(57 N. Y. 274), 801, 808
Williams v. Short (155 Pa. St. 480;
26 Atl. Rep. 662 ) , 232, 327
Williams v. South Penn Oil Co. (43
S. E. Rep. (W. Va.) 214), 97,
297
Williams v. Toledo Coal Co. (25
Ore. 426; 36 Pac. Rep. 159), 356
Williams v. Vanderbilt (145 111.
238; 34 N. E. Rep. 476), 309
Williamson v. Jones (39 W. Va.
231; 19 S. E. Rep. 436; 38 L. R.
A. 694; 43 W. Va. 562; 27 S. E.
Rep. 411), 33, 43, 280, 296, 301,
303, 304, 305, 307, 308, 330
Williamson v. Jones (43 W. Va.
(562; 27 S. E. Rep. 411; 38 L. R.
A. 694; 64 Am. St. Rep. 891), 51,
280, 289, 292, 293
Williamsport Gas Co., In re (17 Pa.
Co. Ct. Rep. 456 ; 2 Lack. L. News
112; 5 Pa. Dist. Rep. 251), 481,
483
Wilson, Ex parte (2 Mont. & Ayr.
61; 4 Dea. & CWt. 143; 4 L. J.
(N. S.) Bank 24), 633. 636
Wilson V. Bogle (95 Tenn. 290; 32
S. W. Rep. 386), 298
Wilson V. Davis (1 Mont. 183),
346
Wilson V. Freeman (7 Wkly. W. N.
C. (Pa.) 33), 632
Wilson V. Goldstein (152 Pa. St.
524; 25 Atl. Rep. 493), 169, 185,
186
Wilson V. Holden (15 Q. B. 533; 19
L. J. Q. B. 73; 14 Jur. 835), 345
Wilson V. Rochester (180 Pa. St.
509; 38 Atl. Rep. 136), 482
Wilson V. Tennent (65 N. Y. Supp.
852. affirmed 61 App. Div. 100; 70
N. Y. St. Rep. 2), 842, 588
Wilson V. Youst (43 W. Va. 826;
28 S. E. Rep. 781; 39 L. R. A.
292), 32, 76, 289
Vv^inans v. Peebles (32 N. Y. 423),
281
Winchester v. Capron (63 N. H.
605), 333
TABLE OF CASKS.
(References are to pages.)
Winchester v. Knight (1 P. Wms.
406), 277
Windfall Mfg. Co. v. Patterson ( 148
Ind. 414; 47 N. E. Rep. 2; 37 L.
R. A. 381; 62 Am. St. Rep. 532),
136, 389, 665, 671, 674, 675
Windfall, etc., Co. v. Tutewiler (152
Ind. 364; 53 N. E. Rep. 284), 389,
394. 649
Winfield v. W infield Gas Co. (37
Kan. 24; 14 Pac. Rep. 499), 446,
466
Winfield v. Winfield Water Co. (51
Kan. 70; 32 Pac. Rep. 663), 461
Winfield Water Co. v. Winfield (51
Kan. 70; 32 Pac. Rep. 663), 474
Winston v. Spokane (12 Wash. 524;
41 Pac. Rep. 888), 450
Winton Coal Co. v. Pancoast Coal
Co. (170 Pa. St. 437; 33 Atl. Rep.
110), 301
Witcher v. Holland Water Works
Co. (66 Hun 619; 20 N. Y. 560,
affirmed 142 N. Y. 626; 37 N. Y.
Rep. 565), 515, 548
Witte V. Western, etc., Ins. Co. (1
Mo. App. 188), 825
Wolf V. Cincinnati, etc., Co. (6 Ohio
Dec. 159), 393
Wolf V. Guffey (161 Pa. St. 276;
28 Atl. Rep. 1117), 200
Wolverhampton R. R. Co. v. Lon-
don, etc., R. R. Co. (L. R. 16
Eq. 433; 43 L. J. Ch. 131), 318
Wolveridge v. Steward ( 1 C. & M.
644; 2 L. J. Exch. 303; 3 Tyr.
637), 235
Womersley v. Church (17 L. T. (N.
S.) 190), 661
Wood V. Auburn (87 Me. 287; 32
Atl. Rep. 906). 609
Wood V. Gaynon ( 1 Amb. 395 ) ,
G40
Wood V. Holly Mfg. Co. (100 Ala.
660; 13 So. Rop. 948). 363
Wood V. Ixjadbitter (13 M. & W.
838), 82
Wood V. Morewood (3 Q. B. 440,
note), 49
Wood V. N. W. Ins. Co. (46 N. Y.
421), 53
Wood V. Wand (3 Exch. 748; 18
L. J. Exch. 305; 13 L. T. 212;
13 Jur. 742), 675
Wood County, etc., Co. v. West Vir-
ginia, etc., Co. (28 W. Va. 210;
57 Am. Rep. 659), 33, 136, 137
Woodard v. Mitchell (140 Ind. 406;
39 N. E. Rep. 437), 208
Woodburn's Estate (138 Pa. St.
606; 21 Atl. Rep. 16), 229, 287,
288, 293
Woodbmn v. Auburn (87 Me. 287;
32 Atl. Rep. 906), 577
Woodland Oil Co. v. Crawford (55
Ohio St. 161; 36 Ohio L. J. 231;
44 N. E. Rep. 1093; 34 L. R. A.
62), 78, 92, 183, 187, 212, 235,
271
Woodman v. Metropolitan, etc., Co.
(149 Mass. 335; 21 N. E. Rep.
482; 4 L. R. A. 213), 754
Woodruff V. Bowen (136 Ind. 431;
34 N. E. Rep. 113), 408
Woods V. Greensboro, etc.. Gas Co.
(54 Atl. Rep. (Pa.) 476), 391
Woodside v. Ciceroni (93 Fed. Rep.
1; 35 C. C. A. 177), 76, 105, 166
Woodward v. Delaware, etc., Co.
(121 Pa. St. 344; 15 Atl. Rep.
622), 839
Worcester Gaslight Co. v. Worcester
(110 Mass. 353), 598
Worksop V. Worksop Gas Co. (22
Gas J. 96), 473
Worrall v. Wilson (101 la. 475;
70 N. W. Rep. 619). 169
Wragg V. Commercial Gas Co. (33
Gas J. 119, 313). 665
Wray v. Evans (80 Pa. St. 102),
788
Wright V. Brosseau (73 111. 381),
351
Wright V. Chicago, etc., Ry. Co. (27
111. App. 200), 410
TABLE OF CASES.
(References are to pages.)
Wright V. Colchester Gas Co. (30
Gas J. 336). 584, 601
Wright V. McDonnell (88 Tex. UO;
30 S. \V. Rep. 907 ) , 639. 644
Wright V. Warrior Run Coal Co.
(182 Pa. St. 514; 41 W. N. C.
179; 9 Kulp. 1; 28 Pittsb. L. J.
(N. S.) 202; 38 Atl. Rep. 491),
258
Wright V. Stears (48 Gas J. 1068),
543
Wyandotte Electric Light Co. v.
Wyandotte (124 Mich. 43; 82 N.
W. Rep. 821), 499
Xenia Real Estate Oo. v. Macy ( 147
Ind. 568; 47 N. E. Rep. 147),
255, 592, 612, 613
"Vater v. Mullen (24 Ind. 277),
630
Yellow River, etc., Co. v. Wood
County (81 Wis. 554; 51 X. W.
Rep. 1004), 833
Yentzer v. Farmers', etc.. Ins. Co.
(200 Pa. St. 325; 49 Atl. Rep.
767). 809
York V. Jones (2 N. H. 454), 277
York, etc., R. R. Co. v. Winans (17
How. 30), 527
Youch V. Home. etc.. Ins. Co. (Ill
Cal. 50.".: 44 Pac. Rep. 189; 34 L.
R. A. 857), 795, 814
\oughiogheny R. Coal Co. v. Pierce
(153 Pa. St. 74; 25 Atl. Rep.
1026), 80
Young V. Boston (104 Mass. 95),
618
Young V. Bransford (12 Lea. 232),
701
Young V. Ellis (91 Va. 297; 21 S.
E. Rep. 480), 75, 79, 219
Young V. Equitable Gas Co. (5 Pa.
Super. Ct. Rep. 232; 28 Pittsb.
L. J. (X. S.) 75; 41 W. X. C.
24), 127, 253
Young V. Forest Oil Co. (194 Pa.
St. 243; 45 Atl. Rep. 121; 30
Pittsb. L. J. (X. S.) 221), 107,
115, 151. 154, 182
Young V. South wark, etc., Co. (69
L. T. 144; 41 W. R. 622; 57 J. P.
806; 5 Rep. 432), 583
Young V. Vandergrift (30 Pittsb.
Leg. J. (X. S.) 39), 128, 154, 182
Young V. Vandergrift (30 Pittsb. L.
J. (X^ S.) 39; 194 Pa. St. 234;
45 Atl. Rep. 119). 203
Youngblood v. Sexton (32 Mich.
406; 20 Am. Rep. 654), 563
Zanesville v. Zanesville Gaslight Co.
(47 Ohio St. 1; 23 X. E. Rep.
555 ; 29 Am. and Eng. Corp. Cas.
190). 426. 427
Zanesville Gaslight Co. v. Zanesville
(47 Ohio St. 35; 23 X. E. Rep.
60; 23 Wkly. L. Bull. 70; 29 Am.
and Eng. Corp. Cas. 190), 440
Zouche v. Dalbaic (L. R. 10 Exch.
177), 251
>
CHAPTER I.
HISTORICAL SKETCH
§1. Petroleum known to ancients.
§2. Early discoveries of petroleum in United States.
§3. Early account of a Western New York oil spring.
^4. Washington county, Ohio, oil well.
§5. The first oil well in United States.
§6. Other first oil wells in United States.
§7. In what countries petroleum found.
§8. Natural gas known to ancients.
§9. Early natural gas in America.
CIO. Sources and composition of petroleum and gas.
§11. Composition of petroleum.
§12. Composition of natural gas.
§13. Early attempts at distilling or refining petroleum.
§14. Early use of petroleum as a medicine.
§15. Transportation.
§16. The first oil lease.
§17. Early use of artificial illuminating gas.
^§1. Petroleum known to ancients.
Petroleum was not unknown to the ancients. It is related
chemically closely to asphalt or asphaltum.^ Asphalt was used
in cementing the stone walls of ^NTineveh and Babylon, even in
laying the famous Tower of Babel ; and is called in the Old
Testament "slime of mortar." Slime pits were near the city Is,
the present Hit, on the river Is, a tributary of the Euphrates —
1 " When the Jews were led into found an oil, which poured on the
Pers'a they found pits in which the hot stone used in sacrifices, burst
priests concealed the sacred fire they into high flames. These pits the
required for their sacrifices." — 2 Jews closed and applied to them the
Maccabees, Chap. I. Tlie contempo- term nephtar or nephtoj — a place
raries of Nehemiah, in after years, of expiation. Hence our word
in searching for this concealed fire, naphtha.
2 OIL AXD GAS.
sometimes called the Spring of Is." This spring attracted the
attention of Alexander and Trajan. Mention is made in the
Old Testament of fountains and springs of oil, which may be
taken without doubt to relate to petroleum springs. Asphalrnni
is quite common in the Dead Sea regions, especially upon thi'
shores of that mysterious body of water. The Egyptians knew
the value and use of ]>etroleum and asphalt; for they soaked
the cerements of the dead in them, which has been one of the
factors in the preservation of the mummies to the present day.
A mummy will readily burn, because of the fact that it was
wrapped in clothes soaked in ]Tetroleum or liquid asphaltum.^
Their terra for it was " rock oil " ; and it is supposed that they
got it near a place on western mouth of the Gulf of Suez, called
at the present day Djebel-ez-Zeit, which is the Arabic name for
*' Oil Mountain.'' Oil was discovered at that place in Feb-
ruary, 1886. The oil fountains of Hit were celebrated among
the Arabs aud Persians. Herodotus, four hundred and fifty
years before the Christian Era, makes mention of the then
famous Spring of Zante, Zante being one of the Ionian Islands.
Pliny and Dioscorides speak of the oil taken from the earth at
Agrigentum, Sicily, and of its use in lamps as "Sicilian Oil."
From time immemorial, near Rivanazzano, in Sardinia, small
rills of oil have run from the earth. The famous Caspian
region, or Baku district, was well known to the ancients, they
making use of the oil and gas of that region. * It is supposed
tliat the famous Greek Fire was nothing more than combustibles
soaked in petroleum, obtained from that countiT ; for it is known
that Greece received petroleum from the port of Phanagorin.
In limited quantities it was known to the Chinese, probably
many centuries liefore the beginning of the present Era. Their
earliest records show a knowledge of it. It was probably not
unknown in India at an early day, and to the Romans when they
invaded the present territory of Galicia, of Moldavia, and of
Wallachia, where it now is ol)tained in great quantities."'^
2Mentiono(l by Herodotus, 450 -i Thoy used liquid asphaltuni in
B. C. as eight, days' journey from laying up stones.
Babylon. * Brannt on Petroleum, 20.
5 Brannt on Petroleum. 2.
HISTORICAL SKETCH. 3
§2. Early discoveries of petroleum in United States.
The Jesuit Fathers in this country in early times made men-
tion of burning springs ; which were nothing more than oil set
alire that had accumulated on the surface of the water of springs
■ — usually what may be termed stagnant springs. One of these
writers Avas a Franciscan missionary, Joseph de la Koche d'
Allion, who wrote a letter in 1629 describing such a spring, and
which is printed in Sagard's Histoire du Canada in 1036.'' On
Oil Creek, in Venango County, Pennsylvania, were to be seen in
the first half of the present century a number of pits, fifteen or
twenty feet across, some circular, some oval, and some square,
carefully cribbed or walled up with timber or logs. In the bot-
tom of these pits were growing trees, centuries old. The oil had
preserved the timl>er with which they were w^alled. The theory
has been advanced that they were constructed by that mysterious
race which preceded the American Indian, who inhabited that
region at the first discovery of America by the Europeans; and
that that race was the same as the one wdiich operated the copper
mines of the Lake Superior country.^ As early as 1750 a
French officer located at Fort Duquesne (the present site < f
Pittsburg), in a letter to General Montcalm, then located at
Quebec, described oil found in a region which was evidently
the region of Oil Creek as now known. ^
" While descending the Allegany," said he, '" fifteen leagues
below the mouth of the Connewango, and three above the Ve-
nango, we were invited by the chief of the Senecas to attend a
religious ceremony of his tribe. We landed, and drew up our
canoes on a point where a small stream entered the river. The
tribe appeared unusually solemn. We marched up the stream
about half a league, where the company, a large band it ap-
peared, had arrived some days before us. Gigantic hills bcQirt
us on every side. The scene was really sublime. The great chief
6 On an old map of 1670, yet pre- die Colonies of America." etc., hy
served, is marked a "Fontaine do Lewis Evans, published at Philadel-
Bitume," located near the present phia in 1755, the existence of petro-
village of Cnlia, New'Work. leuni in the present States of both
■^ Brannt on Petroleum. 4. Pennsylvania and Ohio is indicated.
8 On "A General Map of the Mid-
4 OIL AND GAS.
then recited the conquests and heroism of their ancestors. The
surface of the stream was covered with a thick scum, which,
upon applying a torch at a given signal, burst into a complete
conflagration. At the sight of the flames the Indians gave forth
the triumphant shout that made the hills and valleys re-echo
again. Here, then, is revived the ancient fire-worship of the
East ; here, then, are the children of the Sun." ^
In 1784 Peter Kalm, a celebrated Swedish botanist landed in
this country, and spent three years in travel. In 1753 and 1761
he published an account of his travels, in which he described the
oil springs of Western Pennsylvania. In the latter part of the
eighteenth century in the correspondence of that time, frequent
mention is made of oil observed in springs and floating on water
in Western Pennsylvania, Eastern Ohio, Western Virginia, and
Eastern Kentucky.^" It is said that General Washington, in
1775, when visiting the Kanawha Valley, set aside to the public
a square mile of land, on which was located a gas well, above
Salt Lick ; but a defect in the deed, after\vards discovered, ren-
dered the conveyance void. As early as 1814, in Washington
County, Ohio, thirty miles north of Marietta, in sinking a salt
well, both petroleum and gas were found. A similar well was
bored in 1819 in Wayne County, Kentucky, and it yielded so
much black petroleum that it was abandoned. In 1829 a salt
well bored near Burkesville, Cumberland County, of the same
State, yielded great quantities of oil, estimated to amount to
fifty thousand barrels up to 1860, most of which was lost. Some
of it was sold as a medicine under the name of ''American Oil."
In 1840 a well at this place spouted oil at the rate of seventy-
five gallons a minute for a short period. In 1857 oil was dis-
covered by one Shaw, in Enniskillen township, in the Province
of Western Ontario ; and later a well was dug which proved to
be a flow'ing one at the rate of fifty-five gallons a minute. The
first flowing well w^as discovered January 11, 1862, on Black
Creek, of that to"svnship. In 1854 petroleum springs were dis-
!> Henry's History of. Petrole- in North America," in 17SS. speaks
urn, 11. at length of petroleum in Pennsyl-
10 Loskiel, in his "PHstory of the vania and Ohio. See the account in
United Brethren Among the Indians Brannt, p. 5.
HISTORICAL SKETCH. 5
covered fifteen miles west of Tulare Lake, California, by the
United States Government officers.
§3. Early account of a western New York oil spring.
As early as 1833 Prof. Benjamin Silliman, Jr., of Yale Col-
lege, visited an oil spring or pool in the western part of Alle-
gany County, ISTew York, and wrote a very interesting account
of his visit and the result of his examination. The oil taken
from this spring or pool was sold as " Seneca Oil " for medicinal
purposes.
" The Oil Spring, as it is called," said he, " is situated in the
western part of the County of Allegany, in the State of New
York. This county is the third from Lake Erie on the south
line of the State, the counties of Cattaraugus and Chautauqua
lying west, and forming the southwestern termination of the
State of 'New York. The Spring is very near the line which
divides Allegany and CattaraugTis. Being in the County of Al-
legany, I was indebted to the kindness of a friend, who on the
6th of September took me from Angelica to the Spring. After
crossing the Genesee River, our ride was to the town of Friend-
ship, six miles ; then to Cuba, eight miles ; and thence into the
township of Hinsdale, three and a half miles, making seven-
teen and a half miles from Belvidere, the county-seat of
Phillip Church, Esq., and twenty-one miles from Angelica
village. The place Avill be found without difficulty by taking
a guide at Hick's tavern, which is on the comer of the road
to Cuba where it is intersected by the road to Warsaw, two
miles west of Cuba. The last half mile is in the forest ; and a
road is cut, for the greater part of the way, through the woods ;
but the path becomes finally an obscure foot-track in which a
stranger Avithout a guide might easily lose his way, or at least
fail of finding the object of his search. The country is rather
mountainous ; but the road running between the ridges is very
good, and leads through a cultivated region rich in soil and
picturesque in sceifery. Its geological character is the same
with that which is known to prevail in this western region ; a
silicious sandstone, with shale, and in some places limestone is
6 OIL A^D GAS.
the immediate basis of the couiitrv. The sandstone and shale*
(the limestone I did not see) lie in nearly horizontal strata.
The sandstone is nsnally of a light gray color, and both it and
the shale abonnd with entrocites, encrinites, corallines, terebra-
tula, and other religni^e, characteristic of the secondary tran-
sition formation. The Oil Spring or fountain rises in the midst
of a marshy gronnd. It is a muddy and dirty pool of about
eighteen feet in diameter, and is nearly circular in form. There
is no outlet above ground, no stream flowing from it ; and it is of
course a stagnant water, with no other circulation than that
which springs from the changes of temperature and from the gas
and jDietroleum that are constantly rising on the surface of the
pool. The "svater is covered with a thin layer of petroleum or
mineral oil, giving it a foul appearance as if coated with dir.ty
molasses, having a yellowish-brown color. Every part of the
water was covered by this film, but it had nowhere the irradiance
which I recollect to have observed at St. Catherine's well,
a petroleum fountain near Edinburgh in Scotland. There the
water was pellucid, and the hues produced by the oil were bril-
liant, giving the whole a beautiful appearance. The difference
is, however, easily accounted for. St. Catherine's well is a
lively, flowing fountain, and the qiumtity of petroleum is only
sufficient to cover it partially, while there is nothing to soil the
stream ; in the present instance, the stagnation of the water, the
com.parative abundance of the petroleum and the mixture of
leaves and sticks and other productions of a dense forest preclude
any beautiful features. There are, however, upon this water,
here and there, spots of what seems to be a purer petroleum prob-
ably recently risen, which is free from mixture, and which has
a bright brownish-yellow appearance — lively and sparkling.
Were the fountain covered entirely with this purer production,
it would be beautiful. We w^re informed that when the foun-
tain is frozen, there are always some air holes left open, and that
in these petroleum collects in unusual abundance and purity,
having distinctly the beautiful appearance wdiich has just been
mentioned as now occurring here and there upon the water.
The cause of this is easily understood. The petroleum bping
protected by the ice from the impnrities Avhich at other times
HISTORICAL SKETCH. 7
fall into it, escajDes coiitamiuation, and being diverted to the
air holes both by its lightness and by the gas which mixes with
it, collects there in greater quantity and purity. All the sticks
and leaves, and the ground itself around the fountain, are ren-
dered more or less adhesive by the petroleum. They collect the
petroleum by skimming it like cream from a milk-pan. For
this purpose they use a broad, fiat board, made thin at one edge
like a knife. It is moved flat upon and just under the surface
of the water, and is soon covered by a coating of petroleum
which is so thick and adhesive that it does not fall off, but is re-
moved by scraping the instrument upon the lip of a cup. It has
then a very foul appearance like very dirty tar or molasses ; but
it is purified by heating it, and straining it while hot through
flannel or other woolen stufl^. It is used by the people of the
vicinity for sprains and rheumatism and for sores u|X)n their
horses. It is not monopolized by any one, but is carried away
freely by all who care to collect it, and for this purpose the
spring is frequently visited. I could not ascertain how much is
annually obtained. But the quantity is considerable. It is said
to rise more abundantly in hot weather than in cold. Gas is
constantly escaping through the water, and appears in bubbles
upon the surface. It becomes much more abundant, and rises in
large volumes whenever the mud at the bottom is stirred by a
pole. We had no means of collecting or of firing it; but there
can be no doubt that it is the carburetted hydrogen — probably
of the lighter kind, but rendered heavier and more odorous by
holding a large portion of the petroleum in solution. Whenever
it is examined we should expect, of course, to find carbonic acid
gas mingled with it, and not improbably ozate or nitrogen. We
could not learn that any one had attempted to fire the gas as it
rises, or to kindle the film of petroleum u]X)n the water. We
were told that an intoxicated Indian had fallen into the pool and
been drowned many years ago, but that his body had never been
recovered. The story may he true, and if true, it would be a
curious inquiry whether the antiseptic properties of petroleum
so well exemplified m the Egvntinn mmimies may not have pre-
served his body from putrefnction. The history of this spring
is not distinctly knoAvn. The Indians were well acquainted
8 OIL AND GAS.
with it, and a square mile around it is still reserved for tlie
Seneeas. As to the geological origin of the spring, it can
scarcely admit of a doubt that it rises from beds of bituminous
coal below. At what depth we know not, but probably far down.
The formation is doubtless connected with tlie bituminous coal
of the neighboring counties of Pennsylvania and of the west
rather than with the anthracite beds of the central parts of
Pennsylvania." "
§4. Washington county, Ohio, oil well.
An account was given in 1833 of the Washington County,
Ohio, well, by Dr. S. P. Iliklreth, of Marietta, which is of un-
usual interest at the present day.
" The greater abundance of stone coal in this locality," said
he, " than in that of the Muskingum, gives it a decided advan-
tage in the elaboration of jD^troleum. On the latter river the
wells afford but little oil, and that only during the time the
process of boring is going on. It ceases soon after the wells are
completed, and yet all of them abound more or less in gas. A
well on Duck Creek, about thirty miles north of Marietta,
owned by Mr. McKee, furnishes tlie greatest quantity of any in
this region. It was dug in the year 1814, and is four hundred
and seventy-five feet in depth. Salt water was reached at one
hundred and eighty-five feet, but not in sufficient quantity.
However, no more water was found below this depth. The
rocks ]\Tssed were similar to those on the ^luskingum Piver,
above the flint stratum, or like those between the flint and salt
deposits at McConnellsville. A bed of coal two yards in thick-
ness was found at the depth of one hundred feet, and gas at one
hundred and forty-four feet, or forty-one feet above the salt
rock. The hills are sandstone, based on lime, one hundred and
fifty or two hundred feet in height, with abundant beds of stone
coal near their feet. The oil from this well is discharged period-
ically, at intervals of from two to four days, and from three to
11 American Journal of Science,
18.33, set out in full in Henry's His-
tory of Petroleum, pp. 12-19.
HISTORICAI. SKETCH. 9
six hours' duration at each period. Great quantities of gas ac-
company the discharges of oil, which for the first few years
amounted to from thirty to sixty gallons at each eruption. The
discharges at this time are less frequent and diminished in
amount, affording only about a barrel per week, which is worth
at the well from fifty to seventy-five cents a gallon. A few years
ago, when oil was most abundant, a large quantity had been col-
lected in a cistern holding thirty or forty barrels. At night some
one engaged about the works approached the well-head with a
lighted candle. The gas instantly became ignited, and commu-
nicated the flames to the contents of the cistern, which, giving
way, suffered the oil to be discharged down a short declivity
into the creek, where the w^ater passes with a rapid current close
to the well. The oil still continued to burn most furiously, and
spreading itself along the surface of the stream for half a mile
in extent, shot its flames to the tops of the highest trees, exhibit-
ing the novel and perhaps never before witnessed spectacle of a
river actually on fire." ^"
§5. The first oil well in TJnited States.
In 1853 George H. Bissell saw a bottle of crude petroleum in
the ofiice of Professor Crosby, of Dartmouth College. On
examining it, he at once perceived its true value. He was en-
gaged in the practice of law in New York City with J, G.
Eveleth ; and he proposed to his partner that they proceed at
once to Titusville and inspect the territory. The result of this
visit was that they, in 1854, purchased one hundred and five
acres of Brewer, Watson & Company, and leased another tract
of about the same size for ninety-nine years, for five thousand
dollars. The deed bore date of ^N'ovember 10, 1854; and the
land was situated on Oil Creek, in Cherrytree Township, Ve-
nango County, and covered the Island situated at the junction
of Pine and Oil Creeks. On December 30, 1854, Jonathan G.
Eveleth, George H. Bissell, James H. Salisbury and Dexter
A. Hawkins of ISTe^ York, Francis B. Brewer of Titusville and
1- American Journal of Science, Henry's History of Petroleum, pp.
July, 1833, set out nearly in full in 21-26.
10 OIL AND GAS.
Anson Sheldon of Xew Haven, Connecticut, organized and in-
■corporated the Pennsylvania Rock Oil Company, the first oil
company incorporated in America. On January 16, 1855, the
territory above described was leased to the new oil company.
Altliougii the new company had its leases, there was an uncer-
tainty how the oil should be developed ; and the enterprise was
allowed to drag. Professor Silliman had been given two hun-
dred shares of stock in tlie new company, in order to make him
president of it; but owing to the small amount of petroleum
obtainable, he never expected much to come of the venture.
Speaking of the plan of development, Mr. Henry says : " The
idea came from another quarter, and was suggested by an inci-
dent as trifling as that which disclosed the law of gravitation.
While seeking shelter beneath the awning of a Broadway drug
store one scorching day in the summer of 1856, Mr. Bissell's
eye fell upon a remarkable show-bill lying beside a bottle of
^ Kier's Petroleum,' in the window. His attention was arrested
by the singularity of displaying a four hundred dollar bank note
in such a place ; but a closer look disclosed to him the fact that it
was only an advertisement of a substance in which he was deeply
interested. He stepped in, and requested permission to examine
it. The druggist took it from the window, and, having plenty of
them, told him to keep it. For a moment he scanned it, scrutin-
izing the derricks, and remarking the depth from which the oil
was drawn, when instantly, like an inspiration, it flashed upon
him that this was the way their lands must be developed — ]>y
artesian wells." Nearly two years were allowed to elapse before
arrangements were completed which enabled the Oil Company
to send out a man to its leased territory to begin o]3erati<>ns.
They selected Mr. E. L. Drake, of New Haven, conductor on a
passenger railway train, who came to be known in the history of
oil operations as " Colonel Drake," to l>egin operations. He
arrived in the future oil territory about ]\ray 1, 1858. Drake
faced many difficulties when he arrived at the field of his future
operations, among which was the want of ready money, the
difficulty of finding suitable operators, and the novelty of the
scheme. ^Ir. Kier, the patent medicine man of Pittsburii. hnd
recommended to Mr. Bissell " Uncle Billv Smith " and his two
HISTORICAL SKETCH. 11
•sons as suitable men ; and tliey were brought to Titusville in
June, 1859, when operations began. "Aggravating delays fol-
lowed," says Mr. Henry. " In artesian boring it is necessary to
begin on the rock to drill. This had been previously done by
digging a common well-hole and cribbing it up with timber.
When the rock is within a few feet of the surface it is still the
cheapest and easiest method, but in some localities to do so would
be practically impossible. They started to dig a hole, but it so
persistently caved in and filled with water when they got a few
feet below the surface, that Drake determined to give it up and
try an experiment that had suggested itself to his mind. This
was the driving of an iron tube through the quicksand and clay
to the rock. If this is exclusively his own invention, which is
probable, it is a pity he did not procure a patent on it. The
royalty would have afforded him at least a competency, though
the driving pipe is not so much in use as formerly." The opera-
tors in the oil region have had the benefit of this invention with-
out any return, unless indeed we except the good feeling which
prompted them to send him a present of $1,200, when they
heard he Avas sick and in need. " The pipe was successfully
driven to the rock thirty-six feet, and about the middle of August
the drill was started. The drillers averaged about three feet a
day, making slight ' indications ' all the way down. Saturday
afternoon, August 28th, 1859, as Mr. Smith and his boys were
about to quit for the day, the drill dropped into one of those
crevices, common alike in oil and salt borings, a distance of
about six inches, making the total depth of the whole well 691/2
feet. They withdrew tlie tools, and all went home till Monday
morning. On Sunday afternoon, however, ' Uncle Billy ' went
down to the well to reconnoitre, and ]ieering in he could see a
fluid within eight or ten feet of the surface. He plugged one
end of a bit of tin water spout and let it do^vn with a string. He
drew it up filled with petroleum. That night the news reached
the village, and Drake, when he came down next morning bright
and early, found the old man and his boys proudly guarding the
S|X)t, with several barrels of petroleum standing about. The
pump was at once adjusted, and the well commenced producing
at the rate of about twenty-five barrels a day. The news spread
12 OIL AND GAS.
like lightning. The village was wild with excitement. The
country people round about came pouring down to see the won-
derful well. Mr. Watson jumped on a horse and hurried
straightway to secure a lease of the spring on the McClintock
farm near the mouth of the creek. Mr. Bissell, who had made
arrangements to be informed of the result, by telegraph, bought
up all the Pennsylvania rock-oil stock it was possible to get hold
of, soon securing most of that owned in ^ew Haven, and four
days afterward was at the well." ^^ " This memorable strike,"
says Crew, " ushered in the Petroleum Era." ^*
§6. Other first oil wells in United States.
Naturally this great "find" of oil created tremendous excite-
ment, and immediately suggested the putting down of other
wells. The second well w^as put down in February, 1860, by-
Barnsdal, Meade and Rouse, to a depth of one hundred and
sixty feet, resulting in a production of forty to fifty barrek
daily. This well was on the Watson Flats, below Titusville.
The third well was located on the afterwards famous McClintock
farm. It was completed in the spring of 1860, and was sunk by
a Mr. Angier for Brew^er, Watson and Company. These wells
had to be pumped. The first flowing well was produced in the
summer of 1860, on the Buchanan farm near Rouseville, called
13 Henry's History of Petroleum. Titusville, who gave him his dinner
14 Crew on Petroleum, 142. and furnished him money to return
Colonel Drake made considerable home. On arriving at Titusville this
money in oil investments, but lost it friend raised for him $4,200 as a
all in New York City speculating in present. With the proceeds of this
oil stocks. Becoming an invalid, he sum the family were enabled to liv*;
was taken by his wife to Vermont, plainly but comfortably for several
with their children, and afterwards years. They settled in Bethlehem,
to the highlands of New Jersey, in Pa., and in 1873 that State providea
order that he could have the benefit for him a pension of $1,500 a year
of the sea breeze. They lived in ab- for life, and in case his wife sur-
ject poverty, his wife supporting the vived him, the pension to be con-
family with her needle. With an ef- tinned to her during her life. Re-
fort she one day raised forty cents publics are not always ungenerous;
to enable him to go to New York nor are employers who reap vast for-
City to see if he could not find some- tvmes by the labors of their servants
thing he could do or secure some aid. always generous.
He met an old acquaintance from
HISTORICAL SKETCH. 13
the " Curtis " well, but it soon filled with Avater and ceased to
flow. The first permanent flowing well w^as situated on the
Upper McElhenny Farm, and was completed in June, 1861, by
Messrs. Phillip and Company. It was four hundred feet deep,
and produced three hundred barrels per day for fifteen months,
before it ceased to flow. The celebrated '' Phillip's Well " was
situated on the Tarr farm, and was completed ^N^ovember 14,
1861. It was a flowing well producing three thousand barrels
daily, one day producing 3,940. The " Empire Well " produced
the same amount. Wells ivere put down after August, 1859, as
ra])idly as the crude means of drilling them, and the remoteness
from supplies, would permit. In September of that year crude
oil brought twenty dollars a barrel in the oil region, but in No-
vember, 1861, it was only five cents, the lowest oil ever sold. In
January, 1863, ten cents. This was due to the lack of facilities
to transport it. After better facilities had l>een employed to get
the crude oil to market the price arose, imtil July, 1864, it
brought fourteen dollars a barrel.^^
§7. In what countries petroleum found.
It is diflScult to name all the countries in which petroleum has
been discovered. It was known in ancient times that oil existed
in the Echigo province of Japan, on the Japanese Sea. The
springs there were called the " Evil Smelling Springs." Oil is
still found in that province in gi'eat quantities. In Java there
were in 1879 at least one hundred wells. In Borneo in 1899
was known a considerable field of oil, some of which was then
worked. In Sumatra, in 1898, it w'as reported that the field
was giving out. In Bunnah are ancient oil wells, and many
wells on the Irrawaddy River are in active operation. Xear the
15 In 1854 it sold for $1 a gallon. 500 barrels daily ^ve^e taken out of
From 1859 to 1876 it has been esti- the wells in Ohio and West Vir-
niated that 10,500 wells were drilled ginia. Tlie two wells at Terre
alone in Pennsylvania ; and from a Haute, Indiana, in that year only
territory of an actual area of less produced 27 barrels per day. They
than three miles on ^il Creek not were the only oil bearing wells in
less than $110,000,000 of oil had that State,
been produced. In 1876 not over
14 OIL AND GAS.
Bolan Pass in India petroleum was discovered in 1885 ; and at
Sibi on the northwest frontier. It is also found in the Punjab
regions, between Cashmere and CabuL In Persia at Talish a
petroleum spriiig has recently been discovered. On the eastern
side of the Caspian Sea, on the Taman peninsula are vast depos-
its of oil ; while on the western shore, immediately opposite, is
the famous Baku district of Russia, once thought inexhaustible
in both its oil and gas, but now showing signs of failure.^*' On
the shore of the Red Sea, at Djmsah, in the Orange Free State,
and in Algiers, of Africa, oil is found in considerable quantities.
Wells exist at Baico, Tintca and Campina in Roumania, with a
capacity in 1890 of one thousand tons daily. Galicia is perhaps
the greatest oil producing country of Europe. Oil is found in
Moldavia, Wallachia, Albania and Dalmatia. It is found near
Piacenza and Veleja, Italy. As we have already seen, oil is
found in Sicily, in the Ionian Islands, probably at Genoa and
in Sardinia, though in small quantities. It is also found in Al-
sace,^^ in the valley of the Rhine near the village of Schwatwil-
ler, having been discovered as early as 1835 ; also in Hanover, at
Luneberg heath, south of Hamburg, near Ilolle, in the Dithmer-
schen, Schleswig-Holstein, at Lobsaun and Bechelbronn ; ^* and
in very small quantities in South France near the Pyrennes.
Oil has been drawn from a well near Edinburg, Scotland, for
many years ; and we have already noted that it was known in
Derbyshire, England, although in very small quantities. It has
also been found at Worsley, at Wigan and West Leigh in Lanca-
shire, and at Coalbrookdale and Wellington in Shropshire, but
never in commercial quantities. Small quantities have been
16 Described by Masudi, who died the mange. People come from vast
in 950. distances to fetch it, for in all coun-
" On the confines towards Geor- tries round about they have no
giana," says Marco Polo, "there is other oil." 1. Yule-Cordier edition
41 fountain from which ' oil springs of Marco Polo's travels (ed. 1903),
5n great abundance, insomuch that p. 49. This was written about 1272,
■a hundred ship loads might be and describes the now famous
Inken from it at one time. This Baku district.
■oil is not good to use with food, i7 Used in the eighteenth century,
but 'tis good to burn, and is also is A deep shaft in search of oil
used to anoint camels that have was dug in 1735.
llISTORICAI> SKETCH. 15
discovered in recent years in Australia ''' and in ISGO in !New
Zealand. At a place called Taranki, in the latter island, natural
gas escapes from the ground. Oil is also found in the Hawaiian
Islands. The oil lands of Peru are quite extensive in area, lying
on the coast near the Pacific Ocean. It is likewise found in the
Argentine Republic and in Bolivia. It is also found in great
quantities in Ecuador, having been discovered by a priest in the
eighteenth century. Xear Tocuyo, Cap a dare and Curamich-
ate, Venezuela, petroleum is likewise found. Small petroleum
springs exist near Havana, Holquin and Mayri, of Cuba, in
Santo Domingo, Trinidad and the Barbadoes. Xear Papantla,
in the State of Veracruz, Mexico, are several wells. We have
already seen that oil exists in great quantities in Western On-
tario ; and gas has been pijx'd in great quantities from that terri-
tory to Buffalo and Detroit. There is a small well near Gaspe,
Quebec, but as late as 1897 it had not produced oil in paying
quantities. The gi'eatest oil field in the world, perhaps with the
exception of the Baku district, was that of Western Pennsyl-
vania. The fields of West Virginia, Kentucky, Ohio and In-
diana have proven sources of great wealth; while Western New
York, Eastern Tennessee, Louisiana, Texas and California have
proven fine deposits of oil we.alth. Variable quantities have
been found in Michigan, Illinois, Missouri, Kansas, Indiana
Territory, Oklahoma, Alabama, Nebraska, Wyoming, South
Dakota, Colorado, Xew ^lexico, Washington, Alaska, and the
Northwest Territory of Canada.
^8. Natural gas known to ancients.
In boring wells for salt the Chinese in the district Tsien Luon
Tsing discovered natural gas in very early times. Some of the
wells are two thousand feet deep. The gas in recent times has
been used, not only for the purpose of evaporating salt water, but
for domestic pur|X)ses. It was conveyed to the place of con-
sumption by bamboo pipes. When a well became ignited, and
could not be otherwise extinguished, they accumulated a body of
water of considerable size aaid suddenly precipitated it upon the
10 In 1880 near Yorktown.
16 OIL AND GAS.
burning well. As early as A. D. 615, gas wells were known in
Japan. At least six hnndred years before the birth of Christ
the Magi of Asia were worshippers of the eternal fires that
blazed from fissnres in the mountains on the coast of the Caspian
Sea. The region of these fires was on the Apsheron peninsula,
situated between the Caspian and Euxine Seas, where great de-
posits of petroleum have been found in recent years. The ad-
herents of the Parsees, a sect founded by Zoroaster, when they
subjugated the tribes around the Caspian, adopted the fire-wor-
ship of -the conquered. In A,. D. 621 Heraclius proscribed their
rites and destroyed their temple, ruins of which still exist; and
twelve years later the country was conquered by the Mohamme-
dans. Marco Polo describes this region in his travels, about
1272. At an early age burning gas was known in the vicinity
of Genoa, Italy ; and that city Avas formerly lighted with gas
brought from the wells of Amiano or Miamo, in Parma. The
famous " Fontaine Ardente," near Grenoble, France, was burn-
ing in the time of Julius Csesar, as it had for ages before. At
Wigan, Lancashire, England, is a gas or "burning well."
§9. Early natural gas in America.
The early discoverers of petroleum in this country mus»
have noticed escaping gas in connection with the petroleum ; an-f
a few of them make mention of that fact. In 1815, at Charles
ton. West Virginia, gas was obtained from a salt well ; and r^
early as 1811 It was used In the evajwration of brine in the man
ufacture of salt. In 1821, at Fredonia, Chautauqua County
Xew York, a Avoman going to a spring after night for water sck
down her lantern, and the spring immediately took fire from it
Investigation showed that gas in considerable quantities was eS'
caping at that place. The same year a well was sunk in that
town, on the bank of Canadaway Creek, near the Main Bridge,
Fredonia, and sufficient gas obtained for thirty burners. On
the occasion of General Lafayette's visit to that town in 1824
the Taylor House, an inn or hotel, was illuminated by means of
the gas obtained fi^om this well. The well was only twenty-seven
feet deep; and in a few years it burned out. In 1850 it was
HISTORICAL SKETCH. 17
deepened to seventy feet. In 1858 a second well was bored,
whicli furnished gas for two hundred burners. In 1871, a third
was drilled to a depth of twelve hundred feet. As early as 1863
natural gas was used for manuacturing purposes at East Liver-
pool, Columbiana County, Ohio, and was used at an early date
for lighting the streets, the use for that purpose probably being
the first instance of the kind. In 1806 a gas well was bored
near Kenyon College, Knox County, Ohio, six hundred feet
deep. For several years the gas was allowed to escape, blazing-
fifteen feet high and three feet in diameter, before use was made
of it. In 1854 the first gas well was bored (1,200 feet deep) in
Erie, Pennsylvania ; and at quite an early date gas was found
in. a well five hundred feet deep at West Bloomfield, l^ew York,
and which was piped to Rochester for illuminating purposes.
In 1873 natural gas was used to light the town of Fairview,
Pennsylvania ; and the same year it was found flowing from
the ground in the salt region above Marietta. In 1873 gas in
great abundance was discovered on the Big Kanawha, above
Charleston, and was used by the workingnnen to boil water
and cook their dinners ; and in the same year a well located
in Armstrong County, Pennsylvania, furnished the first gas
for a rolling mill. One year later a gas well of tremendous
force was drilled at Murrysville, Pennsylvania, twenty miles
from Pittsburgh ; and for three years the gas was allowed to
escape, no efi^ort being made to check its flow. In 1876 the
town of Titusville, Pennsylvania, was supplied for the first time
with gas flowing at the rate of four million cubic feet a day,
from a well seven hundred and eighty-six feet deep ; and the
same year gas was brought from Butler County, nineteen miles,
to Pittsburgh, for use in a rolling mill. x\bout this time the
value of natural gas began to be appreciated ; but so universal
was the l>elief that it was inexhaustible that little effort Avas
made to husband it until at the end of the next fifteen or twenty
years, Avhen its decline became so pronounced that the warning
could no longer be disregarded if the full benefit of its use was
to be preserved. It is safe to say that wherever petroleum is
found, natural gas will be found in at least small quantities.
In this countrv it has been found in abundance in Western
18 OIL AND GAS.
Ontario, Western New York, Western Pennsylvania, West Vir-
ginia, Eastern Kentucky, Ohio, Indiana, Texas, Southeastern
Kansas and Southern Oregon. Probably the famous Baku
district has shown a greater display of natural gas energy and
supply than any other quarter of the globe. Quite recently it
has been discovered in Sussex, England, near London.
§10. Sources and composition of petroleum and gas.
The origin of petroleum and natural gas is still a controverted
question and one of speculation — an unsolved problem. At
least four tlieories have been advanced, and have their several
advocates. (1) That they are the result of the distillations
from the greatly abundant accumulations of palaeozoic sea-
weeds, the marks of which are still traceable in very many
numerous instances in rocks. (2) That they are the result of
the destruction of the innumerable multitude of coralloid sea
animals, the skeletons of which make up a large part of lime-
stone formations. (3) That they are the resultant of distilla-
tion of bituminous coal. (4) That they are, at least petroleum,
referable in the language of Professor Orton, State Geologist
of Ohio, " to peculiar decompositions chiefly of water and car-
bonic acid whicli are supposed to be carried on at considerable
depths in the earth where these substances are brought into
contact with metallic iron or with metallic bases of the alkalies
at high temperature." "" The last two may be regarded as
abandoned. In discussing the origin of petroleum and the sev-
eral theories, Professor Orton advances the following argument :
" They are most commonly referred to the agency of distilla-
tion. Destructive distillation consists in the decomposition of
animal or vegetable substances at high temperatures in the ab-
sence of air. Gaseous and senii-li(]iii(l ])ro(lncts are (n-olved,
and a coke or carbon residue remains behind. The ' high tem-
peratures ' in the definition given above, must be understood to
cover a considerable range, the lower limit of which may not
exceed 400 or 500 degrees F. Petroleum and gas on the large
scale are not the products of destructive distillation. If shales^
20 Report on Oil and Gas, 1887, p. 9
HISTORICAL SKETCH. 19
sandstones or limestones holding large quantities of organic
matter, as they often do, and buried at a considerable, depth,
should be subjected to volcanic heat in any way, there is no
reason to doubt that petroleum and gas would result from this
action. Without question, there are such cases in volcanic dis-
tricts, but the regions of great |>etroleum production are re-
markably free from all igneous intrusions, and from all signs
of excessive or abnormal temperatures. All claims for an
igneous origin of these substances are emphatically negatived
by the condition of the rocks that contain tliem. There is a
statement of the distillation theory that had attained quite wide
acceptance, which needs to be mentioned here. It is to the
effect that these substances, oil and gas, have resulted from what
is called " spontaneous distillation at low temperatures," and
by low temj^eratures ordinary tem]T€ratures are meant. It does
not, however, appear on what facts in nature or upon what arti-
ficial processes this claim is based. Destructive distillation is
the only process known to science under the name of distillation
which can account for the origin of oil or gas, and this does not
go on at ordinary or low temperatures. A process that goes on
at ordinary temperatures is certainly not destructive distilla-
tion. It may be chemical decomposition, but this process has
a name and place of its o\vn, and does not need to be masked
under a new and misleading designation, such as spontaneous
distillation. ]^o help can come to us, therefore, from the ado}>
tion of the spontaneous distillation theory. It seems more
probable that these substances result from the primary chemical
decomposition of organic substances buried ^nth the forming
Tocks, and that they are retained as petroleum in the rocks
from the date of their formation. It is true that our knowl-
edge of tiiese processes is inadequate, but there are many facts
on record that go to show that petroleum formation is not a
lost art of nature, but that the work still goes on under favor-
able conditions. It is very likely true that, as in coal fomia-
tion, the conditions most favorable for large production no
longer occur, hut enough remains to show the steps by which
the work is done. The '^ spontaneous distillntion " theory has
-probably some apparent support in the fact that must be men-
20 OIL a:nd gas.
tioned here, viz : that where petroleum is stored in a rock, gas
may be constantly escaping from it, constituting in part, the
surface indications that we hear so much of in oil fields. The
Ohio shale, for example, is a formation that yields along its out-
crops oil and gas almost everywhere, but no recent origin is
needed for either. The oil may be part of a primitive store,
slowly escaping to the day,- and the gas may be constantly de-
rived from the partial breaking up of the oil that is held in the
shales. The term '' spontaneous distillation " might, with a
little latitude, be applied to this last named stage, but it has
nothing to do with the origin of either substance. While our
knowledge of the formation of petroleum is still incomplete and
inadequate, the following statements in regard to it are offered
as embodying the most probable view :
1. Petroleum is derived from vegetable and animal sub-
stances that were deposited in or associated with the forming
rocks.
2. Petroleum is not in any sense a product of destructive disr
tillation, but is the result of a peculiar chemical decomposition
by which the organic matter passes at once into this or allied
products. It is the result of the primary decomposition of
organic matter.
3. The organic matter still contained in the rocks can be
converted into gas and oil by destructive distillation, but so far
as we know, in no other way. It is not capable of furnishing
any new supply of petroleum under normal conditions.
4. Petroleum is, in the main, contemporaneous with the
rocks that contain it. It was formed at or about the time that
these strata were deposited.
William T. Brannt, in his work on Petroleum, written in
1894, Avhich is based upon the German w^ork of Professor Hans
Hoefer and Dr. Alexander Veith, gives the following conclu-
sions "^ as the result of his researches :
1. " Petroleum is of animal origin ; saurians, fishes, cuttle-
fishes, coralloid animals, etc., especially have authentically
contril)uted to its fonnation, tliough soft animals without solid
frame, of which no authentic, determinable remains are left
21 Brannt on Petroleum, 163.
PIISTORICAL SKETCH. 21
behind, may also have co-operated. While coal has been
fomied by the transformation of vegetable substances, petro-
leum and the allied bitumens originated from animal sub-
stances.
2. " It is still an unsolved problem whether i^etroleum could
be formed from animal remains only under s^^ecial conditions ;
neither is the nature of tliese conditions known.
3. " Petroleum has been formed in all ages of the earth's
history of which animal remains exist. The Archaean strata
are free from petroleum.
4. " Petroleum could accumulate and be preserved in the
original deposit only, if during its formation it was shut oft"
from escape.
5. " The formation of petroleum has been effected without
the co-operation of an uncommonly high temperature, and,
6. " It has taken place under high pressure, the influence of
which upon the chemical process is not kno^vn.
7. " The deposits of petroleum are partially original (pri-
mary) and partially secondary ; the latter may be or were cour
nected with the former.
^' Concerning the formation of natural gas the same materials
and similar processes as for the fonnation of petroleum may
be presupposed. The accumulation of both also took place in
the same spaces, frequently in such a manner that the gas oc-
cupied the higher, and the oil the lower sections of the same
rock stratum. Xo process being knoA\m l>y which petroleum
can be formed from natural gas, while the separation of the
latter from the former — even at the ordinary — is a well
known fact, it is very probable that petroleum is the primary
and gas the secondary product."
§11. Composition of petroleum.
Naturally petroleum taken from different quarters of the
Avorld will vary in composition, but, in general, it may be said,
it is a mixture of several hydrocarbons, and to contain also
bituminous materials, sulphur, carbonaceous matter, sand and
clay.^" Tne following table of the result of refining crude pe-
229 Pop. Sci. Mon. 140; Crew on Petrolevim, 165.
22
OIL AND GAS.
troleuni was made ns early as 1866 ; but it should be remem-
bered that oil even from the same region will not always produce
identical results. We give the table :
Gasoline 3 per cent.
Naphtha 10
Benzine 3 "
Illuminating Oil 75 "
Residuum 4 "
Coke and Loss ' 5 "
100
A distinguished Russian chemist, Ludwig Nobel, has given
the following as the result of refining crude jietroletim taken
from the Baku district :
Benzine ( light oil ) 1 per cent.
Gasoline 3 "
Kerosene (burning oil) 27 "
Saliaroui 12
Lubricants < Veregenni 10 "
Lubricating 17 "
Cylinder 5
Vaseline 1 "
Liquid fuel 14 "
Lost in refining- 10 "
100
The following table is taken from S. F. Peckham's Report
on Petroleum (page 165) of the average percentages of commer-
cial products obtained from crude petroleum from New York,
Pennsylvania, Ohio and West Virginia :
Gasoline 1.5 per cent.
C — naphtha 10.0 "
B — naphtha 2.5
A — naphtha 2.5 "
Illuminating Oil 54.0 "
Lubricating Oil 17.5 "
Paraffin 2.0
Coke and Loss 10.0
100.0
HISTORICAL SKETCH. 23
gl2. Composition of natural gas.
Analyses of natural gas will necessarily differ, varying with
the locality from which it is drawn. In the following table,
prepared prior to 1888, one per cent, is unaccounted for, it will
be noticed :
Marsh Gas 67 per cent.
Hydrogen 22 "
Ethylichydride 5 "
Nitrogen 3 "
Carbonic. Acid 6/10 "
Carbonic Oxide 6/10 "
Oxygen 8/10 "
99
An analysis of the natural gas of Fredonia showed the follow-
ing results :
Nitrogen 9.54 per cent.
Carbondioxide 0.41 "
Hydrocarbons of the paraffin series 90.05 "
100.00
Another analysis of Murrysville gas produced the following
results :
Nitrogen 2.02 per cent.
Carbondioxide 028 "
Oxygen trace
Paraffins 97.70 "
100.00 "
Several analyses by Bunsen and Schmidt of the Caucasus nat-
ural gas give the following results :
Methane 92.49
Olefines 4.11
Carbonmonoxide , 0.93
Hydrogen 0.94
Nitrogen 2.13
93.09
92.24
97.57
95.56
3.26
4.26
2.18
3.50
2.49
4.4
0.98
0.49
24 on. AND GAS.
§13. Early attempts at distilling or refining petroleum.
As early as 1694 patents were granted in England for mak-
ing " pitch, tar and oyle ont of a kind of stone." In 1781 the
Earl of Dundonald obtained oils from coal by the" same process.
As early as 1840 " coal oil," properly called, was distilled in
France from bituminous shale. During the next ten years
hundreds of experiments were made to successfully distill oil
from coal and bog peat. E. W. Binney, the geologist, of Man-
chester, England, about 1847 called attention to the petroleum
found at Riddings, near Alfreton in Derbyshire. The same
year a patent had been granted to one Mansfield for " the im-
provement in the manufacture and purification of spiritous
substances and oils applicable to the purposes of artificial light."
James Young the same year began the distillation of a substance
which he called " petroleum peat " ; and three years later he
and Binney having discovered a highly bituminous coal at
Boghead, Scotland, established works for the purpose of dis-
tilling oil from it, and conducted them on an expensive scak
for fifteen years. Several years after Binney had called attei "
tion to the petroleum at Biddings, he and James Young con -
menced the manufacture of illuminating oil from it, but tl'»)
supply soon giving out, they began distilling oil from boghea 1
peat, as above stated. Refineries tO' distill oil from coal wer!
soon established in America under the English patents, whicli
were taken out in this eount.r\^ in 1856, but afterwards over-
thrown by the courts as illegal. In 1851 petroleum on Oil
Creek, Pennsylvania, was selling for seventy-five cents a gallon.
It was tested by Messrs. Williams, Luther Atwood and Joshua
Merrill at the United States Chemical Manufacturing Com-
pany's works at Waltham, near Boston, and very satisfactory
results obtained ; but the supply being very limited, little effort
was made to manufacture and put it on the market. Small
quantities of it, however, were put upon the market in 1852
and called " Coup-Oil," after the coup d'etat of Louis Napo-
leon. It was used as a luliricating oil. As early as 1855
petroleum was refined and offered for sale at Pittsburgh ; but
as the quantity was small, a market in that city was found f(v.-
IIISTOKICAL SKETCH. 25
the entire amwmt of the output. The manufacture created
a demand for the crude product. In 1856 Joshua Merrill first
made an illuminating oil from Trinidad bitumen. In 1853
George H. Bissell, having seen a bottle of crude petroleum in
die office of Professor Crosby of Dartmouth College, that had
been sent to him as a curiosity by Dr. Brewer of Titusville,
Pennsylvania, taken from the banks of Oil Creek, procured
another bottle of it directly from that region, and submitted
it in the spring of 1855 to Professor Benjamin Silliman, Jr.,
the eminent chemist of Yale College, who made a report upon
it April 16, 1855, that has become a classic in the history of
]jetroleum.'^ From that moment the success of distilling illu-
(iiinating oil from crude petroleum was established, and re-
fineries began to spring up as soon as the supply warranted their
•onstruction and the process of refining became known. One of
the earliest was situated on Hunter's Point, Long Island, and
probably the most celebrated at Bayonne, Xew Jersey."*
§14. Early use of petroleum as a medicine.
The first use made of petroleum was as a medicine. The In-
dians of Western Xew York mixed it with clay and smeared or
])ainted their faces with the mixture, producing a hideous effect.
It was gathered by the whites and sold as a medicine, as al-
>e.ady stated. It was sold under the name of Seneca Oil, Amer-
ican Oil, afterward as Harlem Oil. About 1849, Mr. Samuel
M. Kier of Pittsburgh conceived the idea of putting it in bottles
and selling it as a specific for all the ills to which flesh is heir.
He procured a few barrels from his father's salt wells in Alle-
gheny County, and placed upon the bottle the following label or
advertisement :
" Kier's
Petroleum or Rock Oil, celebrated for wonderful cura-
tive powers. A natural remedy. Procured from a well in
Allegheny Co., Pa. four hundred feet below the Earth's
23 See Henry's History of Petro- Kerosene Works, located at Boston.
leum for this report. The term "Kerosene " was a trade
24 The name "Kerosene" took its mark. Crew on Petroleum, 136.
name from the celebrated Downer
26 OIL AND GAS.
surface. Put up and sold by Samuel M. Kier, 3G3 Liberty
Street, Pittsburg, Penn.
Price 50 cents."
He sold three barrels a day ; but in three years the demand for
it having declined, he turned his attention to distilling- the crude
oil and in a measure was successful. " Barbados Tar " was
another production of petroleum used as a medicine. At the
present day valuable medicinal products have been made from
petroleum, such as filtered paraffin residues sold under the
names of cosmoline, vaseline, petroline, and the like.
§15. Transportation.
In Asia jjetroleum is transported in the most primitive man-
ner when not. by water. In the Baku district it was transported
in casks placed above and slung under the axle of a two-wheeled
cart, the wheels often being seven feet in diameter. When oil
was first discovered on Oil Creek, Pennsylvania, the only means
of carrying it out of that region was by the use of wagons to
haul it to navigable streams of w^ater. As the quantity to be
transported soon became very great, hundreds of wagons were
in use, resulting in bringing about a condition of the country
dirt roads scarcely without parallel. The demand for trans-
portation was greater than the supply resulting in very high
prices, as high as three dollars a barrel being charged for haul-
ing a barrel four miles. Many a wagoner laid up a comfort-
able sum for the future. The oil was at first placed in barj-
rels that cost $3.50 apiece, a barrel tliat today in that region
would not cost over one dollar. These barrels were made of
heavy oak staves, hooped with iron, and coated on the inside
with glue ; but as the crude oil had in it some water, the glue
coating did not prove a complete protection, and the loss through
leakage was very considerable. Oil Creek and Allegheny River
were the only chahnels through which petroleum could be car-
ried to a market. On reaching the creek the barrels were
placed on rafts and floated down to the Allegheny, if the supply
of water would permit it. The expedient of damming the
stream at a number of places and releasing the watter suddenly
IlISTOKICAI. SKETCH. ' 27
was adopted. Often tlie accumulations of these rafts or boats
were many, and when the jwnd-freshets came and the boats were
turned loose in the stream, there being no means of controlling
them, the loss Avas at times very great, arising from confusion
and frequent collisions and wreckages. At one time the loss
was estimated at from 20,000 to 30,000 barrels. The empty
boats were towed up the stream again by horses, driven along
the banks of the creek, but more frequently in its bed or chan-
nel. At Oil City the barrels were transferred to boats and
steamers. At one time more than one thousand boats and thirty
steamers were engaged in the oil traffic at this place, resulting
in frequent collisions and jams, to the great loss of shippers.
During a freshet in May, 186-1-, the loss was over 25,000 barrels.
Bulk barges were soon introduced on the Allegheny and Ohio
Rivers, but as they frequently careened, because of the oil shift-
ing, the loss was considerable. To remedy this, the oil space
was cut into apartments or rooms, to prevent the shifting.
The railroads early saw their opportunity, and entered the oil
region. During the latter half of the year 18G5 they introduced
the tank car. At first they took an ordinary flat car, placed
upon it two tanks of four thousand gallons each, and securely
fastened it down. In 1870 or 1871 tanks of boiler iron were
introduced, which have continued in use until the present day,
cars being purposely constructed for them. Transportation of
so bulky a product as crude oil by means of wagon and rafts
and the use of barrels was evidently too expensive ; and as
early as the autumn of 1860 S. D. Kams of Parkersburg,
West Virginia, suggested the practicability of transporting
it in pipes laid on or in the ground. Tn 1862 J. L. Hutch-
inson ran a line of pipe on the celebrated Tarr farm over
a high hill to the first refinery in the oil region, depending upon
the principle of a syphon to carry the oil ; but the line was a
failure. In 1863 he laid a pipe line from the famous Sherman
well to the terminus of the railroad on the Miller farm, a
distance of three miles, depending upon hydraulic pressure ;
and although one thousand barrels were emptied into the line
at its beginning, only fifty reached their destination. Pumps
were resorted to, but on account of the inadequacy of the pipe
28 • OIL AND GAS.
joints, the loss of tlie oil was too great to transport it in this
manner. After a trial of two years the line was abandoned.
In 1865 Samnel Van Syckle, by joining the pipes with screw
and thimble, laid a line from the Miller farm to Pithole, a
distance of four miles. The pipe was laid two feet in the
ground ; and the ascent from the farm to Pitliole was six hun-
dred feet. By the application of pumps oil was easily delivered
at Pitliole. This was the first successful pipe line. The team-
sters realized that their business was seriously threatened ; and
they did just what the half-civilized oil haulers of the Baku
district did when the Xobel Brothers first introduced a pipe
line in that district — they tore up the line and broke it in pieces
as fast as he could lay it. Pie placed armed watchmen along the
entire line, just as was afterwards done in the Baku district ;
and after many sanguinary conflicts with the teamsters, main-
tained his pipe line. A second line was completed the next
Spring, running from Benninghoff to the Shaffer farm. As
early as 1877 there were ten pipe lines in the oil region. The
construction of the long distance lines Avas begun in 1880, and
several were extended until they reached the sea-board, one
even passed through Central Park in New York City at Sixty-
fourth street, in order to reach the refinery on Hunter's Point,
Long Island. There are now many hundred miles of ]>ipe lines
in use in the United States. In Russia their use is very com-
mon. Oil is shipped to foreign countries by steamers especially
built for that purpose, having their holds cut into many apartr
ments to prevent the oil shifting and sinking the vessels. Some
of these steamers carrv over one and a half million gallons.
This method of transportation has been in use many years oi>
the Caspian Sea.
§16. The j&rst oil lease.
We give, as a curiosity, a copy of the first oil lease. The
spring leased was situated in the famous Oil Creek region of
Pennsylvania :
" A<rro9d this fhiiilh day of July, A. D. IS.l.S. with J. D. Angier of
nierr^tiee Township, in the County of Venango, Fa., that he shall repair
HISTOKICAL SKETCH. 29
up and keep in order the old oil spring on land in said Cherrytree Town-
ship, or dig and make new springs, and the expenses to be deducted out
of the proceeds of the oil, and the balance, if any, to be equally divided, the
one-half to J. D. Angier and the other half to Brewer, Watson & Co., for
the full term of five years from this date. If profitable.
" Brewer, Watsox & Co.
" J. D. Angiek." 25
§17. Early use of artificial illuminating gas.
The earliest kno\^ni use of artificial gas for illuminating pur-
poses was in 1787 when Lord Dundonald of England obtained
gas from coal tar, and occasionally used it for lighting up the
hall of Culross Abbey. In 1792 William Murdoch, residing
at Redruth, Cornwall, succeeded in demonstrating that an illu-
minating gas could be obtained from coal ; and in 1797 publicly
showed his system as he had matured it. One year later he
was employed in the famous Soho workshop of Boulton and
Watt, located at Birmingham, England ; and he fitted up an
apparatus in that establishment for the manufacture of gas,
with which it was partly lighted. Shortly after his apparatus
was extended and gas manufactured for other establishments of
that manufacturing city. In 1801 M. Lebon of Paris intro-
duced into his house gas distilled from wood. Through the
efforts of F. A. Winsor of London, the Lyceum Theatre of that
city was lighted with gas in 1803. The first employment of
gas for street lighting was January 28, 1807, when Pall Mall,
London, was lighted. In 1810 Parliament passed an Act au-
thorizing the incorporation of a gas-light company; and two
years later the first gas-light company was incorporated, called
the " Chartered Gas-light and Coke Company." Westminster
bridge was lighted with gas in 1813, for the first time; and the
next year the streets of Westminster. In 1816 London was
lighted with it ; and so rapidly did it advance that by 1820
many of the principal cities of the kingdom, as well as Paris
and some other cities on the Continent, were lighted by its use.
It was used in many large workshops and public buildings. It
found its way into private houses very slowly; one of the rea-
25 Henry's History of Petroleum, 60.
30 OIL AND GAS.
sons for its slow progress arose from the annoyance occasioned
by it escaping from ill-fitted pipes, and the other, and perhajjs
justly so in a large measure, from apprehension of the danger
attending its use. By 1829 there were 200 gas works in Great
Britain. In the United States gas was first used for lighting in
Xewport, Rhode Island, in 1806, David Melville making and
using it in his house and in the street in front of it. In 1813 he
took out a patent on its manufacture, and lighted several large
factories. Four years later his process was applied to Beaver Tail
light-house, tliat being the first instance where gas was used in a
light-house lantern. In 1816 an attempt was made to manu-
facture gas for lighting purposes in Baltimore, but the attempt
was a failure, and success was not attained until 1821. The
next year it was introduced into Boston. In 1823 the New
York Gasrlight Company was formed, but because of the little
demand for gas it did not begin active operations until 1827,
Three years later, success having been assured, the Manhattan
Company was organized, which entered the field as a competi-
tor of the New York Company. Until 1849 both companies
made their gas from oil or rosin. Gas was not introduced into
Philadelphia until 1835. From 1824 to 1828 the New York
Gashlight Company manufactured gas from oil exclusively, and
sold the product at $10 per 1,000 feet. The gas manufactured
by this company from rosin from 1828 to 1848 was sold by it at
$7 per 1,000 feet. Wood gas was used at the Philadelphia gas
works as late as 1856.
CHAPTER II.
LEGAL STATUS OF OIL AND NATURAL GAS.
§18. Oil and natural gas a mineral.
§19. Part of realty.
§20. Ownership in earth.
§21. Compared with animals ferae naturae.
§22. When title vests in owner.
§23. Ownership of oil differs from that of water.
§24. Owner of land has only a qualified ownership.
§25. Qualified ownership in oil. — Power of legislature.
§26. Severance of oil or gas from realty.
§27. Recovery of severed product. — Trover.
§28. Wasting gas. — Injunction.
§29. Increasing flow of gas by pumping well.
§30. Pumping oil wells.
§31. Exploding nitroglycerin in well to increase flow.
§32. Maliciously boring well to injure another.
§33. Measure of damages for unlawfully taking oil and gas from the soil.
§34. When lessee acquires title to oil.
§35. Waste. — Part of realty. — Reservation.
§36. Partition.
§37. Oil and gas not synonymous.
§38. "Other valuable volatile substances."
§39. Natural gas not heat.
§40. Gas and oil an article of commerce.
§41. Judicial notice.
§42. Judicial knowledge of oil and gas properties.
§43. Plugging wells.
§44. Not subject to tariff law of 1890. '
§45. Entry of government oil lands.
§46. Property in oil tanks or pipe lines. — Larceny.
§18. Oil and natural gas a mineral.
Whatever may have been thought of oil or natural gas at one
time/ it is now established beyond any question that oil or pe-
troleum and natural gas are minerals, and judicially must be so
i Dunham v. Kirkpatrick, 101 Pa. St. 43.
31
32
OIL AND GAS,
treated.' Whether or not natural gas is a mineral was presented
in a Canadian case, and ably discussed. The question arose on
the construction of a section of the Municipal Act. The clause
construed was as follows : " The corporation of any township
or county, wherever minerals are found, may sell, or lease, by
public auction or otherwise, the right to take minerals found
upon or under any roads over which the to^vnship or county
may have jurisdiction, if considered expedient to do so." The
question was whether this sentence covered natural gas, and it
Avas decided that it did.^ It was also held that this statute au-
thorized the leasing of a highway for the purpose of drilling for
gas."
§19. Part of realty.
Oil and gas, until severed from the realty, are as much a part
of it as coal or stone. So long as they remain in the ground,
outside of an artificial receptacle at least, as the casing of a
well or a pipe line, they must be treated as a part of the realty
underneath the surface of which they lie.^ So much so are they
2 Murray v. Allard, 100 Tenn. 100;
43 S. W. Rep. 355; 39 L. R. A. 249;
66 Am. St. Rep. 740; Kelley v. Ohio
Oil Co., 57 Ohio St. 317; 49 N. E.
Rep. 399; 39 L. R. A. 765; 63 Am.
St. Rep. 721, affirming 6 Ohio C. Ct.
Dec. 470; 9 Ohio C. C. 511; 34
Wkly. L. Bull. 185; Wilson v.
Youst, 43 W. Va. 826; 28 S. E. Rep.
781 ; 39 L. R. A. 292 ; Funk v. Halde-
man, 53 Pa. St. 229; Thompson v.
Noble, 3 Pittsb. 201; 17 Pittsb. L.
Jr. 45; Stoughton's Appeal, 88 Pa.
St. 198; Roberts v. Jepson, 4 Land
Dec. 60; Piru Oil Co. 16 Land Dec.
117; Ontario Natural Gas Co. v.
Gosfield, 18 Ont. App. 626; 38 Am.
and Eng. Corp. 253; Brown v. Spill-
man, 155 U. S. 665; 15 Sup. Ct. Rep.
245; People's Gas Co. y. Tyner, 131
Ind. 277; 31 N. E. Rep. 59; 16 L. R.
A. 443; Hail v. Reed, 15 B. Mon.
479; 11 Morr. Min. Rep. 103;
Hughes V. United Lines, 119 N. Y.
423; 23 N. E. Rep. 1042; Westmore-
land, etc., Co. V. DeWitt, 130 Pa. St.
235; 18 Atl. Rep. 724; 5 L. R. A.
731; 29 Amer. L. Reg. 93; Given v.
State (Ind.), 66 N. E. Rep. 750.
3 Ontario Natural Gas Co. v.
Smart, 19 Ont. Rep. 595.
* Ontario Natural Gas Co. v. Gas-
field, 18 Ont. App. Kep. 626; 38 Am.
and Eng. Corp. Cas. 253 ; see Gesner
V. Cairns, 2 Allen (N. B.), 595; and
Gesner v. Gas Co., James Rep. (N.
B.), 72; In re Buffalo Natural Gas
Co., 73 Fed. Rep. 191; Maxwell v.
Brierly, 10 Copp. L. D. 50; Roberts
V. Jepson, 4 L. D. 60.
5 Hail V. Reed, 15 B. Mon. 479; 11
Morr. Min. Rep. 103; Columbian Oil
Co. V. Blake, 13 Ind. App. 680; 42
N. E. Rep. 234; People's Gas Co. v.
Tyner, 131 Ind. 277; 31 N. E. Rep.
59; 16 L. R. A. 443; Bro\VTi v. Spill-
LEGAL STATUS.
33
a part of the realty, as we shall re}D€atedly see hereafter, that
a conveyance of them in their natural state in the earth requires
all the formalities of a conveyance of any other interest in the
same real estate." A reservation of "■ all mines, minerals and
metals in and imder " a tract of land is a reservation of tJie
oil and gas.^
§20. Ownership in earth.
The owner of the surface is the owner of the gas and oil
beneath it ; but if they escape into the land of another he ceases
to be the owner of them. They are the subject of grant or con-
veyance, just as much so as the grant or conveyance of coal or
stone buried in the soil of the same tract of land.*
§21. Compared with animals ferae naturae.
In seeking for analogous conditions in the law, courts have
compared natural gas and oil to that of animals ferae naturae.
The Supreme Court of Pennsylvania made this comparison in a
case that has become a leading authority wherever the subject
of gas and oil is discussed. " Water and oil," said the court,
man, 155 U. S. 665; 15 Sup. Ct.
Rep. 245 ; Acheson v. Stevenson, 146
Pa. St. 299; 23 Atl. Rep. 331, 396;
Williamson v. Jones, 39 W. Va. 231 ;
19 S. E. Rep. 436; 25 L. R. A. 222;
Stoughton's Appeal, 88 Pa. St. 198;
Funk V. Haldeman, 53 Pa. St. 229.
6 Heller v. Dailey, 28 Ind. App.
555; 63 N. E. Rep. 490; American
Winaow Glass Co. v. Williams (Ind.
App.), 66 X. E. Rep. 912.
7 Murray v. Allard, 100 Tenn. 100;
43 S. W. Rep. 353 ; 39 L. R. A. 249 ;
66 Am. St. Rep. 740.
8 Hail V. Reed. 15 B. Mon. 479;
11 Morr. Min. Rep. 103; People's
Gas Co. V. Tyner, 131 Ind. 277; 31
N. E. Rep. 59; 16 L. R. A. 443;
Manufacturer, etc., Co. v. Indiana,
etc., Co., 155 Ind. 4S1 ; 57 K E. Rep.
912; 57 L. R. A. 768; State v. Ohio
Oil Co.. 150 Ind. 21; 49 N. E. Rep.
809; 47 L. R. A. 627; Ohio Oil Co.
V. Imiianr., 177 U. S. 190; 20 Sup.
Ct. Rep. 585; Townsend v. State,
147 Ind. 624; 47 N. E. Rep. 19; 37
L. R. A. 294 ; Hughes v. United Pipe
Lines, 119 N. Y. 423; 23 N. E. Rep.
1042; Keir v. Peterson, 41 Pa. St.
357 ; Westmoreland, etc., Co. v. De-
Vritt, 130 Pa. St. 235; 18 Atl. Rep.
724; 5 L. R. A. 731; 29 Amer. L.
Reg. 93; Acheson v. Stevenson, 146
Pa. St. 299; 23 Atl. Rep. 331, 336
Hague V. Wheeler, 157 Pa. St. 324
27 Atl. Rep. 714; 22 L. R. A. 141
Wood County, etc.. Co. v. Wert Vir-
ginia, etc., Co., 28 W. Va. 210; Wil-
li?mson v. Jones. 39 W. Va. 231 ; 19
S. E. Rep. 436 ; 25 L. R. A. 222.
34 OIL AND GAS.
"" and still more strongly gas, may be classed by themselves, if
the analogy be not too fanciful, as minerals ferae naturae. In
common with animals, and nnlike other minerals, they have
the jx)wer and tendency to escape Avithont the volition of the
OA\aier. Their * fugitive and wandering existence within the
limits of a particular tract is uucertain,' " They belong to the
owner of the land and are part of it, and are subject to his
control ; but when they escape, and go into other land, or come
under another's control, the title of the former owner is gone.
Possession of the land, therefore, is not necessarily possession
of the gas. If an adjoining, or even a distant, owner drills his
own land, and taps your gas, so that it comes into his well and
under his control, it is no longer yours but his." ^*^
§22. When title vests in owner.
It has been said repeatedly by the courts and A\Titers that the
owner of the soil owns the gas and oil l>eneath its surface ; and
expressions to this effect will be found in this work. This is
an acknowledgment of the absolute ownership of the gas and oil
beneath the surface by the owner of the land.^^ But under the
Indiana decisions, which have met with the approval of the Su-
preme Court of the United States,^" the owner of the land has
only a qualified right to the oil and gas beneath the surface —
the right to reduce it to possession and to exclude all others exer-
cising the right on the premises — and title in him to it does
not vest until he has reduced it to nctual possession, either by
bringing it into a well or into a ])iix? line, or into a tank or
other receptacle in case of oil. Until that has happened the gas
or oil by natural forces may escape from his land, be reduced
to possession by another, and become his property. ^^
9 Quoting from Brown v. Vander- L. R. A. 294; Lowther Oil Co. v.
grifc. 80 Pa. St. 147. Miller (W. Va.), 44 S. E. Rep. 433.
10 W estmoreland, etc., Co. v. De- n See Jones v Forest Oil Co., 194
Witt, 130 Pa. St. 235; 18 At!. Rep. Pa. St. 379; 44 Atl. Rep. 1074; 30
724; 5 L. R. A. 731; 29 Amer. L. Pittsb. L. J. (N. S.) 58; 48 L. K.
Reg. 93; People's Gas Co. v. Tyner, A. 748.
131 Ind. 277; 31 N. E. Rep. 59; 16 12 Ohio Oil Co. v. Indiana, 177 U.
L. R. A. 443; Townsend v. State, S. 190; 20 Sup. Ct. Rep. 585.
147 Ind. 624; 47 N. E. Rep. 19; 37 1 3 State v. Ohio Oil Co., 150 Ind.
LEGAL STATUS, tj.>
^23. Ownership of oil differs from that of water.
The ownership of oil, however, is not identical with the own-
ership of water. It is trne both are regarded as minerals, and
are also regarded as liquids; in this respect they are legally and
physically identical.
'' The second ground of defense," said the Court of Appeals
of Kentucky, " relies upon the fact that the oil was taken from
a well bored down to a running stream of oil, which was vague
and fugitive, and had not been confined, nor ever reduced to
possession, nor ever in possession of plaintiffs. And in sup^
port of this ground we are presented with a very ingenious ar-
gument, founded on the principles laid down by elementary
authors Avith respect to water, which Blackstone says must
unavoidably remain in common, susceptible only of a usufruc-
tuary projx^rty, belonging to the first occu]>ant during the time
he holds possession of them, and no longer. Whence it is ar-
gued that this oil, being a liquid like water, and flowing, as
alleged in a stream at the bottom of this well, was common to
all, susceptible only of a usufructuary property, and that tho
particular jxjrtion of it now in contest belonged to the defend-
ants, as the first occupants and appropriators of it. But it is to'
be observed that the portion of Blackstone to which reference is
made, is a treatise upon pro])erty in general; that is, upon the.
]>rinciples on which the right of property in external things
depends, and which he states especially with respect to water,
the broad ]U"inci]>les applicable to the subject in its most general
aspect, without reference to any distinctions or discriminationa
by which they might be modified. Then, besides the fact that
water is not oil, and that while nature furnishes the former al-
most everywhere, for the common use of man, as being a mii-
versal necessity, she furnishes the latter, for the most part, only
as the result of arduous labor and intricate processes, and but
rarely produces it in its perfect state ; it is to be remarked that
water itself, though found generally running upon the surface
21; 49 N. E. Rep. 809; 47 L. R. A. N. E. Rep. 912; 50 L. R. A. 768;
627; Manufacturer, etc.. Co. v. In- Townsend v. State. 147 Ind. 624; 47
diana. etc.. Co., 1.5.5 Ind. 461; .57 N. E. Rep. 21; 37 L. R. A. 294.
36 OIL AND GAS.
of tlie earth, where it may be obtained for use bv merely taking
it, and where, being furnished by nature for the use of all who
may conveniently nse it, it is only to be appropriated by use
and for use, yet it is also frequently found under the surface,
and obtained or reached at great expense and labor, by means
of wells by which it is intended to be appropriated. This dis-
crimination is not made, nor was it necessary for the pur])oses
of tlie author that it should be made in the general view which
he was taking of property in general. The very title of the
chapter, and the nature of his observations, would lead to the
conclusion that he was speaking of w^ater as it is furnished by
nature for the ordinary use of man, and as it is commonly found
running u])on the surface of the earth. The very fact that,
after illustrating the principle of property being founded on
occupancy and on labor, by reference to the well made by one of
the ancient patriarchs, he takes no notice of wells when he comes
to treat of water as a subject of property, shows that he thought
only of water on the surface, or that he considered a well by
which it might be obtained from beneath the surface as a means
of appropriation. The other authorities referred to treat espe-
cially of water on the surface ; the first, considering the subject
under the title of running waters, and showing that he is con-
sidering water running over land, and the other treating the
subject under the title of water courses, and both stating chiefly
the rights of riparian owners. The latter, however, treats spe-
cially, though briefly, of springs, as to which he says the owner
of land is entitled to all advantages arising from it, and may
use a spring found upon it, as he does any other property,
without regard to the convenience or advantage of others. And
that this right is very different from the right of the owner of
an estate through which water flows. What becomes, then, of
the common right of all to the use of the water in the spring, if
it may be thus exclusively claimed and used and owned by the
owner of the soil ? And if the water in a spring found on his
land is thus his exclusive property, there seems to be much more
reason to say that water at the bottom of a well which he has by
his labor and expense constructed for the very purpose of re-
taining water in it for his use, and of facilitating the access to
LEGAL STATUS. 37
it, is his exclusive prcpei'ty. And still stronger is the reason
for considering him as the exclusive owner of oil, a peculiar
li(inid not necessary nor indeed suitable for the common use of
man, and for reaching and obtaining which for its proper uses
and for profit, he has constructed a well with suitable fixtures.
Tt is indeed said in the answer, though it is scarcely to be seen
in the evidence, that this well is bored down to a stream of oil.
But while there are but slight traces even of a seeping of oil
through the well, it is neither alleged nor proved that the well
presents no obstruction to the stream or flow of oil, or that it
does not hold or retain at least a portion of it, for facility in
drawing it out. We know that in wells for drawing water it
is usual, and, where the supply is small, necessary to sink the
well below the point where the water enters it, so that it may
])e retained there in sufficient quantities for use, and for drawing
it up. There is nothing to show that this was not the case in
the present instance, and the jury might have so found. But
we are of opinion that whether the water or oil is running
through the well in a stream or not, that which is actually in the
well is, while it is there, and subject to be dra^vn out, though it
be there only in passing from one side of it to the other, apr
propriated by the owner to his own use, and belongs to him when
it is drawn out, unless this is done by his license and for an-
other's use. If, as may be presumed, the well is sunk below the
point at which the water or oil enters, or if the water or oil, in
any quantity, stands in it until dra\^Ti out, the evidence of api-
propriation is still stronger, and the right of the o\\mer more
easily established. And in either case, the water or oil, if
drawn up by a wrong-doer, is the property of the person entitled
to the well, or its exclusive use, and may be specifically recov-
ered. Whether the barrels in which the wrong-doer has placed
it may also be recovered with the oil, or other barrels should be
furnished by the owner, we need not at present decide." ^^
§24. Owner of land has only a qualified ownership.
The Supreme Court of Indiana, while having repeatedly re-
ferred to the fact that the ownership of oil and gas is compared
"Hail V. Reed, 15 B. Mon. 479; 11 Morr. Min. Rep. 103.
38 OIL AND GAS.
'witli tlie ownorship of animals ferae naturae, has pointed ont
that the owner of land does not own the wild animals that may
be npon it until he has reduced them to actual possession, al-
though he has the right to prohibit any one else taking them so
long as they remain on his land. That court quotes from a
Minnesota case ^^ with respect to the ownership of wild animals,
in which it is said: " We take it to be the correct doctrine in
this country that tlie ownership of wild animals, so far as they
are capable of ownership, is in the State, not as proprietors, but
in its sovereign capacity as the representative, and for the bene-
fit, of all its people in common. The preservation of such
animals as are adapted to eonsimiption as food, or to any other
useful purpose, is a matter of public interest; and it is within
the police power of the State, as the representative of the j^eople
in their united sovereignty, to enact such laws as will pre-
serve such game, and secure its beneficial use in the future to
the citizens, and to that end it may adopt any reasonable regu-
lations, not only as to time and manner in which such game may
be taken and killed, but also by imposing limitations upon the
right of property in such game after it has been reduced to
possession." After having made this quotation, and also re-
ferring to the fact that it had likened the ownership of natural
gas and oil to the owmership of wild beasts, the Indiana court
said :
" There is no such thing in such laws, either as to wild ani-
mals or fish, to tlie effect that they become the property of the
owner of the land on which the animals are found, or in the
waters of which the fish are found. And there is no such thing
in such laws to the effect that after title has once vested by
actual i^eduction to possession, that the same may wander off
and vest in some one else. To say that the title to natural gas
vests in the owner of the land in or under which it exists today,
and that tomorrow, having passed into or under the land of an
adjoining owner, it thereby becomes his property, is no less ab-
surd and contrary to all the analogy of the law, than to say tli'it
wild animals or fowls in ' their fugitive and wandering exist-
ence,' in passing over the land, become the property of the owner
"State V. Rodman, 58 Minn. 393; 59 N. W. Rep. 1098.
LEGAL STATUS. 39
of sueli land, or tliat fisli in tlieir passage up or down a stream*
of water become the property of each successive owner over
whose hind the stream passes. It is as unreasonable and un-
tenable as to say that the air and the sunshine which float over
the owner's land are a part of the land, and are the property of
the owner of the land. We therefore hold that the title to
natural gas does not vest in any private owner until it is reduced
to actual possession, and therefore that the Act from which we
have quoted is not violative of the Constitution, as an miwar-
ranted interference with private property." ^®
§25. Qualified ownership in oil. — Power of legislature.
The case from which the quotation has been made in the
next preceding section was carried to the Supreme Court of
the United States ; and in affirming it that court used the follow-
ing language :
" If the analogy between animals ferae naturae and mineral
-deposits of oil and gas, stated by the Pennsyl\^ania court and
adopted by the Indiana court, instead of simply establishing
a similarity of relation, proved the identity of the two things,
there would be an end of tlie case. This follows because things
which are ferae naturae belong to the ' negative community ' ;
in other words, are public things subject to the absolute con-
trol of the State, which, although it allows them to be reduced
to possession, may at its will not only regulate but wholly for-
bid their future taking. But whilst there is an analogy be-
tween animals ferae naturae and the moving deposits of oil and
natural gas, there is not identity between them. Thus, the
owner of land has the exclusive right on his property to reduce
the g?.me there found to possession, just as the owner of the
soil has the exclusive right to reduce to possession the deposits
■of natural gas and oil found beneath the surface of his land.
The owner of the soil cannot follow game when it passes from
1" State V. Oliio Oil Co.. 150 Ind. Rep. .'iS.t; People's Gas Co. v. Tyner,
21; 49 N. E. Ren. 800; 47 L. R. A. 1?,1 Tiid. 277; .31 N. E. Rep. 60; 16
627; affirmed Ohio Oil Co. v. Tn- L. R. A. 443.
Jiar.a, 177 U. S. inO; 20 Sup. Ct.
40 OIL AND GAS.
his property ; so, also, tlie owner may not follow the natural
gas M'hen it shifts from beneath his own to the property oi
some one else within the gas field. It being true as to both
animals ferae naturae and gas and oil, therefore, that whilst tlie
right to ap])ropriate and become the owner exists, proprietor-
ship does not take place until the particular subjects of the right
become property by being reduced to actnal possession. The
identity, however, is for many reasons Avanting. In things,
feme naturae all are endowed with the power of seeking to
reduce a portion of the ]mblic property to the domain of pri-
vate ownership by reducing them to possession. In the ease
of natural gas and oil no snch right exists in the public. It is
vested only in the owners in fee of the surface of the earth
within the area of the gas field. This difference points at
once to the distinction between the power which the lawmaker
may exercise as to the two. In the one, as the public are the
owmers, every one may be absolutely prevented from seeking to
reduce to possession. Xo divesting of private property, under
such a condition, can be conceived because the public are the
o^vners, and the enacting by the State of a law as to the public
ownership is but the discharge of the governmental trust rest-
ing in the States as to property of that character. On the
other hand, as to gas and oil, the surface proprietors within
the gas field all have the right to reduce to possession the gas
and oil beneath. They could not be absolutely deprived of this
right which belongs to them without a taking of private prop-
erty. But there is a co-equal right in them all to take from
a common source of supply, the two substances which in the
nature of things are united, though separate. It follows from
the essence of their right and from the situation of the things,
as to which it can be exerted, that the use l)v one of his power
to seek to convert a part of the common fund to actual posses-
sion may result in an undue proportion lx>ing attributed to one
of the possessors of the right, to the annihilation of the rights
of the remainder. Hence it is that the legislative power, from
the peculiar nature of the right and objects upon which it is to
be exerted, can be manifested for the purpose of protecting ail
the collective owners by securing a just distribution, to arise
LEGAL STATUS. 41
from the enjovnient by tLeni, of their privilege to reduce to pos-
session, and to reach the like end by preventing waste. This
necessarily implied legislative authority is borne out by the
analogy suggested by things ferae naturae, which it is unques-
tioned the legislature has the authority to forbid all from tak-
ing, in order to protect them from undue destruction, so that
the right of the common owners, the public, to reduce to posses-
sion may be ultimately efficaciously enjoyed. Viewed, then,
as a statute to protect or to prevent the waste of the common
property of the surface o^vners, the law of the State of Indiana
which is here attacked because it is asserted that it divested
private property without due compensation, in substance, is a
statute protecting private property and preventing it from being
taken by one of the common owners, without regard to the en-
joyment of the others. Indeed, the entire argument, upon
which tlie attack on the statute must depend, involves a
dilemma, which is this: If the right of the collective owners
of the surface to take from the common fund, and thus reduce
a portion of it to possession, does not create a property interest
in the common fund, then the statute does not provide for the
taking of private property without compensation. If, on the
other hand, there be, as a consequence of the right of the surr
face o"\vners to reduce to possession, a right of property in them,
in and to the substances contained in the common reservoir of
supply, then as a necessary result of the right of property, its
indivisible quality and tlie peculiar iX)sition of the things to
which it relates, tliere must arise the legislative power to pro-
tect the right of property from destruction. To illustrate by
another form of statement, the argum.ent is this : There is
property in the surface owners in the gas and oil held in the
natural reservoir. Their right to take cannot be regulated
without divesting them of their property without adequate com-
pensation, in violation of the Fourteenth Amendment, and this,
although it be that if regulation cannot be exerted one property
owner may deprive all the others of their rights, since his act
in so doing will be damnum absque injuria. This is but to say
that one common owner may divest all the others of their rights
without wTorng-doing, but the lawmaking power cannot protect
42
OIL AND GAS,
all the owners in their enjoyment without violating the Constitu-
tion of the United States." ''
§26. Severance of oil or gas from realty.
In instances of solid minerals the severance of them by arti-
ficial means renders them personal property, the ownership of
which is presumptively in the owner of the land, or if the land
has been leased for mining purposes, in the lessee.^^ But if a
wrong-doer with felonious intent sever the mineral and take it
away, his act is not a larceny, but merely a trespass.^'' If the
act of severance be at one time, and the carrying away at an-
other, the taking will, however, be larceny."'' The act of sever-
ance and the act of carrying away must be a continuing one^
without separation ; for if it is not, the severed mineral becomes
the personal property of the owner of the realty."^ It matters
not that the mineral is severed by a stranger ; for in such an
instance it becomes as much personal property as if the owner
had severed it; "^ and still remains the property of the land
owner. '^ All that has been said of solid minerals is true of oil
and gas. As soon as they are severed from the earth they be-
come personal pro]Derty.'* Whenever oil or gas is brought to
17 Ohio Oil Co. V. Indiana, 177 U.
S. 190; 20 Sup. Ct. Rep. 585; Given
V. State (Ind.), 66 N. E. Rep. 750;
Richmond Natural Gas Co. v. Enter-
prise Natural Gas Co. (Ind. App.),
66 N; E. Rep. 782; Lowther Oil Co.
V. Miller, etc., Co. (W. Va.), 44 S.
E. Rep. 4b3.
For waste of artesian water, see
Huber v. Merkel (Wis.), 94 N. W.
Rep. 354.
IS Leport v. Mining Co., 3 N. J. L
J. C80j Brown v. Morris, 83 N. C
251 ; Watts v. Tibbals, 6 Pa. St. 447
Rhoades v. Patric"k, 27 Pa. St. 323
Lyon V. Grorley, 53 Pa. St. 261
Green v. Ashland Iron Co., 62 Pa
St. 97; Lykens Valley Coal Co. v
Dock. 62 Pa. St. 232; Nohle v. Syl
roster. 42 Vt. 146; Forbes v. Gracey,
94 U. S. 762.
V. Steinlincr,
Stevens, 1 Taunt
in People V. Williams, 35 Cat 671 ;
Commonwealth v. Steinling, 156 Pa.
St. 400; 27 Atl. Rep. 297; State v.
Burt, 64 N. C. 619.
20 Commonwealth v. Steinling,
supra.
21 Commonwealth
supra.
22 Attersoll
183.
23 Hughes V. United Pipe LinQS,
119 N. Y. 423; 23 N. E. Rep. 1042.
24 Stoughton's Appeal, 88 Pn. St.
198; Shepherd v. McCIamont oil^
Co., 38 Hun 37; Hail v. Reed. 15 P.
Mon. 479; 11 Morr. Min. Rep. lOS
Hughes V. United Pipe Lines, ftiiprn
Wagner v. Mallory, 169 N. Y. 501
62 N. E. Rep. 584; affirming 58 N
Y. Supp. 526.
LEGAL STATUS. 43
the surface and confined in tanks or pipe lines it becomes per-
sonal property of the owner of the well."^ If a lessee own the
well, it is his property, unless the land owner is entitled to a
specific part, in which event, they own it jointly until a division
is made.^" If oil or gas be taken from the real estate, it still
belongs to the owner of the land or the lessee, as the case
may be.^"
§27. Recovery of severed product. — Trover.
The owner of the land, or the lessee of it, from which oil has
been taken may recover possession of it wherever he can find it ;
and for that purpose an action of replevin will lie;'^ or he
may bring an action in trover.^^ A purchaser of oil wrongfully
taken from the soil gains no title to it; and the owner of the
land may pursue and recover it or its value wherever he may
find it."'' Even a purchaser from a person who took the oil from
land under a license from a co-tenant is liable for its conver-
sion, the same as the person who took it.^^ In the case of a life
estate, the remainderman who is in being and would take the
estate if the life estate w^ere extinguished, will be entitled to
the possession of all the oil taken by the life tenant or by a
stranger from wells sunk after the life estate was created. ^^
But neither replevin nor trover will lie against a pipe line com-
pany for the value of oil taken from land by one in adverse
25 Kelly V. Ohio Oil Co., 57 Ohio 562; 27 S. E. Rep. 411; 38 L. R. A.
St. 317; 49 N. E. Rep. 399; 39 L. R. 694; 64 Am. St. Rep. 891; Omaha,
A. 765; 63 Am. St. Rep. 721; State etc., Co. v. Tabor. 13 Colo. 41; 21
V. Indiana, etc., Co., 120 Ind. 575; Pac. Rep. 925.
22 N. E. Rep. 778; 6 L. R. A. 579; 29 Hail v. Reed, 15 B. Mon. 479;
29 Am. and Eng. Corp. Cas. 237. 11 Morr. Min. Rep. 103; Oak Ridge
26 Carter v. County Court, 45 W. Coal Co. v. Rogers, 108 Pa. St. 147.
Va. 806; 32 S. E. Rep. 216; 43 L. Contra, Kier v. Peterson. 41 Pa. St.
R. A. 725. 357.
27 Williamson v. Jones, 43 W. Va. 3o Hughes v. United Pipe Lines,
562; 27 S. E. Rep. 411; 38 L. R. A. 119 N. Y. 423; 23 N. E. Rep. 1042.
694 ; 64 Am. St. Rep. 891 ; Hughes 3i Omaha, etc., Co. v. Tabor, su-
V. United Pipe Lines, supra. pra.
28 Williamson v. Jones. 43 W. Va. 32 Williamson v. Jones, supra.
4:4 OIL AND GAS.
possession of such land, and delivered to the company for trans-
portation.^^
§28. Wasting gas. — Injunction.
So strongly is the notion of absolute ownership of the gas
and oil in the land by the owner of it, beneath which it is found,
embedded in our law, that without the aid of a statute the
owner of such land cannot be prevented from wasting it by the
owner of the adjoining premises. In the case of gas where two
wells are placed within a few feet of each other it is clear that
they draw gas from the same reservoir ; and this is true, of
course, when a boundary line between two tracts of land run be-
tween them. If, therefore, the owner of one of the wells persist
in leaving his well open, not using the gas, it is quite manifest
that the gas under the surface of the tract, or under a portion of
it, on which the well is not situated, will be drawn off and
wasted. And yet, with the notions of absolute ownership pre-
vailing with respect to gas beneath the surface of land, a court of
equity will not enjoin the waste, unless some positive statute for-
bid it.^* But where a statute forbade such a waste of gas, it was
held that the State, in its sovereign capacity, could enjoin the
waste; and the statute was upheld on the tlieory that the land
owner had no title to the gas or oil beneath the surface of the
tract of land he owns, except the right to drill on his own land to
take it into his possession ; and as long as he had no title to it,
the legislature had the right to prescribe the mode of tak-
ing it.^^
33Giffin V. Southwest, etc., Lines, 39 Wkly L. Bull. 54. See 6 Ohio
172 Pa. St. 580; 33 Atl. Rep. 578. Cir. Dec. 470; 40 Wkly. L. Bull.
See Anderson v. Hapler, 34 111. 436. 338; 3 Ohio Dec. 186.
34 Hague V. Wheeler, 157 Pa. St. 35 Manufacturers', etc., Co. v. In-
324; 33 W. N. C. 83; 27 Atl. Rep. diana. etc., Co., 155 Ind. 461; 57 N.
/14; 22 L. R. A. 141; Jones v. E. Rep. 912; 50 L. R. A. 768; Ohio
Forest City Oil Co., 194 Pa. St. 379; Oil Co. v. Indiana, 177 U. S. 190; 20
44 Atl. 1074 ; 48 L. R. A. 748 ; Kelly Sup. Ct. Rep. 585 ; Given v. State
V. Ohio Oil Co., 57 Ohio St. 317; 49 (Ind.), 66 N. E. Rep. 750; Rich-
N. E. Rep. 399 ; 39 L. R. A. 765 ; 63 mond, etc., Co. v. Enterprise, etc.,
Am. St. Rep. 721, affirming 9 Ohio Co. (Ind. App.), 66 N. E. Rep. 782.
C. C. Rep. 511; 38 Wkly. L. B. 299;
LEGAL STATUS. 45
The State also has the power to prevent the waste of gas by the
use of Flambeau Burners.^*'
§29. Increasing flow of gas by pumping well.
While every land owner has the right to bore for gas on his
own land, and to use snch portion of it as rises by natural laws
to the surface in his wells ot flows into his pipes, yet an adjoin-
ing owner, at least, has no right to induce an unnatural flow
into or through his well, or do any act with reference to the
common reservoir and the gas in it, injurious to or calculated
to destroy it ; and an action may be maintained by the owners
of the superincumbent lands to enjoin another owner from using
devices for pumping, or any other artificial process, that shall
have the effect of increasing the natural flow of the gas.^^ In
an earlier Indiana case a different rule was adopted.^^ In tlie
more recent Indiana case the following language was used in
discussing this question :
" Natural gas is a fluid mineral substance, subterraneous in
its origin and location, possessing, in a restricted degree, the
properties of underground waters, and resembling water in some
of its habits. Unlike water, it is not generally distributed, and,
so far as now understood, it can be used for but few purposes,
the most important being that of fuel. Its physical occurrence
is in limited quantities only, within circumscribed areas of
greater or less extent. If it could be dealt with as subterranean
waters, there would be little difficulty in detenuining the rules
by which the rights of land owners, and other persons interested
in it, should be governed. But the difference between natural
gas and underground waters, whether flowing in channels or
percolating the earth, is so marked that the principles which the
courts apply to questions relating to the latter are not adapted
to the adjustment of the difficulties arising from conflicting in,-
36Townsend v. State, 147 Ind. diana, etc.. Co., 155 Ind. 461; 57
624; 47 N. E. Rep. 19; 37 L. R. A. N. E. Rep. 912; 50 L. R. A. 768.
294; Given v. State, supra; Rich- 38 People's Gas Co. v. Tyner, 131
mond, etc., Co. v. Enterprise, etc., Ind. 277; 31 N. E. Rep. 59; 16 L.
Co., supra. R. A. 443.
37 Manvifacturers', etc., Co. v. In-
4G OIL AND GAS.
terests in tliis new and peculiar fluid. Natural gas being eon-
fined witliin limited territorial areas, and being accessible only
by means of wells or openings upon the lands underneath which
it exists, is not the subject of public rights in the same sense,
or to the same extent, as animals ferae naturae, and the like,
are said to be. Without the consent of the owner of the land,
the public cannot appropriate it, use it, or enjoy any benefit
whatever from it. This power of the owner of the land to ex-
clude the public from its use and enjoyment plainly distin-
guishes it from all other things with which it has been compared,
in the use, enjoyment and control, of which the public has the
right to participate, and tends to impress upon it, even when in
the ground in its natural state, at least in a qualified degree, one
of the characteristics or attributes of private property. In the
case of animals ferae naturae, fish, and the like, this public
interest is said to be represented by the sovereign or State. So,
in the case of navigable rivers and public highways, tlie State,
in behalf of the public, has the right to protect them from
injury, misuse, or destruction. But in the case of natural gas,
there are reasons why the right to protect it from entire destruo-
tion while in the ground should be exercised by the o^vners of
the land who are interested in the common reservoir. From
the necessity of the case, this right ought to reside somewhere,
and we are of the opinion that it is held, and may be exercised,
iby the owners of the land, as well as by the State. Natural gas
in the groimd is so far the subject of property rights in the
owners of the superincumbent lands, that while each of them
has the right to bore or mine for it on his own land, and to use
such portion of it as when left to the natural laws of fiowage
may rise in tlie wells of such owner and into his pipes, no one
of the owners of such lands has the right, without the consent of
all the other owners to induce an unnatural flow into, or through
liis own wells, or to do any act with reference to the common
reference to the common reservoir, and body of gas therein,
injurious to, or calculated to destroy it. In the case of lakes,
or flowing streams, it cannot be said that any particular part,
or quantity, or proportion of the water in them belongs to any
particular land orrijxirinn cviior, each having an eqmil right to
I.EGAI. STATUS. 4T
take what reasonable quantity lie will for his own use. But
the limitation is upon the manner of taking. So, in the case of
natural gas, tlie manner of taking must be reasonable, and not
injurious to, or destructive of, the common source from which
the gas is drawn. The right of each owner to take the gas
from tlie common reservoir is recognized by the law, but this
right is rendered valueless if one well owner may so exercise
his right as to destroy the reservoir, or to change its condition in
such manner that the gas Avill no longer exist there." ^^
§30. Pumping oil wells.
It is clear that the doctrine of the Indiana cases has its lim-
itations, and must not be carried too far. For in the case of oil
wells, if pumps cannot be used, little oil can be taken out, and
the land as an oil territory is practically useless. It is prac-
tically immaterial whether a gas well can be pumped if gas
cannot be otherwise obtained; for when it becomes necessary to
]nimp a gas well in order to get gas out of it, it is of no value
whatever as a gas well. But in the case of oil wells, hundreds,
if not thousands are pumped every day ; and if the right to use
a pump to get oil from them did not exist, few' would ever be
drilled. We think the right to pump them clearly exists.^" It
should be borne in mind that in the Indiana cases in which the
right to use a pump was discussed, the court had before it the
right to pump a gas well, and not an oil well.*^
§31. Exploding nitroglycerin in well to increase flow.
The o\mer of a well has the right to explode nitroglycerin or
other explosive in a well to increase the flow of gas or oil, even
39 Manufacturers', etc., Co. v. In- the well, consequently not increas-
diana, etc., Co., 155 Ind. 461; 57 N. ing the natural flow.
E. Rep. 912; .50 L. K. A. 768; Rich- 4 o Jones v. Forest Oil Co., 194 Pa.,
mond Natural Gas Co. v. Enterprise St. .379; 44 Atl. Rep. 1074; 48 i^. R.
Natural Gas Co. (Ind. App.). 66 N. A. 748.
E. Rep. 782. In this last case it 4i yee Manufacturers', etc., Co. v.
was held that no offence was com- Indiana, etc., Co.. 155 Ind. 461: 57
mitted where the pump did not de- N. E. Rep. 912; 50 L. R. A. 767;
stroy the back pressure of the gas. Manufacturers', etc., Co. v. Indiana,
and so did not create a suction in etc.. Co., 156 Ind. 679; 58 N. E. Rep.
706; 53 L. R. A. 134.
48 OIL AND GAS.
though he thereby may, or actually does, draw away the gas or
oil in the adjoining territory.*"
§32. Maliciously boring well to injure another.
No one has the right to use his property for the sole purpose
of injuring another. Such a right is not incident to ownership,
and the right to use proi>erty in that way does not extend that
far. So no one has the right to dig a well solely to drain an-
other's water well. Such an act in law is malicious.*^ What is
true of a well of water is true of a gas or oil well. If the owner
of land sink an oil or gas well on his own land for the sole pur-
pose of injuring the oil or gas well of another, and it has that
effect, he may be restrained by injunction.^*
§33. Measure of damages for unlawfully taking oil and gas from
the soil.
If oil has been unlawfully taken from the soil, the owner,
whoever he may be, has the option either to recover the oil or
its value. *^ Where the act of taking is a trespass, according
to one line of cases concerning solid minerals, the wrong-doer
is not entitled to be credited with the cost of taking out the
mineral, if he knew it belonged to the plaintiff.^*^ Another line
42 People's Gas Co. v. Tyner, 131 W. R. 685; Eideout v. Knox, 148
Ind. 277; 31 N. E. Rep. 59; 16 L. R. Mass. 368; 19 N. E. Rep. 390.
A. 443. 44 Dictum in Hague v. Wheeler,
The lessee is not bound to resort 157 Pa. St. 324; 33 W. N. C. 83; 27
to exploding nitroglycerin in a well Atl. Rep. 714; 22 L. R. A. 141.
he has drilled, in order to obtain oil 45 Buckley v. Kenyon, 10 East 139.
or gas and comply with his duty to 46 The cases we cite are cases with
use diligence in the development of respect to solid minerals. Martin
the premises, especially so where v. Porter, 5 M. and W. 352; 2 H.
there is little probability that the and H. 70; Benson, etc., Co. v. Alta,
explosion would produce paying re- etc., Co., 145 U. S. 428; 12 Sup. Ct.
suits. Rice V. Ege. 42 Fed. Rep. Rep. 877; Bennett v. Thompson. 13
661. See Foster V. Elk Fork Oil and Ired. L. 146; Kock v. Maryland
Gas Co., 90 Fed. Rop. 178. Coal Co., 68 Md. 125; 11 Atl. Rep.
43Chasemore v. Richards, 7 H. L. 700; Jegon v. Vivian, L. R. 6 Ch.
Cas. 349; 2 H. and N. 168; -^9 L. J. App. 742; 40 L. J. Ch. 389; 19 \V.
Exch. 81; 5 Jur. (N. S.) 873; 7 R. 365; McLean County Coal Co. v.
LEGAL STATUS. 49
of cases holds, in case of solid minerals, that the measure of
damages is the value of the mineral as it existed in place before
it was broken down.*' It must be patent, however, to eveiy
one that the last rule cannot be applied to a case of oil or gas,
because of the impossibility of determining the value of either
gas or oil in situ. In tlie case of a wilful or negligent tres-
pass the rule should follow the rule first above enumerated, and
the trespasser charged with the value of the oil or gas taken,
without any deduction for the cost of taking it out ; but if the
trespasser was innocent of the fact that he was such, and is not
guilty of negligence in entering upon the ground and taking
the oil or gas, the cost of extracting it should be allowed him.
This is the general rule where the trespasser is innocent of any
intent to do wrong, or has not been guilty of negligence.*^
§34. When lessee acquires title to oil.
A mere lessee — one who has no interest in the land itself, as
a grantee beneath the surface — does not acquire title to the
oil in the leased premises until it has l)een taken from the
ground.*^ In passing on this case the court said :
" It will be observed that there is, by the terms of the lease
no grant of the oil as it exists in the earth, so that there is no
Long, 81 111. 359; Wild v. Holt, 9 432; 36 L. J. Ch. 491; 16 L. T. 736;
M. and W. 672; 1 D. N. S. 876; 11 15 W. R. 1105; In re United Mer-
L. J. Exch. 285; Morgan v. Powell, thyr Coal Co., L. R. 15; Eq. 46; 21
9 M. and W. 672; Baker v. Hart, W. R. 117; Livingston v. Rawyards,
123 N. Y. 470; 25 X. E. Rep. 948. 5 App. Cas. 25; 42 L. T. 334; 28
Another line of cases hold that W. R. 357; Powell v. Aikin, 4 Kay
the measvire of damages is the value and J. 343 ; Cheesman v. Shreve. 40
of the mineral after severance and Fed. Rep. 787; Colorado, etc., Co. v.
before removal. Llynvi Coal Co. v. Turck, 70 Fed. Rep. 294; Golden Re-
Brogden, L. R. 11 ; Eq. 183; 40 L. J. ward Mining Co. v. Buxton, 97 Fed.
Ch. 46; 24 L. T. 612; Robertson v. Rep. 413; Durant Mining Co. v.
Jones, 71 111. 405; Sunnyside Coal Percy, etc., Co., 93 Fed. Rep. 166.
Co. V. Reitz, 14 Ind. App. 478; 43 48 Dyke v. National Transit Co..
N. E. Rep. 46; Tliomas, etc., Co. v. 22 N. Y. App. Div. 360; 49 N.. Y.
Herter, 60 111. App. 58 ; Illinois, etc., Supp. 180.
Ry. Co. V. Ogle, 82 111. 627 ; Barton 49 Wagner v. Mallory, 169 N. Y.
Coal Co. V. Cox, 39 Md. 1 ; Franklin 501 ; 6:^ N. E. Rep. 584 ; affirming
Coal Co. V. McMillan, 49 Md. .549. 58 N. Y. Supp. 526 ; Lowther Oil
47 Wood V. Morewood, 3 Q. B. 440, Co. v. Miller, etc., Co. (W. Va. ) .
note; Hilton v. Woods, L. R. 4 Eq. 44 S. E. Rep. 433.
50 on, ANL GAS,
passing of the title to the oil as it exists in its natural state^
but that the right is limited to the mining and excavating, or
the pumping and raising, of the oil from the premises. Jt is
a right to produce or extract the oil iroxn the earth, yielding
one-eighth thereof to the landlord. What was his riglii ? Was
it real estate or personal property ? It is said that leases of
this character are incorporeal hereditaments, and that petroleum
oil is a mineral, and is a part of the royalty like coal, iron
and copper. It is true, it is a mineral substance; but it widely
differs from the minerals mentioned, which are solids, having
a iixed location in the earth, like the rock itself. Petroleum
oil is a fluid found in the porous sand rock of the earth. In
some instances it doubtless exists in pools, but where are the
pools located ? They may be under the lands in which the well
is drilled. They may be in the abutting or remote lands, and
may drain into the wells through seams or crevices in the rock,
and then be extracted from the earth and reduced to possession
by the operator. In this respect oil resembles water as it
exists in the earth — especially salt and mineral waters, which
have a market value — and is largely governed by the same
rule of law. It consequently was held at a very early day in
the history of the petroleum oil production that a man could
not be restrained by his abutting neighbor from boring for oil
upon his own premises, although he located his well within a
few feet of the line, and would necessarily drain the oil from
his neighbor's land, if any existed therein. We consequently
are of the opinion that no title to the oil vested in the lessee until
it had been taken from the ground and reduced to possession."
§35. Waste,— part of realty Reservation.
Where a tenant for life was taking out oil and gas, it was
lield that such oil and gas formed a part of the realty, that he
conld not drill wells in order to take out the oil or gas,^*' and
that drilling a well and taking out gas or oil was an act of waste
^•'> 'l hougli lie could use the wells
drilled before the life estate was
estaolished.
l.EGAL STATUS. 51
within the legal definition of that, tenn.^^ So in the case of
^n infant's lands, the guardian cannot drill a well, extract the
-oil or gas and sell it ; nor can he dispose of it by way of lease or
otherwise.^" The same is true of a guardian of an insane or in-
competent person. '^'^ A conveyance of real estate, but reserving
" all mines, minerals and metals in and under the land," is a
reservation of the oil and gas.^* A demise or conveyance of a
tract of land, but reserving ten acres near the dwelling hovise on
which no wells shall be drilled, is a conveyance of the oil and
gas under the ten acres. '"'^ As between the first lessee and a
second one where the latter takes out oil or gas without the eon-
sent of the first, such oil or gas must be treated, before it is
extracted, as a part of the realty and the taking out of it as a
waste.^*^ It is not waste, however, for a land owner to put down
wells near his boundary lines, though the effect be to draw the
oil from beneath the surface of the adjoining land owned by
another.'^^ To extract it unlawfully is an irreparable injury
which to stop or prevent injunction lies.^^
§36. Partition.
The grantee of a mere mining right cannot maintain an action
:for partition as against his grantor. ^'^ Nor can the owners of
mineral rights in oil and gas have partition, for the reason that
neither gas nor oil is capable of distinct ownership so long as it
is in place. Today they may form a part of the premises of
the land occupied by their owner, but tomorrow they may have
51 Williamson v. Jones, 43 W. Va. sn Brown v. Spilman, 155 U. S.
562; 2/ S. E. Rep. 411; 38 L. H. A. 665; 15 Sup. Ct. IJep. 245.
694; 64 Am. St. Kep. 891; Marshall sc Bettman v. Harness, 42 VV. Va.
V. Mellon. 170 Pn. St. 371; 36 Atl. 443; 26 S. E. Hep. 271; .36 L. R. A.
Pep. 201 ; 35 L. H. A. 816. 566.
52 Stoughton's Appeal, 88 Pa. St. 57 Kdly v. Ohio Oil Co., 57 Ohio
198. St. 317; 49 N. E. Rep. 399; 39 L. K.
53 South Pennsylvania Oil Co. v. A. 765; 63 Am. St. Rep. 765.
Mclntire, 44 W. Va. 296; 28 S. E. es Moore v. Jennings, 47 W. Va.
Rep. 922. 181; 34 S. E. Rep. 793.
54 Murray v. Allard, 100, Tenn. . 59 Smith v. Cooley, 65 Cal. 46.
100; 43 S. W. Eep. 353; 39 L. R. A.
249; 66 Am. St. Rep. 740.
Oli OIL AND GAS.
escaped and formed a part of the adjoining or even other land,
without the volition or any act of their owners.^"
§37. Oil and gas not synonymous.
Oil and gas are not synonymous ; and a lease for oil purposes
does not embrace the right to take gas. If the lease requires the
production of oil, the production of gas will not satisfy the
covenant requiring a development, within a certain time, of the
territory for oil.*'^
S38. " Other valuable volatile substances."
O
Where the phrase " other valuable volatile substances " was
used in a lease in connection with the words " petroleum, rock
or carbon oil," the court ordered the issue to be tried by a jury,
whether or not natural gas was included in the words first
quoted, for the reason that the words have no well defined mean-
ing, and are ambiguous.*'"
§39. Natural gas not heat.
Natural gas is not heat Avithin the meaning of a statute pro-
viding for the incorporation of companies to supply heat.^^
§40. Gas and oil an article of commerce.
Both gas and oil are articles of commerce, when severed from
the soil, not, however, while remaining in it. When gas is car-
ried from State to State it is an article of interstate commerce,
lliough carried in pipe lines, as much so as coal, iron ore or any
f.oHall V. Vernon, 47 W. Va. 205; Peerless Eefining Co., 7 Ohio Dec.
M S. E. l^ep. 704; 49 L. R. A. 4G4. .368; i4 Ohio C. C. 315.
See Carter v. Tyler County Court, "s Ford v. Buchanan, 111 Pa. St.
45 W. Va. 80fi; 32 S. E. Rep. 21G; 31; 2 Atl. Pvep. 330.
43 L. P. A. 725. C3 Emerson y. Commonwealth, 108
<'i Palmer v. Truby, 136 Pa. St. Pa. St. 126; Lebanon Gas Co. v.
556; 20 Atl. Pep. 516; Taylor v. Lebanon Fuel, etc., Co., 5 Pa. Dist.
Pep. ,529; 18 Pa. Co. Ct. Pvep. 223.
LEGAL STxVTUS. 53
other mineral; and no greater restrictions can be laid upon it
than can be laid upon solid minerals severed from the soil, or
any other article of commerce. The carriage of oil and sas
beyond the boundaries of that State cannot be prohibited.
ib"-
§41. Judicial notice.
Courts will taJ\e judicial notice of the properties of petroleum
and natural gas, and that the latter is a highly inflammable and
dangerous substance."^ They will not, however, presume or
take judicial notice that gas confined in an iron pipe, is, in that
condition, a dangerous element and liable to explode. "^"^ So the
courts will take notice of the methods of oi>erating for oil and
gas, the means of their conduct to the points of consumption,
and the facts of the odor and noise incident to their produc-
tion.''^ Courts will also take judicial notice that coal oil is
inflammable ; ^® but they will not take judicial notice that
kerosene oil is a refined coal oil, or a refined earth oil,*'" or a
'' burning fluid " or " chemical oil " as such words are used in
a policy of insurance forbidding the use of such articles on the
insured premises.'^'^ Where the Legislature had declared that
certain grades and qualities of kerosene are proper and safe to
use, it was decided that judicial notice could not be invoked to
establish that kerosene used in a certain case was in fact inflam-
64 state V. Indiana, etc., Co.. 120 28 Am. St. Rep. 203; Indiana, etc.,
Ind. 575; 22 N. E. Rep. 778; 6 L. R. Co. v. Jones, 14 Ind. App. 55; 42 N.
A. 570 ; 29 Am. and Eng. Corp. Cas. E. Rep. 487.
237 ; 2 Inter St. Com. Rep. 758. See a court will not take judicial
Columbia Conduit Co. v. Com.. 90 notice that dry. tine coal dust is
Pa. St. 307 ; West Virginia Trans- dangerous and an explosive element,
portation Co. v. Volcanic Oil and Cherokee, etc., Co. v. Wilson, 47
Coal Co., 5 W. Va. 382; Jamieson v. Kan. 4G0; 28 Pac. Rep. 178.
Indiana Natural Gas Co.. 128 Ind. 66 Indiana, etc.. Co. v. Jones, sti-
555; 28 N. E. Rep. 76; 12 L. R. A. pra.
652; 34 Am. and Eng. Corp. Cas. I. e? Brown v. Spilman, 155 U. S.
cr> Jamieson v. Indiana, etc., Co., 670; 15 Sup. Ct. Rep. 245.
128 Ind. 5-55; 28 N. E. Rep. 76; 12 es state v. Hayes, 78 Mo. 307.
L. R. A. 652; 34 Am. and Eng. Corp. eo Bennett v. North British, etc.,
Cas. I; Alexandria, etc., Co. v. Irish. Ins. Co., 8 Daly 471.
16 Ind. App. 534; 44 N. E. Rep. 680; 70 Mark v. National Fire Ins. Co.,
Mississinewa Mining Co. v. Patton, 24 Hun 565; affirmed 91 N. Y. 663.
129 Ind. 472; 28 N. L. Rep. 1113;
54 OIL AND GAS.
mable or explosive/^ Nor will the courts take judicial notice
tliat gill and turpentine are inflammable liquids, within the
meaning of tliat term as used in an insurance policy that pro-
vides it shall be void if " inflammable liquids " are kept on the
premises/'
§42. Judicial knowledge of oil and gas properties.
" It is well understood among oil operators tJiat the fluid is
found deposited in a porous sand rock, at a distance ranging
from five hundred to three thousand feet below the surface.
This rock is saturated throughout its extent with oil, and when
the hard stratum overlying it is pierced by the drill, the oil
and gas find vent, and are forced, by the pressure to which they
are subject, into and through the Avell to the surface. After
this pressure is relieved by the outflow, the wells become less
active. The movement of the oil in the sand rock grows slug-
gish, and it becomes necessary to pump the wells both to quicken
the movement of oil from the surrounding rock, and to lift it
from the chamber at the bottom of the well to the surface. Aji
oil or gas well may thus draw its product from an indefinite dis-
tance, and in time exhaust a large space. Exact knowledge on
this subject is not at present attainable, but the vagrant char-
acter of the mineral, and the porous sand rock in which it is
found and through which it moves, fully justify the general
conclusion Ave have stated above, and have led to its general
adoption by practical operators. For this reason, an oil lease
partakes of the character of a lease for general tillage, rather
than that of a lease for mining and quarrying the solid min-
erals." "
§43. Plugging wells.
The state has the power to compel the o\vner of a disused or
abandoned well to plug it, so gas will not escape into the open
71 Wood V. N. VV. Ins. Co., 4G N. Y. 73 Wettengel v. Gormley, 160 Pa.
421. St. 559; 28 Atl. Rep. 934; 40 Am.
72 Mosley v. Vermont, etc., Ins. St. Rep. 733.
Co., 55 Vt. 142.
LEGAL STATUS. 55
jiir, niul tliereby the gas not only be wasted, but the natural
reservoirs be flooded with salt water to the destruction of the gas
and the jiractical destruction of the oil.^^
§44. Not subject to tariff law of 1890.
Under the tariff law of 1890 natural gas imported as a fuel
is not subject to a tariff duty under that clause of the statute
providing that all imports of crude bitimien or crude mineral
shall be admitted free : nor is it dutiable under the section pro-
viding that all raw or unmanufactured material not enumerated
shall be dutiable.'^
§45. Entry of government oil lands.
By Acts of Congress of August 4, 1894, and of February 11,
1897, oil lands can be entered as placer mining claims.^® " The
premises in controversy are oil-bearing lands, the government
title to which, under existing laws can alone he acquired pursu-
ant to the provisions of the mining laws relating to placer
claims." ''
§46. Property in oil in tanks or pipelines. — Larceny.
The presumption is that the person delivering oil to a pipe-
line company is the o\^Tier of it ; and if the company deny his
T 4 state V. Ohio Oil Co., 1.50 Ind. Act of 1897, see 29 Stat, at Large,
21; 49 N. E. Rep. 10.55; 47 L. R. A. 526, 2 Siipp. R. S. 549.
627; Ohio Oil Co. v. Indiana. 177 U. "Gird v. California Oil Co., 60
S. lt)0; 20 Sup. Ct. Rep. 576; State Fed. Rep. 531. This decision was
V. Oak Harbor Gas Co., 53 Ohio St. rendered before the two Acts re-
347; 41 N. E. Rep. 584; reversing 34 ferred to above had been adopted.
Wkly. L. Bull. 221 ; 18 Ohio C. Ct. The Land Department at Washing-
Rep. 751; 1 Toledo Leg. News, 474; ton, after much fluctuation, had
4 Ohio C. C. 158; Given v. State reached the same conclusion. Union
(Ind.). 66 X. E. Rep. 750. Oil Co., on review, 25 Land Dec. 351.
75 United States v. BuiTalo, etc.. See In re Piru Oil Co., 16 L. D. 117;
Co.. 172 U. S. 3.39; 19 Sup. Ct. Rep. Roberts vs. Jepson, 4 L. D. 60:
200: affirming 78 Fed. Rep. 110; 45 Maxwell v. Brierly. 10 Copps L. D.
U. S. App. 345: 24 C. C. A. 4. 50; Ex parte Union Oil Co.. 23 Land
■ fi See Land Office Circular. Oct. Dec. 222; In re A. A. Dewey. 9
12, 1892, 15 Land Dec. 760. and In- Copps L. O. .51 : Dewey v. Rogers, 2
structions. 23 Land Dec. 322. For Land Dec. 707 : In re Rogers. 4 Land
Dee. 284.
56 OIL AND GAS.
ownership, it has the hurdeii of proving it.'^^ Oil in a tank may
be pledged ; and a written order to the owner's agent in charge
of the oil to hold it to the order of the pledgee as collateral secur-
ity for a named snm of money transfers the oil to the pledgee
on the agent's acceptance of such order.''' Where B, the owner
of several hundred barrels of oil in the pipes and tanks of the
Union Pipe Line Company, delivered two orders on the com-
pany for the oil, which he had accepted, to the firm of H. & B.
and took from them a receipt containing an agreement by them
to hold the oil for storage at five cents a barrel per month, the
oil at the time being in The tanks or pipe lines of the pipe-line
company and undistinguishable from other oil in them ; and H.
& B. deposited the two orders to the credit of their general ac-
count with the pipe-line company, and afterwards deposited and
drew until they became embarrassed, and, to meet their obliga-
tions, continued to draw" on their balances on the books of the
pipe-line company until they failed, it was held that they were
guilty of larceny as bailees, on failure to comply with the de-
mand of B. for a re-delivery of the oil. It was considered that
the delivery of the receipts was a delivery of the oil and consti-
tuted a bailment, and H. & B. having converted the oil to their
own use, the conversion was fraudulent, and they were guilty of
larceny. The court said :
" In the consideration of the questions involved in this case,
we cannot close our eyes to the total revolution in the manner of
doing business, w^hich has been brought about by the discovery
of petroleum in this State. It has developed a new industry of
vast importance. Methods for conducting it have been devised
and put in operation, which were wdiolly unknown when the
cases I have cited w^ere decided. Instead of oil being hauled a
long distance from the well to a market or shipping station, and
there stored in barrels or in tanks in a merchant's ware-rooms,
' it is now turned at once by the producer into the pipes of the
Pipe^Line Company, and thence conducted to the line of the
railroad or canal for shipment, or may be in said pipes, or lh >
78 Enterprise Oil and Gas Co. v. 79 Fjrst National Bank v. Ilaik-
National Transit Co., 172 Pa. St. ness. 42 W. Va. 156; 24 S. E. Kop.
421; 33 Atl. Rep. 687. 548; 32 L. R. A. 408.
LEGAL STATUS. 57
tanks connected therewith. Each producer knows that his oil
is mixed with the oil of other producers. Each barrel of oil in
the pipes is the precise counterpart of every other barrel con-
tained therein. It differs neither in quantity, quality or price.
The oil is sold and passes from hand to hand upon the accepted
orders or certificates of the Pipe-Line Company.
Thousands of barrels of oil are sold and delivered daily in the
market upon similar orders. No one doubts that the property
passes ; that the orders drawn to them are the constructive pos-
session, and that the delivery of said orders is a symbolical deliv-
ery of the oil. . . . How can these defendants allege with
reason that as to them there was no delivery, when, in point of
fact, they drew the oil out of the pipes and applied it to the pay-
ment of their debts ? If it had not been drawn out, it would
have been in the pipes still to meet the demand of the prosecutor.
Even if delivery of the orders was not a complete delivery of the
oil at that time, such delivery became complete when the defend-
ants drew it out, or enabled others to draw it out by a transfer
of the orders. It would render the law contemptible in the eyes
of the business men, were it to say that there was no delivery of
this oil when, as a matter of fact, there was a delivery for all
the purposes of trade and commerce ; such a delivery as enabled
the defendants to sell it and apply the proceeds to the payment
of their debts." And further: " If there w^as a delivery of
the oil, of which we have no doubt, it follows necessarily that
there was a bailment. This brings us to the further question
whether the defendants fraudulently converted it to their ovni
use. This point is free from difficulty. It is a fraud per se
for a bailee to convert to his own use the property committed to
his care. The conversion is, prima facie, evidence of the fraud.
Larceny at common law involves something more. It requires
the animus furandi. There must be a felonious taking. jSTot
so with larceny as bailee. It requires merely a fraudulent con-
version. ... In the case of a bailment, therefore, so far
as the intent to defraud may be regarded as of the essence of the
crime, it must be presumed from the unlaAvful conversion. If
I deposit my pocketbook for safe keeping over night with my
landlord, and he opens it and converts tlie contents to his own
58 OIL AND GAS.
use, he is a thief both in law and in morals. Isor does it matter
that he parted with it to pay his debt under stress of an execu-
tion, with the intention of restoring it to me ultimately.
But it is said that the defendants were bankers in. oil, and th;it
the case resembled that of the ordinary banker who receives
money upon deposit. It is difficult to see the analogy. By the
laws and the usage of banking, the depositor who makes a gen-
eral deposit of his money becomes a mere creditor of the banker.
The money becomes property of the banker. He has a right to
use it in his legitimate business. He may loan it out to his
customers upon such security and upon such terms as are usual
with bankers. No such state of facts exists here. The defend-
ants acquired no property in nor right to use the prosecutor's
oil. . . . They had no right to lay their hands upon tlie
property of the prosecutor, confided to them for safe keeping, in
order to relieve themselves." *°
80 Hutchison v. Com., 82 Pa. St. 472.
CHAPTER III.
OIL AND GAS LEASES.
§47. Peculiarity.
§48. Name applied to instrument does not determine its legal effect.
§49. Lex loci governs.
§50. License and incorporeal hereditaments.
§51. Interest of lessee is a chattel real.
§52. Contract giving interest in real estate.
§53. Estate does not vest if oil or gas not found.
§54. Vesting title subject to condition precedent. — Diligence.
§55. Tenancy from year to year or at will.
§56. Unilateral contract.
§57. Legal interest of lessee in various leases. — Digest.
§58. Sale of oil and gas, and not a lease.
§59. Presumption as to ownership of oil or gas in ground.
§60. Administrator's right to lease or contract. — Presumption.
§61. Lease and not a license.
§62. License.
§63. License. — Consideration. — Revocation.
§64. License, revocation.
§65. Merger.
§66. Consideration.
§67. Option to purchase after development.
§68. Option to extend lease.
§69. Acceptance of second lease by lessee in first lease.
§70. Extension of time of lease may amount to a new lease.
§71. Options. — Revocation.
§72. Options continued.
§73. Option to pay rent or drill well.
§74. Appurtenances, what will pass as such.
§75. Statute of Frauds.
§76. Description of leased premises.
§77. Right of lessor to use surface.
§78. Construction.
§70. Contruction of instrument by ])arties.
§80. LInfilled blanks. — Written and printed clauses.
§81. Execution of lease.
§82. Defective execution or acknowledgment.
§83. Parol change of written lease.
§84. Acceptance. — Estoppel.
59
60 on. AND GAS.
§85. Lessee need not sign lease. — Deed.
§86. Separate owners giving joint lease.
§87. Notice to one of several lessees.
§88. Second lease. — Notice.
§89. Agent of lessee may take lease after forfeiture.
§90. Exclusive right of licensee of lessee. — Solid mineral oil.
§91. Implied covenant.
§92. Covenant running with land.
§93. Personal covenants.
§94. Assignment of contract giving interest in land. — Incorporeal hered-
itament. — Lease. — Surrender.
§95. Lessee liable after assignment on express covenants.
§96. When work must be begun.
§97. Diligence in operating leased premises after development.
§98. Agreement as to what constitutes due diligence.
§99. Unprofitable lease.
§100. Lessor cannot impair value of lease by drilling wells on his own
land.
§101. Lessee draining premises by operations on adjoining territory.
§102. Drilling well near boundary line.
§103. Injunction. — Quieting title.
§104. Damages.
§105. Damages for failure to keep covenant.
§106. Damages for neglect to develop or operate leased premises.
§107. Damages for neglect to operate. — Res judicata.
§108. Damages for taking oil or gas.
§109. Boundaries. — Location of wells.
§110. Selection of site.
§111. Number of wells.
§112. Number of wells. — Protecting lines.
§113. Test wells. — Excuse for not drilling.
§114. Test well, when need not be drilled.
§115. Test well.— Depth.
§116. Lessor and lessee by mistake locating well on stranger's land.
§117. "Shooting" well.
§118. Oil lease, who entitled to gas.
§119. Oil lease gives no right to gas if oil be not found.
§120. Eviction. — Ejectment.
§121. Failure of title, reimbursement of operator.
§122. Lessee denying tenancy.
§123. Uncertainty on lease. — Unconscionable.
§124. Diameter of wells.
§125. Contract to drill wells " in the vicinity."
§47. Peculiarity.
Gas and oil leases are a part by themselves. There is scarcely
any comparison between them and the ordinary farm or house
LEASES. G 1
lease ; although tliere is some resemblance in them to coal or
solid mineral leases. Usually an oil or gas lease is for a term
of a certain number of years, upon a nominal consideration,
sometimes with the privilege of an extension of the term at the
option of the lessee, or as long as gas or oil is found in paying
quantities ; contains a description of the leased territory, and a
reserv^ation of a certain number of acres around the buildings,
when any are on the leased premises, where no wells shall be
drilled ; if the boundaries of the reservation are not fixed, pro-
vides that they shall be fixed by one of the parties, usually the
owner of the land ; provides for a part of the oil produced as a
royalty or consideration for the lease, except for operating pur-
poses., delivered in tanks or pipe lines to the ci"edit of the lessor ;
provides, in ease only gas should be discovered, for the payment
of a certain sum periodically, for each well, if the gas be found in
a quantity to justify transporting it off the premises to a market,
of which fact: the lessee is sometimes made the exclusive judge ;
the growing crops and the fences, not to be unnecessarily dist-
turbed; gives the lessee or grantee the right to enter on the
premises at any time to drill wells, and a right of way to and
from the wells, the right to lay pipe lines to carry off the gas
and oil, the right to remove all fixtures used in the drilling and
operation of the wells, at the termination of the lease or grant ;
the lessee agreeing to commence a well within a certain time,
and in case of a failure to do so to pay for any future delay a
certain sum periodically (frequently so much per acre of the
entire tract) as a rental until a well is commenced or the prem-
ises abandoned, the amount thus paid not infrequently made
a full consideration and payment for tlie yearly delay until a
well shall be commenced ; and provides that a failure to com-
mence a well or to make the payments within the specified time
shall render the lease void. We say these are the usual terms.
There are often many others : such as a thirty days' notice on the
part of the lessee or grantee of his determination to terminate or
surrender the lease ; or that a second or other wells shall be
drilled within a specified time after the first well is drilled, and
if not, the lease to be void or forfeited ; or that the lessor or
grantor is to receive so much gas free of charge, giving the lessee
C2 OIL AND GAS.
the exclusive right to develop the lands, and the like. The-
number of conditions are many, as will appear further on in.
this chapter, and which it is unnecessary here to further enu-
merate them.^
§48. Name applied to instrument does not determine its legal
effect.
In determining the scope and legal effect of an instrument
giving rights and privileges to mine or take mineral, oil or gas,
it is immaterial by what name it is called, whether a "" lease,"
" contract," " grant,"* or " deed of conveyance," the courts will
look to the language used in the instrument, aside from these
terms so used, and determine its legal effect. The most com-
monly used term is the word " lease," and yet many such an in-
strument has been considered as giving an estate of inheritance,
which in fact made it a deed of conveyance.^
§49. Lex loci governs.
The rights of the parties must be determined by the law of
the State where the leased premises lie, although it be executed
in another State where the lessor and lessee reside.^
§50. License and incorporeal hereditaments.
If one grant in writing a privilege to mine in his lands, he
creates an incorporeal hereditament ; if he grant by parol the
iSee Simpson v. Pittsburgh, etc., 144 Pa. St. 613; 23 Atl. Rep. 250;
Co., 28 Ind. App. 343; 62 N. E. Rep. Pluramer v. Hillside, etc., Co., 160
753. Pa. St. 483; 28 Atl. Rep. 853;
2 Hobart v. Murray, 54 Mo. App. Moore v. Miller, 8 Pa. St. 272 ; Gary
249; Suffern v. Butler, 21 N. J. Eq. Hardware Co. v. MeCarty, 10 Colo.
410. affirming 4 C. E. Gr. (N. J.), App. 200; 50 Pac. Rep. 744; Lambie
202; Genet v. Delaware, etc., Co., v. Sloss, etc.. Co., 118 Ala. 427; 24
136 N. Y. 593; 32 N. E. Rep. 1078. So. Rep. 108; Hodgson v. Perkins,
reversing 122 N. Y. 505; 25 N. E. 84 Va. 706; 5 S. E. Rep. 710; Shen-
Rep. 956; Sanderson v. Scranton, andoah Land, etc., Co. v. Hise, 92
105 Pa. St. 469; Delaware, etc., Co. W. Va. 238; 28 S. E. Rep. 303.
V. Sanderson, 109 Pa. St. .583; 3 Oenet v. Delaware, etc.. Co., 35
Hope's Appeal, 29 W. N. C. (Pa.) N. Y. Supp. 147; 13 N. Y. Misc. Rep-
365; Kingsley v. Hillside, etc., Co., 400.
LEASES. 63
■same privilege, he simply constitutes a license. A license is a
mere personal privilege, while an incorporeal hereditament is
an interest in lands. This distinction is not always observed,
and, when not, confusion arises. A license may, however, be
reduced to writing, or created in writing by the use of apt words.
When privileges are granted by a writing, the writing alone dr
termines the. character or legal nature of the privilege granted.
,§51. Interest of lessee is a chattel real.
\\'hatever rights an operator receives, unless he operates under
a parol license, he receives by virtue of the written instrument
under which he operates, and to that instrument we must look
to determine what legal interest he has in the premises. But
restricting ourselves to a lease, as such purely, the question
arises '' What interest has the lessee in the leased premises ?"
In the case of an agricultural lease, or the lease of a house or
building, for a term of years, the interest of the lessee is easily
defined by means of the decisions of courts running back many
hundreds of years. But in the case of an oil or gas lease, where
the length of the tenn is contingent on the discovery of gas or
oil in paying quantities, and on its continuance in such quanti-
ties, although limited to a specified numl>er of years, with a
right to take and carry away a part of the soil itself, a very
different question is piresented. The interest of a lessee under
such a lease has been termed a chattel real, and not a partnership
asset.^ " The contract referred to was a lease of the lands for a
specified term," said the Supreme Court of Pennsylvania, '' and
4 See Nego v. Barber, etc., Co., 17 402; Lee v. Bumgardner. 86 Va. 315;
Mo. App. 294; East Jersey Co. v. 10 S. E. Rep. .3; Gillett v. Treganza.
Wright, 32 N. J. Eq. 248. 6 Wis. 343 ; Shepherd v. McCalmont
Oil taken out under a license is Oil Co., 38 Hun 37 ; Tipping v. Rob-
the property of the licensee. Spring- bins, 71 Wis. 507; 37 N. W. Rep.
field Foundry, etc., Co. v. Cole, 130 427.
IMo. 1; 31 S. W. Rep. 922; East Merely designating the instrument
Jersey Co. v. Wright, supra; Grubb as a lease does not make it so.
V. Bayard, 2 Wall Jr. 81; Clement Jennings Bros. & Co. v. Beale, 158
V. Youngman. 40 Pa. St. .341; Al- Pa. St. 283; 27 Atl. Rep. 948.
gonquin Coal Co. v. Northern, etc, s Chamberlain v. Dow, 16 W. N. C.
-Co.. 162 Pa. St. 114; 28 Atl. Rep. (Pa.) 532.
64: Oil, AND GAS.
for a particular purpose, at a fixed rent or royalty reserved out
of the production. As to the legal force and effect of the writ-
ing there can, we think, be no doubt : it conveyed an interest in
the land ; in this respect it is distinguished from a license."
" But although the writing is a lease, it conveyed an interest in
the land — a chattel interest, however ; the lease was a chattel
real, but none the less a chattel." " Such an interest may be
sold on execution, the purchaser being regarded as an assignee.^
If the lessee mortgage his interest, the mortgage must be execu-
ted in accordance with the law relating to a chattel mortgage.^
§52. Contract giving interest in real estate.
A. contract concerning oil or gas lands may be so drawn as to
give an interest in the premises granted, that can only be con-
veyed or assigned in writing. This w^as held to be true of a
grant of " all the oil and gas in and under " a certain tract of
eighty acres of land, with the right to enter thereon at all times
for the purpose of drilling and operating for oil or gas, to erect
structures and lay pipes, and excepting and reserving a certain
part of the oil produced and saved from the premises. If gas
were found, certain annual rental for each well while the gas
was used off the premises was to be paid, and the grantor was to
have free gas for his dwelling houses and for domestic purposes.
There were other provisions with respect to forfeiture, if wells
were not sunk within a certain time. The conditions between
the parties were expressly extended " to their heirs, executors
and assigTis." The o\\mer of the land had the right to cultivate
the soil. The grant was unlimited in time. " The contract is
not the form of a lease of the land," said the court, " or any part
of it, for years or for life or in per]3etuity, with an accompany-
ing right, as an incident of the letting, of taking the oil and gas
"Brown v. Beecher. 120 Pa. St. 274; First Nat. Bank v. Dow, 41
500; 15 Atl. Rep. 608; McElwaine's Hun 13.
Appeal (Pa.), 11 Atl. Rep. 453. See ^ Aderhold v. Oil Well Supply Co.,
Oliio Oil Co. V. Kelley, 9 Ohio C. Ct. 158 Pa. St. 401 ; 28 Atl. Rep. 22.
Rep. 511; 6 Ohio Cir. Dec. 470; 40 8 Devine v. Taylor, 1 Ohio Dec.
L. Bull. 338; 3 Ohio Deo. 186; (N. P.) 153; 12 Ohio C. C. 723; 4
GreensburjT Fuel Co. v. Irwin, etc., Ohio C. Dec. 248. See Willetts v.
Co., 162 Pa. St. 78; 29 Atl. Rep. Brown, 42 Hun 140.
LEASES.
65
beneath the surface." In discussing the nature of this contract,
the court used the following language: '* While for reasons we
have sought to state, we do not regard the contract in suit as a
grant of land, or as a lease properly so-called, but do regard it
as a grant of a right in the nature of an incorporeal heredita-
ment, operative from the time of its execution and during the
accomplishment of its purpose as a transfer of an exclusive right
to search for, take and appropriate the minerals mentioned in
the instrument, under whatever technical common law term it
may most properly be classed, it must be held to be a conveyance
of an interest in land within the meaning of our statutes." In
discussing the nature of the grant, or contract, the court used
the following language :
" The grant is not limited to any period of time, though as in
the case of a grant of the coal in certain land, it would cease to
be operative whenever it should be foimd that no oil or gas was
beneath the soil, or none that could be taken with benefit ; where-
as a lease of land, properly so-called would continue in force
according to its provisions until the end of the term. The con-
tract is in effect a grant of the right to take all the oil and gas
that may be found and taken by making wells as prescribed
upon the particular tract of land, with accompanying incidental
rights to do, as indicated in the contract, upon the surface, those
things needed for the enjoyment of the principal right so to take
oil and gas. It confers rights not limited as to time, unless it
be as to the indefinite period within which oil or gas may be
taken advantageously under the conditions prescribed. The
right to take all the oil and gas in and under the land is in its
nature an exclusive right. It is inconsistent wntli a right in the
grantor or others under him to take any of the oil or gas from
beneath the designated land, at least through wells drilled upon
that land. The oil and gas in their free and natural state
within the land constitute a part of it, though they be fluent and
liable to depart to other land, there to be taken into possession
through wells made for such purpose. The right to take such
minerals from the land constitutes an interest in the land. The
instniment under consideration does not create a mere personal
privilege to take the minerals from the land. It is an ex-
■66 OIL AND GAS.
elusive and assignnhle interest in land. If with propriety
it can be called a license, it must be a license coupled with an
interest in land. By its terms the contract is a grant of the
minerals in and under the land. Jf by such general terms all
of the specified solid mineral, as coal, in and under the lard
were granted, it would be a grant of real estate ; but because of
the fluidity and fugitiveness of petroleum and natural gas the
absolute ownership of these mineral substances within the land
cannot be acquired without reducing them to actual control ; so
that a distinction must be and is made between these elusive
minerals in and under the ground and the solid minerals in
place in the earth. Therefore, a grant of all the oil and gas in
and under a tract of land is not a grant of any particular specific
substance as would be a grant of the coal in and under certain
land. The owner of land is not by virtue of his proprietorship
thereof the absolute o^^^ler of the oil and gas in and under it,
in its free and natural state, not yet reduced to actmil control of
any person, but he, togetlier with the other owaiers of land in the
gas field, has a qualified o\vnership, consisting of or amounting
to his exclusive right to do what may be done on, through and
under his land (as making of wells) necessary to reduce the
minerals to his possession, and by thus acquiring the exclusive
control to become the owner of the mineral substances as his
personal property, observing due regard in his operations to the
like enjoyment of such exclusive right by all other land owners
in like circumstances. This exclusive right is his private
pri)|)c.rty. lie cannot grant more than he owns ; therefore, by
granting all the oil and gas in and imder his land, he does not
grant more than a right to reduce to ownership the oil and gas
which may be obtained by operating on the land, whereby sub-
stances which at the time of the making of the grant may bo in
and under lands of other surface properties may come into right-
ful ownership of the grantee as liis personal property. Though,
liecause of the peculiar nature of oil and gas, a corporeal interest
in them in place cannot be created, and title to the specific" min-
eral substances enn not be acquired without the reduction of
them first to personal property, yet the exclusive and assiuiinbh'
right to do this with the accompanying rights necessars^ to such
LEASES. 67
aceoniplislimeiit, constitutes, not a privilege revocable before it
has been acted upon, but a subsisting, exclusive, assignable and
in*evocablc right which accrues upon the execution of the ^vritten
instrument of conveyance and before any action has been taken
thereunder. The right so created is not susceptible of livery
of seizin, and is in the nature of an incorporeal hereditament.
The contract before us cannot be regarded as a lease of land
for three years or less, or as a lease of land ineffectual because
of uncertainty or indefiniteness of duration of term ; and occu-
pancy thereunder cannot be regarded as a tenancy from year
to year ; but the interest granted is properly to he considered as
an interest in land Avithin the meaning of our statutes." ^
§53. Estate does not vest if oil or gas not found.
There is an implied condition in every lease given for oil or
gas mining purpose's that if oil or gas be not found in such quan-
tities as will justify its operation, within the time stipulated, or
within a reasonable time where no time is specified, no estate
shall pass by it and vest in the lessee. Contrasting an oil lease
with a coal lease, the Supreme Court of Pennsylvania said :
" A vested title cannot ordinarily be lost by abandonment in a
less time than that fixed by the statute of limitations, unless
there is satisfactory proof of an intention to abandon. An oil
lease stands on quite different ground. The title is inchoate
and for purposes of exploration only, until oil is found. If it
is not found, no estate vests in the lessee, and his title, whatever
it is, ends when the unsuccessful search is abandoned. If oil is
found, then the right to produce becomes a vested right, and the
9 Heller v. Dailey, 28 Ind. App. An instrument concerning coaf
555; 63 N. E. Rep. 490. See Gad- lands, sotting forth that the owner
bury V. Ohio, etc., Gas Co. (Ind.), does "grant, bargain and sell" the
67 N. E. Rep. 259. coal beneath the surface, and add-
Under a statute providing that ing words of inheritance, presump-
*' land " and " real estate " of a city tively, a contrary intent not being
" include rights and easements of affirmatively shown. shoAVS that the
an incorporeal nature," an oil lease owner intended to vest in the
OAvned by a city is real estate. Ker- grantee the entire ownership of the
lin Bros. Co. v. Toledo. 20 Ohio C. coal in the land described. Hosatk
Ct. Rep. 603; 8 Ohio N. P. 62. v. Crill (Pa.), 53 Atl. Rep. 641.
68 OIL AND GAS.
lessee will be protected in exercising it in accordance with the
terms and conditions of his contract." " He [the lessee] conld
abandon whenever he was satisfied, from the search made, that
the fnrther expenditure of time and money upon any given
farm, or upon the body of farms covered by his leases, would be
fruitless. Whenever he did so abandon a given farm, or the
whole body of leased farms to which his contract referred, his
rights therein were at an end." ^** In a nisi prius court, of that
State, the following language Avas used with reference to an oil
lease executed as early as 1864: " The contract is peculiar and
one of those instruments to which the development of the oil bus-
iness has given rise. It is not a grant of land, or a present
leasehold interest therein. It is not a grant of the mineral, etc.,
in place or under the land, but the right to search for oil, etc.,
and the right to enter and occupy for the purpose of such search
and no other. If the search is fruitless, it is at the cost of the
explorer. When the search is abandoned, the right of entry is
gone. But, if the search is successful, then the explorer be-
comes a tenant for the purpose of operating the land at the rent
agreed, and his right of possession exists, not for the purpose of
search, but for the purpose of operating the oil or minerals
Avhich his search has discovered. Whether the tenancy exists
depends, therefore, on whether the oil which is its object is
found to exist upon the land." ^^ If the lessee has the right to
1" Venture Oil Co. v. Fretts, 152 All. Rep. 1035; Kenton Gas, etc.,
Co. V. Dorney, 17 Ohio Cir. Ct. Rep.
101 ; 9 Ohio Cir. Dec. 604; Eaton v.
Allegany Gas Co., 122 N. Y. 416;
25 N. E. Rep. 981, reversing 42 Hun
61; Hug-gins v. Daley, 99 Fed. Rep.
606; 40 C. C. A. 12; 48 L. R. A.
Pa. St. 451; 25 Atl. Rep. 732; Steel
smith V. Gartlan, 45 W. Va. 27
29 S. E. Rep. 978; 44 L. R. A. 107
Huggins V. Daley, 99 Fed. Rep. 606
40 C. C. A. 12; 48 L. R. A. 320
Gadbury \. Ohio, etc.. Gas Co
(Ind.), 67 N. E. Rep. 259. 320; Petroleum Co. v. Coal, etc., Co.,
iiMcNish V. Stone, reported in 89 Tenn. 381; 18 S. W. Rep. 65;
note to 1.52 Pa. St. 457; 23 Pittsb. Muhlenberg v. Henning, 116 Pa. St.
L. J. (N. S.) 232. Ruling followed 138; 9 Atl. Rep. 144; Cleminger v.
in Crawford v. Ritchie, 43 W. Va. Baden Gas Co., 159 Pa. St. 16; 33
252; 27 S. E. Rep. 220; Elk Fork W. N. C. 480; 28 Atl. Rep. 293;
Oil and Gas Co. v. Jennings, 84 Fed. Miller v. Balfour, 138 Pa. St. 183;
Rep. 839; May v. Hazlewood Oil Co., 22 Atl. Rep. 86; Foster v. Elk Fork,
1.52 Pa. St. 518; 25 Atl. Rep. .564; etc., Co.. 90 Fed. Rep. 178; 61 U. S.
Stage V. Boyer, 183 Pa. St. 560; 38 App. 576; 32 C. C. A. 560.
LEASES. 00
abandon the lease after operations begun, and remove all his
property from the premises, and he abandon such operations,
the lease is at an end/^
§54. Vesting title subject to condition precedent. — Diligence.
*■' While most of the eases ^^ have gone upon the ground of
abandonment, the governing principle in all oil leases of the
cliaracter under consideration is that the discovery and produc-
tion of oil is a condition precedent to the continuance or vesting
of any estate in the demised premises ; that such leases vest no
present title in the lessee, and if, at any time, tlie lessee has the
option to suspend operations, the lease is no longer binding on
the lessor because of want of mutuality ; and, where the only
consideration is prospective royalty to come from exploration
and development, failure to explore and develop renders the
agreement a mere nudum pactum, and works a forfeiture of the
lease, for it is of the very essence of the contract that work
should be done. And, the smaller the tract of land, the more
imperative is the need for prompt and efficient drilling; for oil
operations cumber the land, rendering it unavailable for agri-
cultural purposes. The land owner is entitled to his royalty as
jiromptly as it can be had. The danger of damage from his
small holding is increased by delay, and the resulting damage,
not being susceptible of pecuniary measurement, is therefore not
compensable. Xo such lease should be so construed as to enable
the lessee who has paid no consideration to hold it merely for
speculative purposes, without doing what he stipulated to do,
and what was clearly in the contemplation of the lessor when
he entered into the agreement." ^*
12 Paine v. Grifliths, 86 Fed. Rep. finding of either one. In re Bru-
452; .58 U. S. App. 38; .30 C. C. A. not's Estate, 29 Pittsb. L. J. (N. S.)
182. 105. See Gadbury v. Ohio, etc.. Gas
An agreement which "granted" Co. (Ind.), 67 N. E. Rep. 250.
an exclusive right to drill for oil i3 Alluding to the cases previously
and gas in a certain tract, and take cited in the opinion,
them out for twenty years, was held i4 Huggins v. Daley, 09 Fed. Rep.
to amount to a sale, conditioned in 606; 40 C. C. A. 12; 48 L. R. A.
the lirst instance on the existence of 320. Citing Twin-Lick Oil Co. v
oil or gas, but made absolute by the INIarbury, 91 U. S. 593 ; Guffy v. Hu-
70 OIL AND GAS.
§55. Tenancy from year to year or at will.
A gas lease may be so drawn as to create a tenancy from year
to year. Such an instance arose in Indiana. A statute of that
State provided " that tenancy at will cannot arise or be created
without an express contract, and all general tenancies, in which
the premises are occupied by consent, either express or implied,
of the landlord, shall be deemed tenancies from year to year."^'^
An oil and gas lease provided that it should begin the day it w^as
executed, and terminate when gas ceased to be used generally
for manufacturing purposes in a certain to^vn, or on failure to
pay or tender the rent agreed upon within sixty days after duo.
As a part of the consideration the lessee agreed to pay one hun-
dred dollars per annum for each gas well drilled and producing
gas in paying quantities — payments to begin and to become due
as to each well on its completion, and to continue thereafter an-
nually during the term of the lease. If tlie lessee failed to drill
a gas well, he was to pay fifty cents an acre; and if wells were
not drilled within five 3^ears, tJien the rent was to be raised to
one dollar an acre. If any otlier gas well was put douai on the
leased premises other tlian those stipulated for, then the lessee
was to be released from the payment of the rent. As there was
no definite time fixed for the running of the lease, it was held to
be a tenancy from year to year, within the provision of the
statute quoted; and hence was terminable at the end of any
year.^" A sale of all the minerals under a tract of land, with
the usual mining rights and privileges, giving a right to enter
at any time with workmen and machinery, and mine and carry
away coal ; giving the right to use so much of the surface as
might be necessary for the operations, to erect the necessary
kill, 34 W. Va. 49; 11 S. E. Rep. Co. (W. Va.), 44 S. E. Hep. 433;
754; 8 L. R. A. 759^ and Rorer Iron Monfoit v. Lanyon Zinc Co. (Kan.)
Co. V. Trout, 83 Va. 397; 2 S. E. 72 Pac. Rep. 784.
Rep. 713; Conrad v. Moorehead. 89 is Burns' Rev. 1901, Sec. 7089.
N. C. 31 ; Maxwell v. Todd, 112 N. C. le Diamond Plate Glass Co. v.
677; 16 S. E. 926; Hawkins v. Pep- Echelbarger. 24 Ind. App. 124; .55
per. 117 N. C. 407; 23 S. E. 489; N. E. Rep. 233; Diamond Plate
Cadbury v. Ohio, etc.. Gas Co. Glass Co. v. Curless. 22 ind. App.
(Ind.). 67 N. E. Hep. 259; Low- 346; 52 N. E. Hep. 782.
ther Oil Co. v. Miller-Sibley Oil
LEASES. 71
buildings, to constnict roads, and to use water ; the <^nsideration
U) he a payment quarterly of 15 cents per ton for all iron ore so
taken ; with the privilege to remove tlie machinery and fixtures
at any time, was held to create a tenancy at will." \\T:iere a
lessee had the right to surrender the lease, after which all his
liabilities under it should cease, it was held that this provision,
taken in connection witli the gi'anting clause, which stated no
time to run, and the hahendum clause, giving the lessee two
years in which to drill for oil, did not create an estate at will.^^
A grant of oil privilege, without limitation as to time, in consid-
eration of one dollar, contained this clause : " In case no well
is completed within two years from this date, then this grant
shall immediately become null and void as to both parties ; pro-
vided, tliat the second party may prevent such forfeiture from
year to year by paying to the first party annually in advance
eighteen dollars, at her residence until such well is completed."
It was held that by this clause the grant was converted into a
lease from year to year, at the option of tlie lessee, until a well
was completed ; and that it would then continue so long as oil
was produced in paying quantities. ^'^
§56. Unilateral contract.
In Texas many of the so-called gas leases are regarded as
unilaterial contracts. Thus, when tlie consideration for a so-
called lease was only one dollar and a promise to develop tlie
premises and deliver to the lessee a stated per cent, of the oil
jiraduced ; and it was stipulated that the lessee might terminate
the lease at any time, and that the sum paid should be the
lessor's full compensation, it was held that the contract was
unilateral and void ; that a sale of the premises before opera-
tions began terminated the lease, and that it was uot a cloud on
the title of such premises."*^
17 Cowan V. Radford Iron Co., 83 ' Va.) 43 S. E. Rep. 101; Lowther
Va. 547; 3 S. E. Rep. 120. Oil Co. v. Miller-Sibley Oil Co. (W.
isRrown v. Fowler. G5 Ohio St. Va.). 44 S. E. Rep. 433.
507; 03 N. E. Rep. 76; Patton v. 2n Roberts v. McFaddin (Tex. Civ.
Axley 50 N. C 440. Ann). 74 S. W. Rep. 105; Natural
i» Lowther Oil Co. V. GuHVy, (W. Oil. etc., Co. v. Teel (Tex. Civ.
72 OIL AND GAS.
§57. Legal interest of lessee in various leases. — Digest.
Under various heads we have discussed the interest a licensee,
lessee or grantee under a written instrument has in the premises
described in the instrument giving oil or gas raining privileges.
It is safe to say that all the cases cannot be reconcileil with
respect to the interest the ojx^rator has in the premises, and
nothing more can be done than to enumerate each particular
case, or a number of them ; for it will be impractical to ex-
amine and state the result of all of them. Cases, however, with
respect to licenses will be omitted here, for they have been
treated elsewhere. To begin the enumeration. An agreement
to lease land for a term of years, giving the exclusive right to
bore for and collect all the oil passes a corporeal interest in the
land.'^ A guardian, while he may usually give a lease of his
ward's pro}3€rty, cannot give a lease for the purpose of develop-
ing the oil in it ; for the reason that it is a part of the realty,
and such a lease is a part of the estate of the ward."" A lease
only for the purpose of drilling for oil, coal, rock or petroleum
given to the lessee, his heirs and assigns, for twenty-five years, in
consideration of one-half the oil found, vests in the lessee a cor-
poreal interest in the business, which is the subject of eject-
ment."'' A grant to C, his heirs and assigns, of the free and un-
interrupted right to go upon a tract of land to prospect, bore
and take ore, oil and gas out of the earth, the grantor to receive
one-third of all taken out, and reserving the right of tillage, vests
in C an incorporeal hereditament in fee."* A grant of all the
iron ores upon and under a tract of land, with the exclusive and
full right to mine them, is a conveyance of an incorporeal
hereditament passing in fee simple the entire o\^aiership of tlie
App.), 67 S. W. Rep. 45; 68 S. W. C. 532; South Penn. Oil Co. v. Mc-
Eep. 979; Emery v. Ledeque, 6 Tex. Intire, 44 W. Va. 296; 28 S. E. Rep.
Civ. App. 719; 72 S. W. Rep. 602. 922.
21 Cnicago, etc., Co. v. United 2t Barker v. Dale, 3 Pitts. L. J.
States Co... 57 Pa. St. 83; Duke v. 190.
Hague, 107 Pa. St. 06. 21 Funk v. Haldeman, 53 Pa. St.
22 Stoughton's Appeal, 88 Pa. St. 229; Union Petroleum Co. v. Blivcn,
198; Chamberlin v. Dow, 16 W. N. etc., Co., 72 Pa. St. 173.
LEASES. i 6
ore in tlie land.""'^ An exclusive possession of snch of tlie land as
is necessary, givftii for the purpose of searching for, producing,
storing and transporting oil, is not a mere license."" A grant
of the " exclusive right and privilege of digging and boring for
oil and other minerals," for a term of years is a lease for the
production of oil and not ii sale of the oil."' A lease for a term
of years, with right to bore for oil and take it, rendering a part
to the owner of the land, confers an estate in the nature of an
incorporeal hereditament."* An instrument giving B the right
to enter on certain lands and prospect for coal, and if found in
sufficient quantities to satisfy him, giving him the privilege to
mine and remove it, paying a certain amount per ton, and also
giving him the right, at his pleasure, to abandon the agreement,
creates only an estate at will."** An instrument granting and
conveying the right to enter on certain lands and take the min-
erals thereon forever, unless none should be found within a cer-
tain named period, is a grant in fee, though called a " lease." ^^
A right given in the following language is a lease: " The said
party, of the first part, for and in consideration of the rents
and covenants hereinafter mentioned, to be paid and performed
on the part of the said party of the second part, the right to mine
and take away coal from the Salem vein," etc. " A right to
use a mine necessarily implies a right to possess it; and a grant
of the use and possession, in consideration of something t/> be
rendered, is exactly what constitutes a lease of the thing to be
possessed." ^^ A grant of land for an indefinite period, with
25 Grove v. Hodges, 55 Pa. St. the usual oil lease was called a
504; Caldwell v. Fulton, 31 Pa. St. license coupled with a conditional
475. grant.
26 Kitchen v. Smith, 101 Pa. St. A judgment rendered against a
452. licensee operating an oil well is not
27Duffield V. Hue, 129 Pa. St. 94; a lien on such well. Meridian A'a-
18 Atl. Rep. 566; Barnhart v. Lock- tional Bank v. McConica, 8 Ohio C.
wood, 152 Pa. St. 82; 25 Atl. Rep. Ct. Rep. 442; 4 Ohio Cir. Dec. 106.
879. See Wettengel v. Gormley, 160 29 Knight v. Indiana, etc., Co., 47
Pa. St. 559; 28 Atl. Rep. 934. Ind. 105.
2s Ohio Oil Co. V. Toledo, etc., Co., so Suffern v. Butler, 21 N. J. Eq.
4 Ohio C. Ct. Rep. 210; 2 Ohio Cir. 410; affirming 4 C. E. Green Ch.
Dee. 505. (N. J.) 202.
In Herrington v. Wood, 6 Ohio C. si Offerman v. Starr, 2 Pa. St.
Ct. Rep. 326, 3 Ohio Cir. Dec. 475, 394.
^4: OIL AND GAS.
leave to take, under s}>e.cified conditioTis, all the coal contained
in the land, with a provision for a forfeiture on no«-oorapliance
Ly the grantee, is a lease.^" A lease of land in Kansas hy a
married man, who is the owner, occupying the same with his
family as a homestead, giving txD the lessee the right to prospect
for coal, gas, oil and other minerals at his pleasure, to erect nec-
essary buildings, and to excavate mines and pipe oil and gas, is
such an alienation of the homestead as requires the wife's con-
sent, under the constitution of that State.^^ A contract to raise
not less than so much ore a year from mines on certain land,
for which the contractor is to receive so much per ton, to have
tools furnished, and the use of the land and buildings, is a
lease.^* An agreement letting lands to l>e examined for min-
erals and taking tliem out at a royalty payable quarterly, the
right to continue so long as the grantee deems it advisable to
operate, and to be forfeited on cessure of one year to operate, is
a lease from year to year.^^ A parol agreement that a person
may enter on the land of another, dig ore and erect buildings,
for a consideration, has been held to be a lease.^*' An instru-
ment giving exclusive possession of land for the purpose .')f
searching for, producing, storing and transporting oil, is a lease,
establishes the relation of landlord and tenant, and en-
ables the tenant or lessee to recover from the landlord or lessor
taxes he has paid under a statute allowing a tenant to recover
the amount of taxes he has paid on the leased premises.^^ A
lease of land " of the exclusive right for the sole and only pur-
pose of mining and excavating for petroleum, rock and carbon
oil," " to hold the said premises exclusively for the said purposes
only," for a term of years, the lessor reserving the privilege to
till the land and remove the timber on it and the use of all other
land not necessary for producing oil, and also reserving certain
•■'sGartside v. Outley, 58 111. 210. as Patton v. Axley. 5 Jones L. (N.
33 Franklin Co. v. Coal Co., 43 C.) 440.
Kan. .518; 23 Pac. Rep. 630. See 36 Sheets v. Allen, 8l» Pa. St. 47;
also Monfort v. Lanyon Zinc Co., Moore v. Miller, 8 Pa. St. 272, 283.
(Kan.), 72 Pac. Rep. 784. See Ganter v. Atkinson, 35 Wis. 48.
•■!•» Shaw V. Wallace, 25 N. J. L. 37 Kitclien v. Smith, 101 Pa. St.
4r,.S. 452.
LEASES. I O
royalties, is a lease in fact and not a license.'"'^ An instrmnent
containing the words " liatli granted and leased, and by these
presents do grant, lease, and to farm let," and convey " the ex-
clnsive right to enter upon all the lands " of the so-called lessor,
" and dig and mine upon the same for phosphate rock and other
minerals to any extent he may require, and carry away and sell
the same for his own use," is a lease operating as a conveyance of
the minerals in place, and not a mere license to dig.^® An instru-
ment containing the words " does demise and lease " for mining
purposes only, the grantee having the right to erect all neces-
sarv' buildings and machinery, and being required to provide
and keep closed gates through which to enter and pass off the
land, giving him possession for ten years, at a fixed rent, is a
lease and not a license.*" A contract conveying certain land for
a term of years, and so long as gas and oil be found in paying
quantities, is a lease coupled with a conditional grant, dependent
on the production of gas or oil in paying quantities.*^ A con-
tract allowing a person to go to a particular part of the owner's
land, giving him exclusive right to the minerals thereon so long
as he complies with the terms and conditions of his contract, on
payment of a royalty on all minerals mined, is a lease, altbough
it has no determinate period.*' A grant of a right to work a
stone quarry creates the relation of landlord and tenant.*^ An
agreement " for the purpose of exploring for, mining, taking
out, and removing therefrom the merchantable shipping iron
ore which is or which hereafter may be found in, or under " cer-
38 Duke V. Hague, 107 Pa. St. 57; 42 Bucnanan v. Cole, 57 Mo. App.
Brown v. Beecher, 120 Pa. St. 590; 11; Springfield, etc.. Co. v. Cole, 130
15 Atl. Rep. 608; Wettengel v. Mo. 1; Young v. Ellis, 91 Va. 297;
Gormley, 160 Pa. St. 559; 28 Atl. 21 S. E. Rep. 480.
Rep. 934; Gale v. Petroleum Co., 6 43 Q'Donnell v. Luskin, 12 Mont.
W. Va. 200. Co. L. Rep. (Pa.) 109.
3!) Malcomson v. Wappoo Mills, 85 As to the right of the lessee to
Fed. Rep. 907. maintain ejectment, see Kirk v. Mat-
40 Kirk V. Mattier, 140 Mo. 23; 41 tier, 140 Mo. 23; 41 S. W. Rep. 252.
S. W. Rep. 252; Consolidated Coal In New York oil leases and wells
Co. V. Peers, 150 111. 344; 37 N. E. held by virtue of them are made per-
Rep. 937, affirming 39 111. App. 453. sonal property by statute. Wagner
41 Herrington v. Wood, 6 Ohio Cir. v. Mallory, 169 N. Y. 501 ; 62 N. E.
Ct. Rep. 326; 3 Ohio Cir. C. Dec. Rep. 584, affirming 58 N. Y. Supp.
475. 526.
7G
OIL AND GAS.
tain land, and which reserves the use and possession of the land,
except as such use and possession may interfere with the mining
operations, is a lease for mining ore, and ceases when it is
demonstrated there is no iron ore on the premises.**
§58. Sale of oil and gas, and not a lease.
A'n instrument may he so drawn as to convey an interest in
the solid minerals beneath its surface, with the right to mine
them. Such an instrument is not to be strictly construed as
conveying an interest in the land. Thus where a sot-called lease
of lands provided that the lessee (so called) should have all the
coal beneath the surface for a long term of years, the lessee to
take out a minimum number of tons each year until all the avail-
able coal was removed, and pay so much a ton, the minimum
amount to be paid for whether mined or not, it was held that
this was an absolute sale of the coal, conditioned, of course,
upon its being removed, and not a lease of the premises for min-
ing purposes.*^ Similar decisions have been made with refer-
ence to oil and gas, the royalty representing the purchase
monev.*®
44 Gibben v. Atkinson, 64 Mich.
651; 31 N. W. Rep. 570.
45 In re Lazarus' Est., 145 Pa. St.
1 ; 23 Atl. Rep. 372 ; Hope's Appeal,
3 Atl. Rep. 23 ; In re Hancock's Est.,
7 Kulp (Pa.), 36; Hobart v. Mur-
ray, 54 Mo. App. 249; Lehigh Coal
Co. V. Wright, 7 Kulp (Pa.), 434;
15 Pa. Co. Ct. Rep. 433. (Contra
Austin V. Huntsville Coal, etc., Co.,
72 Mo. 535.) Raynolds v. Hanna,
55 Fed. Rep. 783; Adams v. Ore
Knob, etc., Co., 7 Fed. Rep. 634;
Williams v. Gibson, 84 Ala. 228; 4
So. Rep. 350; Manning v. Frazier,
96 Til. 279; Consolidated Coal Co. v.
Peers. 150 111. 344; 37. N. E. Rep.
937 ; Chester Emery Co. v. Lucas,
112 Mass. 424; Delaware, etc., Co.
V. Sanderson, 109 Pa. St. 583; Lilli-
bridge v. Lackawanna Coal Co., 143
Pa. St. 293; 22 Atl. Rep. 1035;
Woodside v. Ciceroni, 93 Fed. Rep.
1; 35 C. C. A. 177; Hosack v. Crill
(Pa.), 53 Atl. Rep. 640. See Roweil
V. Bodfish (Me.), 10 Atl. Rep. 448;
Fairchild v. Dunbar, 128 Pa. St.
485; 18 Atl. Rep. 443.
4G In re Dunat's Est., 29 Pittsb.
L. J. 105; Wilson v. Youst, 43 W.
Va. 826; 28 S. E. Rep. 781; 39 L.
R. A. 292; Detlor v. Holland, 57
Ohio St. 492; 49 N. E. Rep. 690;
Kerlin, etc., Co. v. Toledo. 20 Oliio
C. C. Rep. 603; 8 Ohio N. P. 62;
Lawson v. Kirchener, 50 W. Va.
344; 40 S. E. Rep. 344; Hosack v.
Crill (Pa.), 53 Atl. Rep. 641.
l.IiASES. 77
§59. Presumption as to ownership of oil or gas in ground.
The presumption is that the owner of the hind owns tlie gas
and oil beneath the surface ; but this is a presumption that may
be rebutted, by showing that either the present owner or a for-
mer one had conveyed such oil and gas to another.^^
§60. Administrator's right to lease or contract. — Presumption.
The right of an administrator of the lessee to lease or con-
tract for searcliing for oil or gas and the operation of the
premises, will depend upon whether the estate granted is an
estate of inheritance or merely personal property. In the case
of solid minerals the minerals may be conveyed separate and
apart from the soil in which they rest ; and when so conveyed
they constitute a separate and distinct estate, vested in the
grantee, while the grantor retains the fee of the land, except
that of the minerals. The presumption is that the minerals
belong to the owner of the land, but tliat " may be rebutted by
evidence, showing a severance of the mines, and a distinct estate
and interest in them by grant or reservation." *^ Minerals so
conveyed constitute an inheritance separate and distinct from
the surface ; *° and pass to the heirs and not to the administra-
*~ Adams v. Briggs Iron Co., 7 Edwards v. McClurg, 39 Ohio St.
Cush. 361 ; Grove v. Hodges, 55 Pa. 41 ; Newark Coal Co. v. Upson, 40
St. 504 (eases concerning coal and Ohio St. 17; Logan v. Washington
iron ore). Co., 29 Pa. St. 373; Caldwell v.
4s Adams v. Briggs Iron Co., 7 Fulton. 31 Pa. St. 475; Harlan v.
Cush. 361; Kincaid V. McGowan, 88 Lehigh, etc., Co., 35 Pa. St. 287;
Ky. 91; 4 S. W. Rep. 802; Chester Caldwell v. Copeland, 37 Pa. St.
Emery Co. V. Lucas, 112 Mass. 424; 427; 78 Am. Dec. 436; Brown v.
Hobart v. Murray, 54 Mo. App. 249. Corey, 43 Pa. St. 495 ; Pennsylva-
49 Warden v. Watson, 93 Mo. 107 ; nia Salt Co. v. Neel, 54 Pa. St. 9 ;
5 S. W. Rep. 605; Hartwell v. Cam- Briggs v. Davis, 81% Pa. St. 470;
man. 2 Stock Eq. (N. J.) 128; Suf- Sanderson v. Scranton, 105 Pa. St.
fern v. Butler, 4 C. E. Gr. Ch. (N. 469; Hope's Appeal, 29 W. N. C.
.J.) 202; affirmed 21 N. J. Eq. 410; (Pa.) 365; Montooth v. Gamble, 123
Canfield v. Ford, 28 Barb. 336; Mar- Pa. St. 240; 16 Atl. Rep. 594; Fair-
vin V. Brewster, etc., Co., 55 N. Y. child v. Dunbar Furnace Co., 128
538; Lacustrine, etc., Co. v. Lake Pa. St. 485; 18 Atl. Rep. 443; Lilli-
Guano, etc., Co., 82 N. Y. 476; First bridge v. Lackawanna, etc., Co.. 143
National Bank v. Dow, 41 Hun 13; Pa. St. 293; 22 Atl. Rep. 1035;
78 OIL AND GAS.
tor.^** Since oil and gas is also a mineral and a part of the soil
which holds it, belonging to the owner of such soil, and the sub-
ject of a distinct conveyance which gives the grantee (by what-
ever name he may be called) an interest, it necessarily follows
tliat a grant of the oil and gas beneath the surface of a tract of
land will pass to the heir of the grantee and not to his personal
representatives; but if the instrument gives the grantee a mere
lease and does not give him an interest in the land, it does pass
to his administrator.^^
§61. Lease and not a license.
It is often difficult to determine whether an instrument is a
lease or a license ; and in fact courts differ so much that their
decisions on the question cannot be reconciled. The same in-
strument will be considered a lease by some courts and a license
by others. We give several examples that have been construed
by the courts. An instrument which grants, demises and
lets " all petroleum and gas in or under that certain tract
of land . . . and also all the said tract of land for the pur-
pose and for the exclusive right to drill and operate upon said
premises for said petroleum and gas," for a limited time, is a
lease and not a mere license.^' An instrument for a year con-
taining the following clause : " The party of the second part
liereby agrees to work said mine in a workmanlike manner, and
to pay to the party of the first part royalty from all ores taken
JCingsley v. Hillside, etc., Co., 144 oil wells and fixtures, and rights
Pa. St. 613; 23 Atl. Rep. 250; La- held by virtue of any lease, should
zarus' Estate, 145 Pa. St. 1; 23 Atl. be deemed personal property for all
Rep. 372; Plummer v. Hillside, etc., purposes except taxation, the right
Co., 160 Pa. St. 483; 28 Atl. Rep. to oil is personalty, and does not
• 853; Powell v. Lantzy, 173 Pa. St. pass under a deed executed by an
:'543; 34 Atl. Rep. 450; Massot v. executor, the devisee of the lessee
"Moses, 3 S. C. 168; Lee v. Bauni- having the right to convey all the
jrardner, 86 Va. 315; 10 S. E. lands owned by the latter, or in
Hep. 3. which he has an interest. Wagner
50Barksdale v. Parker, 87 Va. v. Mallory, 169 N. Y. 501; 62 N. E.
141; 12 S. E. Rep. 342; Keeler v. Rep. 584; affirming 58 N. Y. Supp.
Trueman, 15 Colo. 143; 25 Pac. Rep. 526.
311; Carrhart v. Montana, etc., Co., 52 Woodland Oil Co. v. Crawford,
1 Mont. 245. 55 Ohio St. 161; 36 Ohio L. J. 231;
51 Whore a statute provide^! that -14 X. E. Rep. 1003; :M L. R. A. 62.
T.EASES. 79^
out . . . from the mine by the party of tlie second part " —
constitutes it a lease, and not a mere license.^^ An agreement
giving an exclusive right to mine coal on certain land for a term
of years is a lease and not a mere license.^* An agreement of an
owner of mining lands, allowing a person to enter on them at
a particular place and have exclusive possession to dig for min-
erals thereon, so long as he c-omplies with the conditions of the
contract, is a lease and not a license.^'*
v^62. License.
As said previously, a license may be created by parol, and
whatever right is attempted to be given by parol is a mere license
and nothing more. As oil or gas is a mineral, a parol grant to
bore for either of them is merely a license. But when the oil has
been severed from the ground, and put into a pipe line or a tiink,
it becomes personal property of the licensee ; and so the same is
true of gas.^'' This is the case with respect to hard minerals.''^
One operating under a parol license is not a tenant of the
licensor; nor is he a trespasser. ^^ A mere license to mine is
not assigiuible — it is a mere personal privilege.^" One tenant
53 Paul V. Cragnas, 25 Nev. 293; Bridgevvater Gas Co., (W. Va.) ; 4'2
59 Par. Rep. 857 ; 60 Pac. Rep. 983 ; S. E. Rep. 6.55.
47 L. R. A. 540. 57 Williams v. Morrison, 32 Fed.
54 Consolidated Coal Co. v. Peers, Rep. 177; Wheeler v. West, 71 Cal.
150 111. 344; 37 N. E. Rep. 937; 126; 11 Pac. Rep. 871; Omaha, etc..
Harlan v. Coal Co., 35 Pa. St. 287; Co. v. Tabor, 13 Colo. 41; 21 Pac.
Marquis of Bute v. Thompson. 13 Rep. 925.
M. and W. 487; 14 L. .1. Exch. 95; In Utah a parol lease of a mini'
Massott V. Moses, 3 S. C. 168. is valid, if the lessee has entered
55 Buchanan v. Cole. 5/ Mo. App
11. See also Young v. Ellis, 91 Va
297; 21 S. E. Rep. 480; Harlan v
Lehigh Coal Co., 35 Pa. St. 287
Carr v. Benson, L. R. 3 Ch. App
.524; 78 L. T. 696; 16 W. R. 744;
and expended labor and money in
preparations for mining. Ruffntti v.
Societe, etc.. 10 Utah 386; 37 Pac
Rep. 591.
58\\niceler v. West, 71 Cal. 126 r
11 Pac. Rep. 871; Kamphouse v.
Hodgson V. Parkins, 84 Va. 706; 5 Gaffner, 73 111. 453; Desloge v.
S. E. Rep. 710. Pearce, 38 Mo. 588.
56 Heller v. Dailey, 28 Ind. App. 59 Manning v. Frazier. 96 111. 279:
555; 63 N. E. Rep. 490; Wagner v. East Jersey Co. v. Wright 32 N. T.
IVIallory, 169 N. Y. 501; 62 N. E. Eq. 248; Gaboon v. Bayaud. 123 N.
Rep. 584; Parish Fork Oil Co. v. Y. 298, 25 N. E. Rep. 376; Dnrk v.
Johnston. 55 Pa. St. 164; Hodgson
80 OIL AND GAS.
ill common cannot bind his co-tenant by giving a license.^" A
snbseqnent lessee or licensee with knowledge of the first license
ta-kes it subject tliereto.**^ A husband may give a license to
mine on tlie homestead premises, without the consent of his
wife, if the mining does not impair its enjoyment for the uses
of a homestead ; and even tliough her consent was necessary, yet
it will be inferred, if she had full knowledge of the work done,
or expenses incurred, and made no objection.*'" The owner of
land leased it ten years for mining purposes ; and subsequently
entered into an agreement, before the term had expired, witli
the lessee by which it was agreed that if the latter would sink
a well, plank it, and put in a pump and engine, he should bo
entitled to dig all the ore on the lessor's land, paying twenty-
five cents per ton for it. It was held that this was not a con-
veyance of the ore, but a mere license to take it, the compensa-
tion for the privilege of taking it being rated at twenty-five cents
a ton."^ An owner of land bequeathed it to his son, using the
following language : '' To my son, John, I give and bequeath
the farm or plantation he now occupies; to be enjoyed by him,
his heirs and assigns forever, with free privilege of taking what
coal he wants for his own use or plantation off the home planta-
tion." At the time the will was made, an open mine existed on
the home plantation, but none on the farm occupied by the son.
It was held that the privilege of taking coal from the home plan-
tation was personal to the son, and did not pass to his successors
in title to the premises devised.*** An agreement giving '' the
exclusive use and privilege of digging, hauling off, and working
any ore now found, or which may hereafter be found, any-
where " on a certain tract of land, confers a mere license, and
V. Perkins, 84 Va. 706; 5 S. E. 710. St. 44G. The court distinguishes
A license coupled with an interest is this case from the case of Caldwell
assignable. Funk v. Haldeman, 53 v. Fulton, 7 Casey 475, and says it
Pa. St. 229. closely follows Johnston Iron Co.
60 Tipping V. Pobbins, 64 Wis. v. Cambria Iron Co., 8 Casey 241,
546; 25 N. W. Rep. 713; Tipping and Clement v. Younger, 4 \Vrig!it
V. Robbins, 71 Wis. 507; 37 N. W. (Pa.) 341.
Rep. 427. •'^ Youghiogheny R. Coal Co. v.
61 Harkness v. Burton, 39 la. 101. Pierce, 153 Pa. St. 74; 25 Atl. Rep.
62 Harkness v. Burton, supra. 1026.
63 Neumover v. Andreas, 57 Pa.
LEASES. 81
creates no easement or estate in the land/'^ In Pennsylvania a
lessee of oil territory who has exclusive privilege of the land
for the purpose of searching for oil, producing, storing and
transporting it, is more than a mere licensee — he is a tenant."^"
A conveyance of '' the free and uninterrupted use, privilege,
and liberty to go on to any part " of a certain described tract of
land " for the purpose of prospecting, digging, excavating, and
boring and erecting machinery " '' necessary for prospecting,
experimenting, or searching to find oil," with a right to the ex-
clusive use of one acre about each well, and a right of way for
" himself, lands, and teams, tenants and undertenants, occu-
piers or possessors of said springs, mines, ores, or coal beds, in
common with " the grantor, the consideration being two hun-
dred dollars, and if oil or minerals Avere found, one-third of the
product, and if none be found, the premises to revert to the
grantor — creates a license coupled with an interest to work the
land for minerals.*'" Where an owner of an island and a farm
granted the right to search for oil on the island, and agreed if the
grantee found oil there, to sell him the island for a named sum ;
and he also gave him the exclusive right to bore wells on the
farm, at a certain rent for each well, and that he might remove
the machinery if unsuccessful, this was held to be personal
license, and not assignable."^ A quit claim deed has been held to
be a mere license to mine.*"^ A contract of sale and purchase,
absolute in form, but requiring payment to be made out of min-
eral produced from the land, has been held to be a mere option,
coupled witli a license to work.^"
esBarksdale v. Hairston, 81 Va. 164; 9 Morr. Min. Rep. 283; Rynd
764; Hodgson v. Perkins, 84 Va. v. Rynd Farm Oil Co., 63 Pa. St.
706; 5 S. E. 710. 397; Thompson's Appeal, 101 Pa.
66 Kitchen v. Smitn, 101 Pa. St. St. 225; Lynch v. Seymour, 15 Can.
452; Duke v. Hague, 107 Pa. St. 57; Sup. Ct. Rep. 341.
Chicago, etc.. Co. v. United States, «» Baker v. Clark. 128 Cal. 181;
etc., Co., 57 Pa. St. 83. 60 Pac. Rep. 677.
67 Funk V. Haldeman, 53 Pa. St. to Smith v. Jones, 21 Utah 270;
229. 60 Pac. Rep. 1104.
68 Dark v. Johnston, 55 Pa. St.
82 OIL AND GAS.
§63. License. — Consideration. — Revocation.
A license reduced to writing, if supported by a sufficient con-
sideration, may be irrevocable. Such a license may have the
force of an incorporeal hereditament, and take effect as a
covenant.^^ Such a license is one coupled with an interest.^'
Thus where a license was given, in consideration of one hundred
dollars already paid, of an exclusive privilege to drill oil wells
on certain land for the term of ten years, tlie licensee to pay
ten dollars a year for each well drilled from which he con-
tinuously pumped oil, it was held to be an irrevocable license.^^
§64. License, revocation.
While a parol license protects the licensee against the charge
of trespass so long as it is in force, yet the licensor may revoke
it at any time. A conveyance of the property is a revocation
of the license,"^* for tlie reason that a license is purely personal,
and not a part of the land.^'^ But after a license has been fully
executed, and is not dependent on continuous acts, it cannot be
revoked.^*' Improvements placed ujTOn the ground will not pre-
vent the revocation of a parol license; ^^ but tlie licensor must
Ti Boone v. Stover, 66 Mo. 430; ^s Kamphouse v. Gaffner, 73 111.
Desloge v. Pearce, 38 Mo. 588 ; 453 ; Barry v. Worcester, 143 Mass.
Grubb V. Bayard, 2 Wall Jr. 81; 476; 10 N. E. Rep. 180; Desloge v.
Grubb V. Guilford, 4 Watts (Pa.) Pearce. 38 Mo. 588; Barksdale v.
223. See Pifer V. Brown, 43 W. Va. Hairston, 81 Va. 764; Geiger v.
412; 27 S. E. 399 Rep. — ; 49 L. R. Green, 4 Gill (Md.) 472; Miser v.
A. 497; and note in last volume. O'Shea, 37 Ore. 231; 62 Pac. Rep.
72 Brown v. Beecher, 120 Pa. St. 491; Wheeler v. West, 71 Cai. 120;
590; 15 Atl. Rep. 608; Funk v. 11 Pac. Rep. 871; Omaha, etc., Co.
Haldeman, 53 Pa. St. 229. v. Tabor, 13 Colo. 41; 21 Pac. Rep.
"Dark v. Johnston. 55 Pa. St. 925; 5 L. R. A. 236; Kiddle v.
164; 93 Am. Deo. 732; 9 Morr. Min. Brown, 20 Ala. 412; 56 Am. Dec.
Rep. 283; Grubb v. Bayard, 2 Wall 202.
.Jr. 81; 11 Fed. Gas. SO. But while ^o Kamphouse v. GafTner, supra;
Ihe courts treat the privilege given Funk v. Haldeman, 53 Pa. St. 229;
in tliese cases as licenses, it may Rynd v. Rynd Farm Oil Co., 63 Pa.
well be doubted if flic instruments St. 397; Le Fevre v. Le Fevre, 4 S.
did not give an adual interest in and R. 241; Wood v. Leadbitter. 13
the real estate itself. M. and W. 838; Dark v. Jolinston,
74 East Jersey Co. v. Wright, 32 55 Pa. St. 10^*; 93 Am. Dec. 732.
N. J. Eq. 248. 77 Kamphouse v. Gaffner, supra.
■ leasp:s. 8S
^ive the licensee the common law notice of six months — the
notice due a tenant at will — or refund to him his expenditure
in making- the improvements. The object of the six months'
notice is to make the improvements available.'^ The fact that
the licensee had not worked a mine, under a license, long
enough to reward him for labor and expenditures made — will
not prohibit the revocation of his license/'* Upon a revocation
of the license by notice the licensee may remove his machinery
and fixtures.^" After revocation, if the licensee take out min-
eral, he acquires no title to it/^ A license given to a partner-
ship to take out mineral is revoked by a dissolution of the part-
nership.*^
§65. Merger.
If the lessor convey the fee to the lessee, there is a merger of
the estate, and the lease ceases to exist.^^ So if the event hap-
]>ens upon which the lease is to cease, there is a merger.** And
the same is true where the owner may and does abandon his
lease ; or, where he may not abandon it, the lessor acquiescing in
his abandoning it.*^ So a deed of conveyance will merge all
pi-evious contracts with respect to the land between the vendor
and vendee, although in writing.*'^ If a corlessee purcliase the
lands of the lessor or his grantee, such co-lessee becomes the ab-
78 Bush V. Sullivan, 3 Greene S. E. Rep. 756 ; Carroll v. Provin-
(la.) 344; 54 Am. Dec. 506; Beatty cial, etc., Co., 26 Can. S. C. 591.
T. Gregory, 17 la. 109; 85 Am. Dec. »* State v. Coosaw Mining Co., 47
546; Harkness v. Burton, 39 la. Fed. Rep. 225; Fairchild v. Dun-
101; Huff V. MeCauley, 53 Pa. St. bar, 128 Pa. St. 485; 18 Atl. Rep.
206; Funk v. Haldeman, 53 Pa. St. 443.
229. 85 Elk Fork Oil and Gas Co. v.
79 Desloge v. Pearce, supra. Jennings, 84 Fed. Rep. 839 ; Bloom-
80 Desloge v. Pearce, supra. field Coal, etc., Co. v. Tidriek, 99 la.
81 Lunsford V. La Motte Lead Co., 83; 68 N. W. Rep. 570; Hawkins
54 Mo. 426. See Chynowitch v. v. Pepper, 117 N. C. 407; 23 S. E.
Granby. etc.. Co., 74 Mo. 173. Rep. 434; Stage v. Boyer, 183 Pa.
82Barksdale v. Hairston, 81 Va. St. 560; 38 Atl. Rep. 1035.
764. 86 Carroll v. Prudence, etc., Co.,
ssSnoddy V. Bolen. 122 Mo. 479; 26 Can. S. C. 591; Raymond v.
24 S. W. Rep. 142; Detlor v. Hoi- Johnson, 17 Wash. 232; 49 Pac. Rep.
land. 57 Ohio St. 492 ; 4!) N. E. Rep. 492.
«!)0; Silva v. Rankin, 80 Ga. 79; 4
84 OIL AND GAS.
solute owner of tlie royalty reserved in the lease due from the
jtlier lessee, in tlic projwrtion the shares held by him bears
to that of sucli co-lessee ; but the latter's interest is merged in
the fee.^' So if two owners of separate properties make a
joint lease of both tracts, and the lessee purchase one of the
tracts, the lease as ti) it is merged, and thereafter tJie lessee pays
only one-half tlie rent he was to have paid tlie two lessors.®^
§66. Consideration. v
Eveiw lease to be binding must be based upon a considera-
tion ; if it is not, it is void.**^ Thus where the lease did not bind
the lessee to begin and prosecute the work with diligence, and
the only consideration for it was a part of the oil produced, it
was held that it was void for want of mutuality.^'' The same
result was unhesitatingly reached where the lessee had a right
at any time to surrender the lease without paying tlierefor, and
was not bound to begin operations, the only consideration being
a part of the oil produced. ^^ An agreement, however, to pay
a dollar an acre rent, or sink a well as the lessee may see fit, tlie
work to begin by a certain time, and the lessor to have a certain
part of tlie oil produced and so much for each gas well devel-
oped, is supported b}' a sufficient consideration.'''" Where one
dolhir was paid for a lease, to run two years, with the privilege
of twenty-five years on payment of one dollar per acre, it was
held tliere was a sufficient consideration to hold it.°^ But where
S7 Northwestern, etc., Co. v. Davis, Oil Co., 47 W. Va. 84; .34 S. E. Kep.
9 Ohio C. Ct. Rep. 551; .38 Wkly. 923; Treas. v. Eclipse Oil Co.. 47 W.
L. Bull. 200; 40 \Yk\y. L. Bull. 251; Va. 107; .34 S. E. Bep. 933.
(! Ohio Cir. Dec. 529. 92 McMillan v. Philadelphia Co.,
'^sHiggins v. California, etc.. Co., 159 Pa. St. 142; 28 Atl. Rep. 220;
109 Cal. 304; 41 Pac. Rep. 1087. Allegheny Oil Co. v. Snyder, 106
^^ Foster v. Elk Fork, etc., Co., 90 Fed. Rep. 764.
Fed. Rep. 178; 61 U. S. App. 576; 93 Brown v. Ohio Oil Co., 21 Ohio
"2 C. C. A. 560; Huggins v. Daley, C. C. 117; 11 Ohio C. C. Dee. 810;
99 j-ed. Rep. 600; 40 C. C. A. 12; iiffirniod 65 Ohio St. 507: 63 N. E.
48 L. R. A. 320. Bop 76. See also ]\Tonfort v. ]>an-
9" Foster v. Elk Fork, etc.. Co., yon Zinc Co. (Kan.), 72 Pac. Rep.
svpra. 784.
91 Eclipse Oil Co. v. South Penn.
T.EASES.
85
the consideration was nominal, and die lessee led the lessor to
believe operations would begin soon, but tlie lessee had the
power to postpone operations on payment of a small sum of
money, a court of equity refused to uphold the lease, regarding
it merely as an option.'-*' Where the lessee agreed to complete
a second well within a certain time after tlie completion of the
first one, but did not agree to complete or even commence such
first one, as to the second well it was held there was no consid-
eration for the contract."' An agreement to pay " one dollar
per acre each year," where no oil or gas Avas found within two
years, was held too indefinite as an agreement for the further
extension of the lease."" Where the lessee was to pay at least
one thousand dollars per annum for the use of raining property,
it was held not to be error to refuse to charge the jury that
owing to the almost entire absence of ore in mining the con-
sideration for the lease had failed."' A lease, on a considera-
tion of one dollar paid, gave the lessee the right to drill for oil
and gas, with privileges incidental to the production and re-
moval of the oil and gas produced, for a term of two years, and
as long thereafter as they should be found in paying quantities,
not exceeding in all twenty-five years. The lessee was to pay
a rovalty on the production. It then provided that " in case
no well shall be drilled on said premises within two years from
the date hereof, this lease shall become null and void, unless
the lessee shall pay for the further delay at the rate of one dollar
per acre at or before the end of each year thereafter." Tt was
held that the lease constituted an entire contract, and that the
consideration recited in it supported both the grant of the two
years' term and the privilege of extending the time for drilling
by paying the stipulated price therefor."' The payment of one
dollar, and the erection of valuable machineiy on the demised
premises, has been held to l>e a sufficient consideration for a
lease."" Wliere the lease required the lessee to commence a test
04 Eclipse Oil Co. v. South Penn. 97 Bannford v. Lehigh Zinc and
Oil Co.. supra. Iron Co., 33 Fed. Rep. 677.
95 Federal Oil Co. v. Western Oil 98 Allegheny Oil Co. v. Snyder, 106
Co.. 112 Fed. Rep. 373. Fed. Rep. 764; 45 C. C. A. 604.
96 Brown v. Fowler, 65 Ohio St. 99 Herrington v. Wood, 6 Ohio C.
507; 63 N. E. Rep. 76. C. Rep. 326; 3 Ohio Cir. Dec. 475.
86 OIL AND GAS.
well on the premises within a certain time, and tliis require-
ment was complied witli, it was held that the^'e was a sufficient
consideration for sucli lease. ^"^
" A person or company purposing to obtain natural gas in
large quantity for sale or for manufacturing pur}X)ses, finds it
desirable to acquire exclusive right to search for the fugitive
mineral in a laree contiguous area or areas : and thouah it be
not necessary for the proper development of a particular well
or to drill wells upon the land of all the several proprietors
within the district, it is desirable and profitable to have no
comi>eting w'ells on the territory near to the wells deemed suffi-
cient for the development of the territory. This accounts for
and leads to the insertion in contracts made between such pros-
pectors and the land o-vvners of provisions for exclusive rights,
and stipulations forbidding the land owners from drilling wells
upon their own land or permitting others to do so ; also, along
witli a provision for an exclusive right, it is common t» insert
a stipulation for the privilege of delay in drilling wells, upon
a specified consideration. Such provisions constitute valuable
considerations in these contracts."^"^
§67. Option to purchase after development.
A lease provided that ^' after the first well is completed, pro-
vided it is a paying well, said second party shall have tlie privi-
lege of buying or leasing tbe remainder of said Schuler farm,
provided he and said Schuler can agree upon the terms Avithin
six months." The court did not consider this was an option in
the ordinary sense of the term, nor an offer to tiie lessee of the
remainder of the farm upon defined terms, either of purchase
or of lease on royalty, by the acceptance of which he could be-
come either a purchaser or a lessee.'"'
100 Stahl V. Van Vleck, 53 Ohio dum plause, a condition subse-
Rt. 136; 41 N. E. Rep. 35; 33 Wkly. quent, and a surrender clause, ap-
L. Bull. 335. plies to the whole lease, and to each
i"i Simpson v. Pittsburjjh, etc., clause of it. Brown v. Fowler, 65
Co.. 28 Ind. App. 343; 62 N. E. Ohio St. 507; 63 N. E. Rep. 76.
Rep. 753. io2Childs v. Gillespie, 147 Pa.
The consideration of an oil lease St. 173; 23 S. E. Kep. 312.
having a ffrantins; clause, a hah.'ii- ^^'here the lessee served notice of
LEASES. 87
^68. Option to extend lease.
A lease, given for five years, required the lessee to drill a
Avell within six months, or in default pay for further delay an
annual rental in advance, until a well should be completed.
For a failure to complete the well or pay the rental for ten days
after the time specified, the lease should be void, only to be re-
newed by mutual consent; and " no right of action should after
such failure accrue to either party on account of the breach of
any condition " in the lease. The lease was construed to give
the lessee an option to put down a well within six months, and
by paying the rental named, the further option for one year.^"^
Where it is optional with the lessee whether he will take the
land or not at the end of the year, and the lessor represents to
the lessee he would extend the time, and, on the faith of such
representations, the lessee goes on and expends moneys, and car-
ries out his part of the contract, the lessor will be bound ; and if
the property is community property, representations of the les-
sor's husband to the same effect, followed by the expenditure of
money and carrying out the provisions of the lease, will bind
the wife.^'-'
§69. Acceptance of second lease by lessee of first lease.
If a lessee is improperly refused possession by tlie lessor, and
assenting to this refusal he accepts a second lease for the same
premises, tlie act of executing and accepting the second lease
amounts to a rescinding of the first one and terminates all rights
under it. And an assignee of the first lease, who took it with
notice of the execution of the second lease, is bound by the re-
sult, even though he expend large siims of money in developing
an intention to exercise his right of purchase was not completed when
of purchase and take the premises, the option to purchase was exer-
and a deed was then prepared but cised. FHynn v. \^Tiite Breast Coal
not delivered for three months, be- Co.. 72 la. 738; 32 N. W. Rep. 471.
cause of failure of the lessee to pay io3 VanVoorhis v. Oliver, 22
the purchase money, it was held Pittsb. L. J. (N. S.) 114.
that the lessee must pay for the io4 Presidio Mining Co. v. BuUis,
coal he had mined during the three 68 Tex. 581; 4 S. W. Rep. 860.
months of delay, for the contract
88 OIL AXn GAS.
the jDremises before finding out that the lessor is treating such
assignee's possession as one under the second lease which he
had never seen. A mere rumor that the lease has been assigned
is not sufficient to affect the lessor ; but a communication made
directly to him by either the lessee or assignee of the assignee's
understanding of his right of possession, will require him to
act and be binding upon him.^°^
§70. Extension of time of lease may amount to a new lease.
The extension of the time of a lease may amount to a new
lease. Thus where an oil lease was for a term of five years
and as much longer as oil or gas was found or produced in pay-
ing quantities, the consideration being one-eighth of all the oil
produced or found on the premises, delivered free of ex|>ensc
in the tanks or pipe lines to the credit of the lessor; and if gas
was found in sufficient quantity to justify marketing it, then the
consideration was a royalty of one hundred dollars a year for
each well, so long as gas was used from it; and a well was to be
completed within nine months, and in case of failure to do so,
the lessee was to pay a yearly rental of fifty cents per acre, and
it was conditioned that a failure to drill the well on time or pay
the rent should render the lease " null and void," and to remain
" without any effect between the parties " ; and neither posses-
sion was taken nor work commenced within the five years, it was
held that the lease terminated after the expiration of five
years, as no gas or oil was produced within that time, and any
extension of time after the expiration of the five years was in
effect the execution of a new lease.^°^
§71. Options. — Revocation.
Options concerning oil or gas territory in the past have not
been uncommon, much to the detriment of the owner of such
territory. An option as applied to oil or gas territory, is an
105 Natural Gas Co. v. Philadel- N. E. Eep. 77; 41 \Yk\j. L. Bull,
phia Co., 1,58 Pa. St. .317; 27 Atl. 48. See Biven v. Ohio Oil Co., 11
Rep. n,51. Ohio C. C. Dec. 810; 21 Ohio C. C.
106 Northwestern Ohio. etc.. Co. V. 117; affirmed 65 Ohio St. 507; 63
City of Tiffin, 59 Ohio St. 420; 54 N. E. Rep. 76.
1. EASES.
89
offer Avhicli has not been accepted, containing the terms and
conditions on whidi the person making it will sell or lease his
premises, and giving the holder of it, or the i^erson to whom
it is made, a specified time within Avhich to elect to accept it.
The holder of the option is nnder no obligation to accept it, but
if he elects to do so he must give the person making it notice of
that fact. After notice given of an election to accept the offer,
it becomes a valid and binding contract. But the acceptance
must be made within the time fixed ; for after that time has ex-
pired the owner of the premises is no longer bound by his offer,
and the option is at an end.'°' Thus where the owner of land
entered into an agreement providing that A should " have the
right to enter upon the premises . . . wnth men, teams,
and tools for the purpose of prospecting and examining for
mines and minerals, and to dig, carry away, and test such por-
tions," etc., " as he may think proper," ..." and if he,
after making such examination and test," etc., " shall be of
opinion that they are worth working, he shall then have the
right to go on and dig, carry away, and cause to be worked such
of the substances there found," tlie exjienses to be borne by A ;
it was held that the instrument conveyed no title to the land to
A, but gave him a license or authority to enter upon the lands
for the specific purpose of prospecting for minerals, and of ex-
tracting the ores, and if he considered them worth working, he
had an option he could enforce. However, before he could
acquire an interest in the land, he had to declare his election
to exercise his option ; when he had done that he would be in a
position to compel a conveyance. Until he had declared his
election, he had a mere license, which was a personal privilege
only and not assignable or transmissible. The agreement by its
terms was binding on the land owners, " heirs and assigns of ihe
respective parties." The owner sold the land. For twenty
vears A visited the land and did some prospecting, but nothing
more. At the end of ten years the owner sold the land. It
was held that A w^as bound to declare his position towards the
owner of the land as soon as it was fairly possible. " Fair
107 McMillan v. Philadelphia Co., Barrett v. ^McAllister, 33 W. Va.
159 Pa. St. 142; 28 Atl. Rep. 220; 738; 11 S. E. Rep. 220.
90 OIL AND GAS.
dealing," said the court, ^' required of him to take the requisite
steps, under this agreement, within a reasonable time. Xo time
hcing specitied in the instrument, the law alHxed to it tlic obli-
gation of proceeding witliin what would be deemed a reasonable
time," As the owner had a right to revoke the license, and A
had failed to declare his position with reference to the land, the
court considered the conveyance a revocation of the license.^"^
Where the instrument was to run ninety-nine years and was of
the " mineral and petroleum interests " in the land, the so-
called lessees to pay " one-tenth part of the net profits of what-
ever may be discovered and worked in and ujwn said lands
deemed admissible to be tested and worked," and the lessees
agreed " to commence testing said property within three years'
time," it was held that the lessee was under no obligation to
commence work unless he deemed it advisable, that there was no
consideration for the instniment, and therefore it was void ;
and that it was a mere option.^"^ Where a lease provided if oil
or ffas were found the lessee should have the refusal for three
months of a lease of an adjoining tract, on terms " that may be
equal to the best terms offered by any other person or persons
therefor," it was held that this option passed with an assign-
ment of the lease, even though the lease was not assignable, the
lessor having entered into a new agreement with the assignee, es-
pecially providing for a continuance of the covenants of the lease
unmodified. ^^^ An option without any consideration for it,
may be withdrawn at any time before its acceptance.^" A so-
called lease, not binding on the lessee to carry out its covenants,
but reserving to him the right to defeat it at any time, and
relieve himself from the payment of any consideration for it,
is invalid to create any estate except a mere oyrtional right of
entry, w^hich can be terminated by either party at his will, and
which the death of the lessor does terminate.^^^ A lease pro-
losCahoon v. Bayaiid, 123 N. Y. "oGuffey v. Clever, 146 Pa. St.
298; 25 N. E. Rep. .376. 548; 23 Atl. Rep. 161.
109 Petroleum Co. v. Coal, etc., mSnow v. Nelson, 113 Fed. Rep.
Co.. 89 Tenn. 381; 18 S. W. Rep. 3.53.
65; Snodgras.s v. South Penn. Oil 112 Trees v. Eclipse Oil Co., 47
Co., 47 VV. Va. 509; 35 S. E. Rep. W. Va. 107; .34 S. E. Rep. 933;
:820. Steelsmith v. Gartlan, 45 VV. Va.
LEASES.
91
vided that it should become null and void, and all rights under
it should cease and determine, unless a well should be completed
on the premises within one month from the date thereof, or un-
less the lessee should pay at tlie rate of one hundred dollars
monthly, in advance, for each additional month such completion
was delayed, from the time mentioned for the completion of the
well, until a well was completed. It was held that this was a
mere option, revocable at the pleasure of the lessee."' Where
a lease contained a clause that at the end of the term the lessee
might have the right to purchase the leased premises, this was
held to give the assignee of the lease the right to make tlie pur-
chase."'
^72. Options continued.
As a rule time is of the essence of an option, as is well illus-
trated by an agreement providing that the prospective pur-
chaser should " have the refusal ten days from date " ; and it
was held that the purchaser must exercise his option within
tliat time by a declaration of an intention to purchase, although
it was not necessary to complete the purchase within that
time."^ In si^eaking of options on oil or gas lands, the Su-
preme Court of the United States used this language: " The
fluctuating character and value of this character of property is
remarkably illustrated in the history of the production of min-
eral oil from wells. Proix^rty worth thousands today is worth
nothing tomorrow ; and that which we today sell for a thousand
dollars as its fair value, may by the natural changes of a week,
or the energy and courage of desperate enterprise, in the same
time, be made to yield that much every day. The injustice,
therefore, is obvious of permitting one holding the right to as-
sert an ownership in such property to voluntarily await the
event, and then decide, when the danger which is over had been
27; 29 S. E. Rep. 978; 44 L. R. A. n* Xapier v. Darlington, 70 Pa.
107. St. 64.
113 Glasgow V. Griffith, 22 Pittsb. ns Smith's Appeal, 69 Pa. St. 4/4.
L. J. (N. S.) 181. See Flynn v. White Brenst Coal Co.,
72 la. 7.38: 32 N. W. Rep. 471.
92 OIL AND GAS.
at the risk of another, to come in and share the profit. While
a iniich longer time might be allowed to assert this right in re-
gard to real estate whose value is fixed, on which no outlay is
made for improvement, and but little change in value, the class
of property here considered, subject to the most rapid, frequent
and violent fluctuations in value of anything known as property,
requires prompt action in all who hold an option, whether they
will share its risks or stand clear of them." ^^"^ One who pur-
chases land, with knowledge that another holds an option upon
it, takes it subject to the right of the person holding such option,
and he holds it in trust for him. The }x?rson having the option
may follow the land and compel such purchaser to execute to
him a lease or a deed of conveyance, as the option may provide ;
or he may, in case of an option to purchase, compel the original
owner to pay him what he had agreed to take for the land, and
have a decree to sell it in order to satisfy his claim. Of
course, both the original owner and purchaser are necessary
parties to the suit."^ Where lands and the oil and gas in it
were let, demised and granted for the purpose and with the ex-
clusive right to drill and operate for oil and gas for five years,
and as much longer as oil and gas should be found in paying
quantities, the consideration being one dollar and a promise to
pay certain rentals for further delay if default should be made
in drilling a test well within a year ; and there was a provision
in the lease that a failure to drill the well or pay the rent should
render it void both as to lessor and lessee, it was held this was
more than an option or license, being a lease of the land, oil and
gas for the time and purposes specified. ^^®
lie Twin-Lick Oil Co. v. Marbuiy. us Woodland Oil Co. v. Crawford,
91 U. S. 587. See Johnston v. 55 Ohio St. 161 ; 44 N. E. Rep. 1093 ;
Standard Mining Co., 148 U. S. .34 L. R. A. 62. See Monfort v.
360; 13 Sup. Ct. Rep. 585; Hoyt v. Lanyon Zinc Co. (Kan.), 72 Pac.
Latham, 143 U. S. 553; 12 Sup. Ct. Rep. 784.
Rep. 568; Hammond v. Hopkins, 143 A nominal consideration will not
U. S. 224; Felix v. Patrick; 145 U. prevent a so-called lease being con-
S. 317; 12 Sup Ct. Rop. 862. sidered an option. Eclipse Oil Co.
117 Barrett v. McAllister, 33 W. v. South Penn. Oil Co., 47 W. Va.
Va. 738; 11 S. E. Rep. 220. See 107; 34 S. E. Rep. 923.
Weaver v. Burr, 31 W. Va. 736; 8 "Contracts unperformed, optional
S. E. Rep. 743. as to one of the parties, are optional
LEASES. 93
§73. Option to pay rent or drill well.
As a rule a lessee cannot exercise an option concerning the
development or working of the premises to avoid the obligation
of a lease. This was well illustrated by a case in which the
lessee was to pay a monthly rental nntil a well was completed,
and for a failure to complete the well or pay the rental the lease
was to be absolutely null and void. It was held that the fact
that the lessee had the option to drill the well or not, or pay
the rental or not, simply gave him the right merely to elect to
drill the well or to pay the rental, and not to elect to do neither
and merely suffer a forfeiture of the lease."'' Where the in-
strument executed by the o^^mer of the land and other persons
granted all the oil and gas on the land described, to be paid for
by a royalty named, operations to be commenced within two
years or the instrument to be void ; but a forfeiture might be
averted from year to year thereafter by paying one hundred
dollars in advance ; it was held that the contract could not be
regarded as a sale, to be defeated on condition subsequent, for
the reason that the real consideration was for the development
of the property ; and as no definite time was fixed for its devel-
opment, and it being requisite to an option that tJiere be some
time for performance, the owner might rescind the contract, in
the absence of any equities owing to any work having been
begun by such other persons.^"**
§74. Appurtenances, what will pass as such.
" A conveyance of one acre of land can never be made, by
legal construction, to carry another acre by way of incident or
appurtenant to the first" ^"^ i^or can one tract be so appur-
as to both." Steelsmith v. Gartlan, 120 National Oil and Pipe Line
45 W. Va. 27; 29 S. E. Rep. 978; Co. v. Teel (Tex. Civ. App.), 67 S.
44 L. R. A. 107. See Presidio Min- W. Rep. 54.5.
in^ Co. V. Bellis, 68 Tex. 581; 4 S. 121 Child v. Starr, 4 Hill 369;
W. Rep. 860. Trustees of School v. Schroll. 120
119 Jackson v. O'Hara, 183 Pa. St. 111. 509; 12 N. E. Rep. 243; Ogden
233; 38 Atl. Rep. 624. But see v. Jennings, 62 N. Y. 526.
Monfort v. Lenyon Zinc Co. (Kan.),
72 Pac. Rep. 784.
94
on, AND GAS.
tenant to another as to carry the latter with it in case it is con-
veyed.^'" A deed conveying laud and " all appurtenances "
conveys incorporeal and not corporeal rights.^"'^ A grant of a
right to drill for oil and gas in a certain tract carries with it, as
appurtenant thereto, a right of ingress and egress, and space-
enough to operate, to store oil, and necessary pipe lines to carry
away the oil and gas.^^*
§75. Statute of Frauds.
A few decisions may be stated involving the Statute of Frauds
without a discussion of any particular rule. Thus a lessor may
by parol release the lessee from the payment of a royalty or
rent.^"^ A parol agreement between a lessee and a well driller,
to put down a well, for an interest in the oil obtained is valid.'"**
So is parol agreement between land owners not to drill within a
certain distance of the boundary line between their respective
tracts of land ; '"^ and likewise a parol agreement to locate a
mine and share the expense of locating and developing it ; ''"® or
that a mine should be worked on the shares.''^ An oral agree-
•ment to deliver a certain share of oil to be produced from land,
when put in a tank, is an agreement to give an interest in land,
and is within the statute.^'"'
122 Humphreys v. McKissoclc, 140
U. S. 304; 11 Sup. Ct. Rep. 779;
Grover v. Howard^ 31 Me. 546.
i23Hofer's Appeal, 116 Pa. St.
360; 9 Atl. Rep. 441.
i24Dietz V. Mission Transfer Co.,
95 Cal. 92; 30 Pac. Rep. 380.
A grant of a lower vein of coal
carries with it, as appurtenant
thereto, the right to pass through
the upper vein. Chartiers Block
Coal Co. V. Mellon, 152 Pa. St. 286;
25 Atl. Rep. 597; 18 L. R. A. 702.
A side track, used in operating a
mine, passes with a lease of the
mine, as appurtenant thereto. Con-
solidated Coal Co. V. Savitz, 57 111.
App. 659.
125 Crawford v. Bellvere, etc., Gas
Co., 183 Pa. St. 227; 38 Atl. Rep.
595; Nilson v. Goldstein, 152 Pa. St.
493; 25 Atl. Rep. 493.
i2cHaight V. Conners, (Pa. St.) ;
24 Atl. Rep. 302.
127 Ware v. Longmade, 9 Ohio C,
Ct. Rep. 85.
i28Moritz V. Lovelle, 77 Cal. 10;
18 Pac. Rep. 803.
i29Hudepohl v. Libert, etc., Co.,
80 Cal. 553; 22 Pac. Rep. 339.
isoLithgow V. Shook, 39 Ohio
Wkly. L. Bull. 39. See Heller v.
Dailey, 28 Ind. App. 555; 63 N. E.
Rep. 490.
l.EASES. 95
§76. Description of leased premises.
Parol evidence is not admissible to vary a definite descrip-
tion contained in a lease, or to show that it was the intention to
cover another tract.^^' " In the description of real estate in a
written instrument the land must be so far described that it may
be identified without resort to parol evidence. In such casi ,
if an officer is unable to locate the land without tlio exerci>i
of an arbitrary discretion, the description is insufficient.'' In
the case from which this quotation is made the lease was of
" one tract of land, cacli twenty feet square of the following real
estate, towit : All that part of W. i/o, N. E. i/4, Sec. 24, town
23 north, range 5 east, wliich lies south and west of Wild Cat
Creek, containing in all thirty-two acres, one of said twenty-
foot tracts being eight rods south and fifteen east of northwest
corner of the above described tract." It was held that this
descri])tion was void for insufficiency, even admitting that the
word " rods " should be supplied after the word " fifteen " ;
for it was manifest that every part of the square could not be
eight rods south and fifteen rods east of the northwest corner
of the whole tract; and the description failed to state what part
of it is so situated. ^^" But a lease of a large tract, only a part
of it to be operated, which part the lessor is to designate, is not
void ; and the lessor may sue on the covenants of the lease, al-
though he has not designated the part to be occupied by the
lessee because he refused to allow him to do so, if he has been
ready to point them out to such lessee, and so avers in his com-
plaint.^^^ A description in a lease of a tract of land twenty
feet square " situated at the southeast corner of the north half
of the southwest quarter " of a certain quarter section of land
sufficiently describes the tract granted."* The owner of
1^1 DufHeld V. Hue, 129 Pa. St. Lingeman v. Shirk, 15 Ind. App.
■94; 18 Atl. Rep. 566. 432; 43 N. E. Hep. 33; Cheney v.
132 Diamond Plate Glass Co. v. Cook, 7 Wis. 357; Washburn v.
Tennell. 22 Ind. App. 132; 52 N. E. Fletcher, 42 Wis. 152; Roehl v. Hau-
Kep. 168. messer, 114 Ind. 311; 15 N. E. Rep.
133 Indianapolis Natural Gas Co. 345.
V. Spaugh, 17 Ind. App. 683; 46 N. i34 Simpson v. Pittsburgh, etc.,
E. Rep. 691. See Stahl v. Van Vleck, Co.. 28 Ind. App. 343; 62 N. E. Rep.
53 Ohio St. 136; 41 N. E. Rep. 35; 753.
96 on. AA'D GAS.
three forty-acre and adjoining tracts leased one acre, to
be selected by himself; and in the lease it was "agreed on
the party of the first part that if oil or gas be obtained by the
second party or assigns . . . upon said tract, or on lands
adjoining the same premises of which the foregoing one acre
described embraces a part, said second party shall have the
right to operate acres of the balance of said premises on the
same terms as above." It was held that the forty-acre tract in
which tlie one acre, after the lease had been executed, had been
selected by the lessor, was the forty acres to be operated under
the contract. ^''^
§77. Right of lessor to use surface.
A lease of a tract of land for oil or gas purposes does not
necessarily exclude the lessor from using or cultivating its sur-
face, if he does not interfere with the operations of the lessee.
Usually the lessee is given possession of so much of the surface
surrounding the well or wells, with ingress and egress, as will
enable him to drill and oi^erate them, with a right to storage
and ways to lay pipe lines ; and the remainder of the surface
is resented for the use of the lessor. Or the lessee may be re-
stricted in his operations to a certain described tract, carved out
of a larger tract, although the right to take the oil or gas under
sudi larger tract is unqualifiedly given him. An instance of
this kind came before the Supreme Court of the United States.
An owner of forty acres gave a lease on it " for tlie sole and
only purpose of boring, mining, and excavating for petroleum
or carbon oil and gas, and piping of oil and gas," " excepting
reserved therefrom ten acres," for two years, or as long as gas
should be found in paying quantities. He was to receive one-
eighth of the oil produced, and two hundred dollars per annum
for each gas well drilled. The lessor reserved the right to
" fully use and enjoy the said premises for the purpose of
tillage, except such parts as may be necessary for said mining
purposes, and a right of way to and from the place or places
of said mining or excavating." Tn construing the lease, the
i35Stahl V. Van Vleck, 53 Ohio St. 136; 41 N. E. Rep. 35.
I.EASES. i)7
court said : " The subject of tlie graut was not the lands, cer-
tainly not the surface. All of that, except the portions actually
necessary for operating purposes and the easement of ingi'ess
and egress, was expressly reserved to Taylor, The real sub-
ject of the grant was the gas and oil contained in or obtainable
from the land, or rather the right to take possession of the gas
and oil by mining and boring for the same." Of course, the
lease gave all the oil and gas under the entire forty acres.'^*^
In another case, where the lease specified that no wells were to
be drilled within three hundred yards of a certain building on
the leased tract, and the lessor had undertaken to lease this
three hundred yards to a third party, the court said : " The
well which res]xmdent proposes to bore is within this prohibited
distance; and the respondents claim that Brown, and they as
his lessees, have the right to drill wells within that part of the
territory. But the clause in question is neither a reservation
nor an exception as to the land, but a limitation as to the privi-
lege granted. It does not, in any way diminish the area of the
land leased — that is still the whole tract; but it restricts the
operations of the lessees in putting down wells to the portion
outside of the prohibited distance. For right of way and other
purposes of the lease, excepting the location of wells, tbe space
inside the stipulated line is as much leased to the lessee as any
other part of the tract. The terms of the grant would imply
the reservation to the lessor of the possession of the soil for pur-
poses other than those granted to the lessee, and the parties have
expressed what otherwise would have been implied by the provi-
sion that the lessor is to fully use and enjoy the said premises
for the purpose of tillage, except such part as shall be necessary
for said operating purposes." ^^^
1-6 Brown v. SpilmaTi, 155 U. S. cupy enough territory t» enable him
665; 15 Sup. Ct. Rep. 245; revers- to drill and operate a well or the
ing 45 Fed. Rep. 291. necessary wells. Wardell v. Wat-
137 Westmoreland, etc., Co. v. De- son. 93 Mo. 107; 5 S. W. Rep. 605.
Witt, 130 Pa. St. 235; 18 Atl. Rep. The word "surface" used in an
724; 29 Amer. L. Reg. 93; 5 L. R. A- oil lease means that portion of the
731. See Funk v. Haldeman, 53 Pa. land which is or may be used for
St. 229"; Barker v. Dale. 3 Pittsb. agricultural purposes. Williams v.
190. South Penn. Oil Co. (W. Va.), 43
The lessee has the right to oc- S. E. Rep. 214.
DS oil- AA'D GAS.
§78. Construction.
In a celebrated oil case it was said with reference to the rnle
to be applied to the construction of oil leases that '" Such leases
are construed most strictly against the lessee, and favorable to
the lessor." ^^^ '' When a lease provides the mode, manner,
iind character of search to be made, implications in regard
thereto are excluded thereby as repugnant. And the demise
for the purpose of operating for oil and gas for the period of
five years is dependent upon the discovery of oil and gas in the
search provided for, if such search is unsuccessful, the demise
fails therewith, as such discovery is a condition precedent to
the continuance or vesting of the demise. The lessee's title
being inchoate and contingent, both as to the five-year limit and
time thereafter, on the finding of oil and gas in paying quan-
tities, did not become vested by reason of his putting down a
non-productive well. This gave him no new or more extensive
rights than he enjoyed before, but in fact destro^yed all his
rights under the lease." ^^^
" Generally, it is the lessee who is favored, and, after a sub-
stantial compliance by him with the terms of the contract,
equity will not regard a technical breach. But, with mining
leases, it is otherwise. This is due principally, if not entirely,
to the nature of the business of mining, and, more specifically,
oil mining; to the temptation offered the shrewd operator to
purchase at a nominal price the right of developing the lands,
the owner of which is iimorant of their real value for any pur-
pose, and then to hold them indefinitely, should it suit his ]uir-
pose, neither working them hiivself nor ]>ermitting another to
do so. Of course, it may be said, in a general way, that ]iar-
i^s Citinpf Bettman v. Harness, 42 vent delay and unproductiveness.
W. Va. 43.3; 21 S. E. Rep. 271; 30 Parish Fork Oil Co. v. Bridgewater
L. R. A. 566; Parish Fork Oil Co. Gas Co.. 51 W. Va. 583; 42 S. E.
V. Brido^ewater Gas Co., 51 W. Va. Rep. 655.
583; 42 S. E. Rep. 655. If the parties act upon interline---
3 30 Steelsmith v. Gartlan, 45 W. tions improperly made, the constrif
Va. 27; 29 S. E. Rep. 978; 44 L. R. tion they thus put upon the lens •
A. 107. ^vill he adopted by the courts.
An oil lease will be so construed Barnsdall v. Boley, 119 Fed. Rep.
as to promote development and pre- 191.
LEASES. 99
ties may make any contract which they desire, and, if a lessor
should by way of lease make his intention clear to grant the oil
and gas rights iqxjn his property for an inadequate considera-
tion, the courts will enforce it. But the lessee, where the in-
stniment presents a semblance of inequality or unfairness, will
find that he has a thorny road to travel before reaching a
judicial establishment of his claims. And, in the case sup-
posed, the mere fact that the instrument would seem to con-
template the equivalent of an absolute gift of valuable rights
would at once arouse the suspicion of a chancellor, which, if
not dispelled by the clearest proof, would lead to its prompt
reforming or setting aside upon the application of the proper
parties." "*^ A lease must be construed as a whole.^'*^ Thus
the consideration of a lease having a granting clause, a haben-
dum clause, a condition subsequent, and a surrender clause,
applies to the whole lease and to each clause of it.*"^
§79. Construction of instrument by parties.
In cases w^here the parties have put a construction upon an
instrument, especially in instances of doubt, that construction
will be applied to the instrument by the courts in litigation
arising between them over tlie subject matter of the instrument.
Thus where a lease had been treated by both parties to it as a
lease at will, in an action by the lessor to rescind, brought six-
teien months after its commencement, the court held that the-
lessee was entitled to recover whatever his advancement exceeded
the amount of the royalties ou the ore taken out, applying to it
the rule with respect to a tenancy at will, although another con-
struction Avas possible.^*"
140 Bryan on Petroleum, p. 146, i42 Oglesbys v. Hughes, 96 Va.
quoted in Husrgins v. Daley, 99 Fed. 115; 30 S. E. Rep. 439. As to un-
Rep. 606; 40 C. C. A. 12; 48 L. R. authorized changes becoming bind-
A. 320. ing, see Barnsdall v. Boley, 119 Fed,
1-41 Steelsmith v. Gartlan. supra. Rep. 191.
*i4i Brown v. Fowler, 65 Ohio St.
507 ; 63 N. E. Rep. 76.
100 OIL AND GAS.
§80. Unfilled blanks. — Written and printed clauses.
It is no common occurrence for unfilled blanks to be left in
leases, especially where printed forms are used. Occasionally
the lease for this reason is so uncertain as to be void. Thus
where the operations were to be commenced and prosecuted for
two years from the date of the lease, ^' or thereafter pay to the
party of the first part $ per , until work is com-
menced," the lease was held void for uncertainty by reason of
the unfilled blanks. The lease otherwise was a hard one, and
the court seized upon the uncertainty to declare it void.""* If
an oil lease be partly written, and an ambiguity arise out of the
inconsistency between the printecj and written parts, the latter
will control. This is the rule Wit]^ respect to all instruments
that are partly printed and partly-.TBh-itten.^** And it is esper
pecially so where the parties liav6 actea m accordance with the
written stipulations."^ • • ;
§81. Execution of lease. \
If a statute provide the manner Ql^^form in which a lease shall
be executed, it must be followed, or else it will be void. Thus
in Ohio a statute provicles that the signature of a lessor of a
lease exceeding three jea-ts- roust ,be attested by two subscribing
■witnesses ; and und^r its; prvvisions' it is held that if there be
no such attestation, the Ifeas^is-^oid."*'
§82. Defective execution or acknowledgment.
A lessee cannot assert an imperfect execution of a lease to
escape the payment of rent or royalty ; nor the fact that the
lessor has not used his correct name, or had used an assumed
one."^ And the fact that the acknowledgment is not such as
to bind a married woman making it will not prevent her recover-
ies Eaton v. Wilcox, 42 Hun 61. Alhripht. 18 Ind. App. 151; 47 X.
144 Fort Oranfre Oil Co. v. Wich- E. Rep. 682.
man. 17 Ohio Cir. Ct. Rep. 57; 9 i4g Lang^made v. Weaver, 65 Oliin
Ohio Cir. Dec. 650. St. 17; 60 N. E. Rep. 092.
145 Kokomo Natural Gas Co. v. i47 Marmet Co. v. Archibald, 37
W. Va. 778; 17 S. E. Rep. 290.
LEASES, 101
ing rentals from the lessee in an action brought by her afcer the
lease had expired by its own limitation. "** If a seal is required
in the execution of a lease by a corporation and one is not used,
yet if the lessor, or its successors, accept rent or royalty under
the lease it will be estopped to deny its validity."'*
^83. Parol change of written lease.
A parol change of a Avritten lease already executed is valid,
especially if it relates to the consideration to be paid for it.^""^
If the lease be altered, without the consent of the lessor, by
writing in it additional conditions ; and the lessor, with knowl-
edge that the changes have been made, make no objection, but
insist throughout the term (or even a part of it) on the per-
•formaiice of the contract by the lessee, and accept royalties or
rents thereunder, such lessee will waive his right to insist on
the invalidity of the lease because of the alteration.^^^
§84. Acceptance. — Estoppel.
Acceptance of a lease may be shown by an actual oral or writ-
ten acceptance. Taking it to the proper office, by the lessee,
and filing it for recording is such an act as from which an ac-
ceptance may be presumed, or from which an inference of ac-
ceptance may be drawn. Entering ujwn the premises and be-
ginning the performance of the agreements or covenants con-
tained in the lease is such an act of aceeptance as will estop the
lessee from saying that he had not accepted the lease.^^' If a
co-lessee has signed the lease on behalf of both not only will such
i48Kunkle v. People's Gas Co., gus v. Whitehead, 89 Pa. St. 131.
165 Pa. St. 133; 30 Atl. Rep. 719; See Vanderlin v. Hovis, 152 Pa. St.
33 L. R. A. 847. 11; 25 Atl. Rep. 232.
Reformation of acknowledgment isi Barnsdall v. Boley, 119 Fed.
under Pennsylvania Act of May 25, Rep. 191.
1879. P. L. 149. Manufacturers', i52Ahrns v. Chartiers Valley Gas
etc.. Co. V. Douglass. 130 Pa. St. Co., 188 Pa. St. 249; 41 Atl. Rep.
283; 18 Atl. Rep. 630. 739; Grove v. Hodges, 55 Pa. St.
1*9 Bicknell v. Austin, 62 Fed. 504; Harlan v. Logansport. etc., Co.,
Rep. 432. 133 Ind. 323; 32 N. E. Rep. 930;
150 Sargent v. Robertson, 17 Ind. Indianapolis, etc., Co. v. Kibbey, 135
App. 411; 46 N. E. Rep. 925; \Yil- Ind. 357; 35 N. E. Rep. 392.
•102 OIL AND GAS.
co-lessee be estopped to deny lie had no authority to sign for his
fellow lessee, but the latter, by accepting benefits under the lease
ratifies the act of the co-lessee in signing his name to the lease,
especially if he knew at the time it was done that his name had
been so signed/^^ Where a lessee denies the execution of a
lease, a printed form, such as the lessee generally uses, and
which is printed in a book used in an office of public records,
cannot be put in evidence; nor can the declarations of an al-
leged agent, that he signed the deed on behalf of the lessee, be
used, unless used to contradict the testimony of such alleged
agent.' ^■^
§85. Lessee need not sign lease. — Deed.
A lessee need not sign the lease ; by the acceptance of it he is
bound by all its provisions. " Nor is it material that this con-
tract is not signed by the grantee. The acceptance of the deed
makes it a contract in writing, binding upon the grantee just as
the acceptance by a lessee of a lease in writing signied only by
the lessor makes it a written contract binding upon such lessee ;
and suit can be instituted upon it, and the same rights main-
tained, as though it were also signed by the grantee. "'^^
§86. Separate owners giving joint lease.
There is nothing to prevent the owners of separate and dis-
tinct tracts of land giving a joint lease of their separate prem-
iss Rice V. Ege, 42 Fed. Rep. 661. lenbeck. 35 N. Y. 204; Huff v. Nick-
154 Morris v. Guffey, 188 Pa. St. erson, 27 Me. 106; Burbank v. Pills-
534; 41 Atl. Rep. 731. bury, 48 N. H. 475; Goodwin v. Gil-
135 Schumucker v. Sibert, 18 Kan. bert, 9 Mass. 510; Harrison v. Vree-
104; Indianapolis Natural Gas Co. land, 38 N. J. L. 360; Harlan v.
V. Kibbey, 135 Ind. 357; 35 N. E. Logansport Natural Gas Co., 133
Rep. 392; Midland R. W. Co. v. Ind. 323 ; 32 N. E. Rep. 930.
Fislier, 125 Ind. 19; 24 N. E. Rep. A person wliose name is not men-
756; Ricard v. Sanderson, 41 N. Y. tioned in tbe body of tbe lease is
179; Atlantic Dock, etc., Co. v. not a party to it, nor bound by it
Leavitt, 54 N. Y. 35; 13 Am. Rep. as grantor, altbouijb he signs and
556; Rogers v. Eagle Fire Co., 9 acknowledges it as his deed. Barns-
Wend. 611, 618; Spaulding v. Hal- dall v. Boley, 119 Fed. Rep. 191.
I.EASES. 103
ises on royalty payable to them jointly ; and if the lessee pur-
chase the land of one of them, he must continue paying one-half
the royalty to the other.'^°
S87. Notice to one of several lessees.
A notice to one of several joint lessees is notice to all of them.
Thus where a lease or grant was made to four persons jointly, a
notice addressed to one of them that the lease or grant had ex-
pired, and to keep off the premises, was held a sufficient notice
to all of them.^^^
^88. Second lease. — Notice.
A person who takes a lease on premises already leased, with
notice of the first lease, takes it subject to the rights of the first
lessee.^^^ Notice to the agent of the second lessee is notice to
the lessee, if such agent is employed by. such lessee in securing
leases for him.^^** Where the law partner of the second lessee,
on being consulted by the lessor, drew up the lease, knowing all
the facts, for the express purpose of defeating the title of the
holders of the prior and unrecorded lease, it was held that such
lessee was chargeable with notice of the facts brought to his
partner's knowledge during the consultation, and he took his
i56Higgins V. California, etc., Co., isiDetlor v. Holland, 57 Ohio St.
109 Cal. 304; 41 Pac. Rep. 1087. 492; 49 N. E. Rep. 690; 40 L. R.
For an instance of a lease of two A. 266; Baker v. Kellogg, 29 Ohio
separate tracts of this kind, made St. 663.
by husband and wife, that was held iss Thompson v. Christie, 138 Pa.
their joint lease, see Harness v. St. 230; 27 W. N. C. 87; 20 Atl.
Eastern Oil Co.. 49 W. Va. 232; 38 Rep. 934; 11 L. R. A. 236; Henne
S. E. Rep. 662. See also North- v. South Penn. Oil Co. (W. Va.),
western Ohio, etc., Co. v. Ullery, 43 S. E. Rep. 147.
(Ohio). 67 N. E. Rep. 494, and In Ohio the lease must be record-
Wettengel v. Gormley. 160 Pa. St. ed or the lessee have actual pos-
5.59; 28 Atl. Rep. 934; 40 Am. St. session to put the second lessee or a
Rep. 733. purchaser on his guard. North-
Of an instance of a father and western, etc.. Co. v. City of Tiffin,
n^inor son. see Swint v. McCalmont 59 Ohio St. 420; 54 N. E. Rep. 77.
Oil Co.. 184 Pa. St. 202; 38 Atl. i-'^n South Penn. Oil Co. v. Stone
Rep. 1021. (\\. Va.). 57 S. E. Rep. 374.
104 OIL AND GAS.
lease subject to the first lessee's rigiits.^"" If the lessee does not
record his lease, the drilHng of a well in the vicinity of the
leased premises, on another farm, in fulfillment. of a covenant
with his lessor, will not he notice to an innocent second lessee ;
for such an act is not sufficient to put others on notice of his pos-
session of the leased premises.^*'^ Where a statute required a
lessee or licensee to record his oil or gas lease or license, and
made its record the only notice that could be available against
third persons acquiring an interest in the land adverse to the
lessee, unless the latter was in actual possession ; it was held
that a lease which gave the lessee the sole right for a term of
years to drill and operate for oil and gas upon the leased prem-
ises, although not witnessed as the statute required to constitute
it a legal lease, was still good as a license, and entitled to record
as such ; and also good in equity as an agreement to make a
lease; and the record of it was notice to third persons of all
rights of the lessee under it. It was also said that if the instru-
ment was not one entitled to record, then notice of its contents
could not be given to third persons by recording it, but actual
knowledge of its provisions would be effectual to charge a sub-
sequent lessee with notice of the equities of the grantor
therein.'*''
§89. Agent of lessee may take lease after forfeiture.
The agent of a lessee, who has entered on the leased premises
as such agent, may take a lease from the owner of such premises
after a forfeiture has been made ; and if for some reason his prin-
cipal's lease is void, he may take a lease of the premises after it
160 Thompson v. Christie, supra. One wlio has actually read the
161 Aye V. Philadelphia Co., 103 record of an instrument not entitled
Pa. St. 457; 44 Atl. Pep. 556. to record is chargeable with notice
162 Allegheny Oil Co. v. Snyder, of the contents of the original. Wal-
106 Fed. Pep. 764; 45 C. C. A. 604. ter v. Hartwig, 106 Ind. 123; 6
In this case it was held that a suit N. E. Pep. 5; Musick v. Barney, 49
to quiet title would lie in favor of Mo. 458 ; Hastings v. Cutler. 24 N.
the lessee out of possession, under H. 481 ; Gilbert v. Jess, 31 Wis.
a statute giving one either in or 110; Musgrove v. Bonser, 5 Ore.
out of possession such a right. 313; 20 Am. Pep. 737.
LEASES. 105
is fully developed that his principal will not be able to obtain
any benefit under his lease/'"*
J§90. Exclusive right of licensee of lessee. — Solid mineral — oil.
" A license to dig and take ore is never exclusive of the licen-
sor, unless expressed in such words as to show that it was tlie
intention of the parties. Where the license simply gives the
licensee the right to dig and. take ore, the licensor may take ore
from tlie same mine at the same time, and also grant ])ermis-
sion to others to exercise the same right." ^°* The words of a
license may be such as to exclude the right of the grantor to
mine.^*^^ Thus a license giving the licensee '^ full and free lib-
erty " to work will be sufficient to make the license an exclusive
one.^"° u ^ license may confer a sale or exclusive right, or
simply a right in common. If it simply confers a right to dig
and take ore, or to work a mine, it is not exclusive, and the
licensor may himself take ore from the same land or mine, or
license others to do so. And when it authorizes the licensee to
dig and carry away all the ore to be found in certain lands, it
does not confer an exclusive right. If it be merely a license,
and no estate in the property or land passed, the licensee ac-
quires no title to the ore until he has severed it. Such a license
has been adjudged to confer a privilege similar to a right of
common sans nombre, to give a right without stint as to quan-
tity, but not exclusive of the grantor. There can be no doubt
that tlie instrument under consideration conferred an exclusive
i'''3Duffield V. Michaels, 97 Fed. Trotter, 29 X. J. Eq. 561; Jennings
Rep. 825. Bros. & Co. v. Beale, 158 Pa. St.
The lessee of mining property is 283 ; 27 Atl. Rep. 948 ; Massott v.
not the agent of the owner. Wilkins Moses, 3 S. C. 168; Barker v. Dale,
V. Abell, 26 Colo. 462; 58 Pac. Rep. 2 Fed. Cas. 810; 3 Pittsb. 190;
612. Woodside v. Ciceroni, 93 Fed. Rep.
i64Silsby V. Trotter, 29 N. J. Eq. 1; 35 C. C. A. 177.
228; Mountjoy's Case, Godb. 18; 1 les Caldwell v. Fulton, 31 Pa. St.
Amb. 307 ; 4 Leon. 147 ; Chetham v. 475.
Williamson, 4 East 469; Grubb v. loc Doe. d. Hanley v. Wood, 2
Bayard, 2 Wall Jr. 81; Funk v. Barn, and Aid. 724; Sutherland v.
Haldeman, 53 Pa. St. 229; Stock- Heatlieote [1892], Ch. 504; East
bridge Iron Co. v. Hudson Iron Co., Jersey Co. v. Wright, 32 N. J. Eq.
107 Mass. 290; Manganese Co. v. 248.
106 OIL AND GAS.
right. The licensor has expressed his intention in that respect
in plain words." ^"^ These are cases of solid minerals, and at
first blnsh one wonld suppose that the same rnles would be ai>
plied to gas or oil ; such is not the case. Owing to the " fugi-
tive and wandering nature " of oil and gas, if the licensor or
lessor could put down a well on the leased premises he might
render the right of the licensee or lessee worthless, by drawing
off tlie oil and gas, even after he had expended large sums of
money in developing the premises. It necessarily follows that
the " grant of well rights is necessarily exclusive." ^"^ This
rule is well illustrated in a Pennsylvania case. The owner of
land leased a certain tract of land, according to a division of
the tract into niunbered sites, each site situated on a lot num-
bered respectively on a map; and also sites for three wells south
of the railroad track on it ; to be designated and mutually agreed
upon by him and the lessee, for a term of fifteen years, " with
the sole and exclusive right and privilege during said period of
digging and boring for oil and other minerals on said lot."
The lessee, for oil mining purposes, was restricted to the speci-
fied sites ; and he had no right of possession for any other pur-
pose at any other place on the tract of land described. It was
held that the lessor could not drill wells on the tract of land
outside of the designated sites, nor authorize any one else to do
so ; and if he undertook to do so a court of equity would restrain
him ; for the reason that tlie sinking of wells outside of such
sites would lessen the production of the wells drilled by the les-
see, and the injury would be destructive of his rights and was
incapable of an adequate remedy at law.^®^
167 East Jersey Co. v. Wright, 32 Rep. 724; 29 Am. L. Reg. 93; 5 L.
N. J. Eq. 248; Johnston Iron Co. R. A. 731.
V. C ambria Iron Co., 32 Pa. St. 241 ; les Duffield v. Hue, 136 Pa. St.
Gloninger v. Franklin Coal Co., 55 602; 20 Atl. Rep. 526; Duffield v.
Pa. St. 9; Jennings v. Beale, 158 Hue, 129 Pa. St. 94; 18 Atl. Rep.
Pa. St. 283; 27 Atl. Rep. 948; Rey- 566; Duffield v. Rosenzvveig, 144 P:i.
nolds vs. Cook, 83 Va. 817; 3 S. E. St. 520; 23 Atl. Rep. 4; Duffield v.
Rep. 710; Bronson v. Lane, 91 Pa. Rosenzweig, 150 Pa. St. 543; 24 Atl.
St. 153. Rep. 705; Union Petroleum Co. v.
io« Funk V. Haldeman. 53 Pa. St. Bliven Petroleum Co. 72 Pa. St.
229. 247; Westmoreland, etc., Co. v. 173; Heller v. Daley, 28 Ind. App.
DeWitt, 130 Pa. St. 235; 18 All. 555 ; 63 N. E. Rep. 490. See Guffey
V. Deeds, 9 Pa. Co. Rep. 449.
a
LEASES. 10 i
|91. Implied covenant.
By giving a lease the lessor does not covenant tliat oil or gas
is on the premises, or tliat it can be found on them.^^" There
is, however, an implied covenant of right of entry and quiet en-
joyment for tlie purposes of tlie lease; and it is broken by the
exclusion by the lessor of the lessee from taking possession for
the purposes of the lease, or his withholding from him the pos-
.session for such purposes.''' But making another lease during
the term, by the lessor, whether the first lessee be in actual pos-
session or not, is not a violation of the covenant for quiet enjoy-
ment."" As has been said elsewhere, there is not only
covenant on tlie part of the lessee that he will fully develop the
leased premises, but that he will do so with diligence.'" There
is also an implied covenant on the part of the lessee that he will
put do^vn enough w^ells to protect the leased premises from being
drained by wells on adjacent territory."* If, however, the lease
specifies the number of wells that are to be drilled, there is no
implied covenant that more than Uie number specified are to be
drilled, even though more are needed to fully develop the terri-
tory, or to protect the premises from wells on adjoining terri-
tory."^ The lessee is under no implied covenant to work the
premises at a loss, where the lessor is to receive a part of tbe
product as his comi>ensation ; and his judgment whether or not
iTo Kokonio Natural Gas Co. v. Al- Gartlan, 45 W. Va. 27 ; 29 S. E.
bright. 18 Ind. App. 151; 47 N. E. Rep. 978; 44 L. R. A. (See the
Rep. 682. subject of " Forfeiture.") Adams v.
iTiKnotts V. McGregor, 47 W. Va. Stage, 18 Pa. Super. Ct. Rep. 308;
.566; 35 S. E. Rep. 899. Sharp v. Behr, 117 Fed. Rep. 864;
172 Knotts V. McGregor, supra. Core v. N. Y., etc., Co. (W. Va.),
In Pennsylvania the implication 43 S. E. Rep. 128.
of a covenant for quiet enjoyment "4 Harris v. Ohio Oil Co., 57 Ohio
arising from words of grant in a St. 629; 50 N. E. Rep. 1129; 48 N.
conveyance by virtue of Act of May E. Rep. 502 ; Colgan v. Forest Oil
28. 1715. Sec. 6, applies only to an Co., 30 Pittsb. L. J. (N. S.) 68;
estate of inheritance in fee simple, Kleppner v. Lemon, 176 Pa. St. 502;
and not to a lease of a mere right 35 Atl. Rep. 109; Glasgow v. Char-
to drill oil or gas wells and take tiers, 152 Pa. St. 48; 25 Atl. Rep.
the products. Chambers v. Smith, 232.
183 Pa. St. 122; 38 Atl. Rep. 522. i^s Colgan v. Forest City Oil Co.,
i73Huggins v. Daley. 99 Fed. Rep. 194 Pa. St. 234; 45 Atl. Rep. 119;
€06; 48 L. R. A. 320; Steelsmith v. 75 Am. St. Rep. 695.
108 OIL AND GAS.
the work can be carried on at a profit, if honest, is entitled to
great weight, and should prevail as against the opinion of tlie
lessor, or experts, or the court's, or all of them, to the con-
trary.^'*^ Where the lessee was to pay the lessor a royalty if
the flow of gas was sufficiently strong to be used oif the premises,
and one well was drilled which enabled the lessee to pay the
royalty; but afterwards the well having got out of order, was
abandoned ; it was held that the lessee was under no implied
covenant to fully develop the premises for gas for the common
benefit of the parties to the lease; for the reason that, because
of the i^eculiar nature of natural gas, the effort of the lessee to
discharge such an obligation might result in the entire destruc-
tion of the leasehold/^^ If the causes for forfeiture of a lease
are specified in it, the courts will not infer that there are other
causes of forfeiture not declared in it to be such. Ordinarily
a breach of an implied covenant will not work a forfeiture of
the lease.^^*
§92. Covenant running with land.
Covenants that run witli the land bind all that hold under the
lease, whetlier as assignee or otherwise. As a rule the inten-
tion of the parties to the lease or deed determines the question
whetlier a covenant runs with tbe land ; and to ascertain that in-
tention resort must be had to the words of the covenant, consid-
ered, of course, in the light of the circumstances of the transac-
tion and the subject of the grant.^^^ A covenant to use due
diligence in developing the land is such a covenant. ^®° So is a
176 Young V. Forest Oil Co., 194 from operating it, but contained no
Pa. St. 243; 45 Ail. Rep. 121; 30 provision requiring its operation, it
Pittsb. L. J. (N. S.) 221; Stoddard was held that there was no implied
V. Emery, 128 Pa. St. 436; 24 W. N. covenant on the part of the vendee
C. 566; 18 Atl. Rep. 339. to work the mine. Hawks v. Tay-
1" Knight V. Mfg's. Natural Gas lor, 70 111. App. 255.
Co. (Pa.), 23 Atl. Rep. 164; 29 W. "8 Core v. New York Petroleum
N. C. 261. Co. (W. Va.), 43 S. E. Rep. 128.
In the case of a sale of a mine, i7!>Landell v. Hamilton, 175 Pa.
where the contract provided for the St. 327; 34 Atl. Rep. 663.
payment to the vendor of a certain iso Bradford Oil Co. v. Blair, 113
portion of the net profits arising Pa. St. 83; 4 Atl. Rep. 218.
LEASES. 100
covenant for rent or royalty,^''^ or a certain amount of the oil
produced.^'*' An agreement that rent should be paid for so
much of the surface of the ground as is used for dumping pur-
jwses is a covenant running with the land.^^^ So an agreement
that tlie lessor should have a part of the gas free is such a
covenant. ^^*
§93. Personal covenants.
A right in the lessor to receive gas in a certain quantity, or
for a certain purjx)se, may be a mere personal eovenaiit, and one
not binding on an assigiiee of the lease or grantee of the prem-
ises. Such was held to be the case witli respect to the right to
take coal out of a mine Thus a will provided as follows :
'" To my second son, John, I give and bequeath the plantation
he now occupies, to be enjoyed by him, his heirs and assigns
forever, with free privilege of taking what coal he wants for his
own use off tlie home plantation." When the will was made
there was an open mine on tlie '' home plantation," but none
on the farm John occupied. The court considered the right to
take the coal a mere privilege which was personal to John, and
one that did not pass to his grantee of the land devised to him.^^"
So an agreement in a lease that the lessee may operate an ad-
joining tract, if the lessor shall so elect, is personal between the
lessor and lessee ; and if the lessor has not elected to have it
operated, a hona fide purchaser takes it free from the right of
the lessee to operate it. In such an instance the purchaser is
only bound to inquire if the lessor has elected to have the land
operated according to the terms of the lease.^*® An agreement
isiFennell v. Guffey, 139 Pa. St. Bridge, etc.. Co.. 1S7 Pa. St. 500; 41
341; 20 Atl. Pep. 1048; Springer v. Atl. Pep. 458; Indiana, etc., Oil Co.
Gas Co., 145 Pa. St. 430; 22 Atl. v. Hinton (Ind.), 64 N. E. Rep.
Pep. 986; Fennell v. Guffey, 155 Pa. 224.
St. 38; 29 Atl. Pep. 785. iss Coal Co. v. Pierce. 153 Pa. St.
182 Akin V. Marshall Oil Co. 74 ; 25 Atl. Pep. 1026 ; Indiana, etc.,
(Pa.). 41 Atl. Rep. 748; Crawford Oil Co. v. Hinton (Ind.), 64 N. E.
V. Witherbee, 77 Wis. 419; 46 N. W. Rep. 224.
Rep. 545. 186 Emerine v. Steel. 8 Ohio C. Ct-
183 Schooley v. Butler Mining Co., Pep. 381; 4 Ohio C. Dec. 92; Nor-
9 Kulp (Pa.), 291. cross v. James, 140 Mass. 188; 2 N.
184 Electric City, etc., Co. v. West E. Rep. 946.
110 OIL AND GAS.
on tlie part of the lessee to devote all his time to the development
•and operation of the land is purely personal ; and if tlie lease be
assigned by the lessor the lessee may operate other territory.^*'
An agreement at the end of the lease that the lessor wonld bny
all the tools and machinery used on the leased premises is a per-
sonal covenant.^^^
§94. Assignment of contract giving interest in land. — Incor-
poreal hereditament. — Lease. — Surrender.
If a contract concerning tlie right to drill for oil or gas on
certain premises, and to operate them if either or both be fonnd,
is such as to operate as a grant of an interest in the premises,
then it can be assigned or transferred only in writing, and a
parol transfer of it is void. " At common law, corporeal
hereditaments were demisable witliout deed or writing, the lease
being perfected in the case of a demise for years, by the entry
'of the lessee, and by livery of seizin in the case of a lease for
life ; but a deed was always required for the conveyance of in-
«eorporeal bereditaments. The provision of the first section of
the English Statute of Frauds,^'*" that leases not in writing
:should have the effect of leases at will, left untouched leases of
incorporeal hereditaments.^"** At common law, a lease of cor-
iDoreal hereditaments might be surrendered to him who had the
"I'eversion or remainder without deed, writing, or livery ; but a
■deed was indispensable to a surrender of incorporeal heredita-
ments."^ At common law, a lease for years or for life might
he surrendered by parol or by operation of law."" Incorporeal
liereditaments, the conveyance of which could not be evidenced
and accompanied by livery of seizin, but lay only in grant, ai-
rways at common law could pass only by deed, and could not
he surrendered by operation of law."^ By section three of the
i"Findlay v. Carson, 97 la. 537; "i 2 Piatt Leases, 499.
«66 N. W. Rep. 759. "2 Lynch v. Lynch, 6 Irish L. R.
1S8 Etowah Mining Co. v. Wills 131.
Valley, etc., Co., 121 Ala. 672; 25 in3 Brown St. of F., Sec. 2, 5;
:So. Rep. 720. Reed St. of F., See. 767; Washb.
189 29 Car. II Chap. 3. Real Prop., Sec. 552; Lyon v. Reed.
ioo2 Piatt Leases, 1, 2. 13 M. and W. 285; Wood Landlord
LEASES.
Ill
English Statute of Frauds it was provided, tliat ' no leases
. . . shall be assigned, granted or surrendered, unless it be
by deed or note in writing signed, ... or by act and
operation of law.' After the enactment of this statute, which
introduced no change as to incorporeal hereditaments, they
could not be surrendered except by deed."* The common law
in resiDect to the surrender of leases must be regarded as in
force in this State, except so far as it is modified by our own
statutes.^"'''' Our statutes do not contain, as do those of some of
our States, any express, separate provision relating to assign-
ments or surrenders of leases, corresponding to the third section
of the English statute."® But our statutes contain notliing ex-
pressly or by necessary implication forbidding surrender by
act and operation of law, and construing our express require-
ments concerning conveyances as relating to transfer by eon-
tract, and as including surrenders in fact, we may hold that
such surrenders as properly come within tlie meaning of the
words ' by act and operation of law ' as used in the British
Statute of Frauds and in similar statutory provisions of sister-
States, may be upheld in this State. The provisions of the
English statute for surrender by act and operation of law was
and Tenant (2d ed.), 1154, and S. Indiana. 1901, Sec. .3375.) An-
notes. other statute provided that the
19* Lyon V. Reed, 13 M. and W. word " Lind " included "lands,"
28.0-, 2 Piatt Leases, 503; Brown St. "tenements" and "hereditaments.'*
of F., Sec. 2. 5. (R.S.Indiana.. 1901, Sees. 24L 1309.)
195 R. S. 1901. Sec. 236. While still another dispensed with
19G The court had already quoted the use of the words " heirs and as-
a statute which provided that signs " to create in the grantee and,
"Conveyances of lands or of any estate of inheritance. (R. S. In~
interest therein, shall be by deed in diana, 1901, Sec. 1901.) By the
writing, svihscribed. sealed and duly Statute of Frauds of that State na
acknowledged by the grantor or by action could be brought on any con-
his attorney, except bona fide leases tract for the sale of lands unless,
for a term not exceeding three the contract or some memorandum
years." (R. S. Indiana. 1901. Sec. or note thereof was in writing and
"33.1 ). and it had said that the term signed by the party to be charged
" grantor," as used in the statute, therewith, or by some person au-
embraced " every person by whom thorized to sign it, excepting lease?
any estate or interest in land is ere- not exceeding the term of three
ated. granted, bargained, sold, con- years. (R. S. Indiana, 1901, Sec»
veyed, transferred or assigned." (R. 6629.)
112 OIL AND GAS.
but a statiiton^ regulation of a coninion law method. It seems
sufficiently plain that an interest in land lying only in grant or
a term, unless it be for tliree years or less, camiot be surren-
dered by express contract, that is, cannot be transferred or
yielded up by surrender in fact, without a writing sufficient for
the conveyance of an interest in land greater than can be created
by parol." ^"
§95. Lessee liable after assignment on express covenants.
" It is generally established that the lessee, who before his
assignment of the lease to a third person is bound by both the
express and implied covenants of the lease, continues after the
assignment to be liable upon his express covenants therein, as if
no assignment had been made, and that the assignee is liable
to the lessor upon all the covenants which run with the land,
for non-performance thereof while the estate is in him, but is
not liable for breach of any covenants which occur before the
assigTiment to him or after his assignment to another, the lia-
bility of the lessee after his assignment resting in privity of
contract, that of the assignee resting in privity of estate
and continuing only while such privity exists, though he
remains, after his assignment to another, liable for breach which
he committed while he had the estate. If the assignee hold pos-
session under the lease, or have immediate right to the posses-
sion, when any rent falls due, he will continue liable therefor,
and will not escape such liability by his subsequent assignment,
and this is true whether he become assignee by the act of the
lessee or of the lessee's assignee or by act of law, as by purchase
at a sheriff's or an owner's sale." ^^^
107 Heller v. Dailey, 28 Ind. App. v. Giiffey, 139 Pa. St. 341 ; 20 Atl.
.555; 63 N. E. Rep. 490, citing to Rep. 1048; Aderhold v. Oil Well
last proposition McCall Real Prop. Supply Co., 158 Pa. St. 401; 28 Atl.
95, 96; Taylor L. and T., Sec 509; Rep. 22; Edmonds v. Mounsey. 15
Wood L. and T., Sees. 488, 494; 1 Ind. App. 399; 44 N. E. Rep. 196;
Washb. Real Prop. (5th ed.) 579; Breckenridge v. Parrott. 15 Ind.
Peter v. Barnes. 16 Ind. 219; Ross App. 411; 44 N. E. Rep. 66; Tn-
V. Schneider, 30 Ind. 423. diana Natural Gas and Oil Co. v.
108 Heller v. Dailey. 28 Ind. App. Hinton (Ind.), 64 N. E. Rep. 224.
555; 63 N. E. Ron. 400; Fennel 1 v.
LEASES. 113
§96. When work must be begun.
If no time is specified within which the work of development
is to be begun, then the law steps in, as we have seen, and re-
quires it to be begun within a reasonable time, and the circum-
stances of each particular case nuist detennine what would be
a reasonable time. For if the premises are surrounded by other
oil or gas lands that are being rapidly developed, and thereby
in all probability drawing the gas and oil from under the leased
premises, the lessee must proceed with greater celerity than if
such were not the case ; and if the leased premises are only a
few acres, so that the chances of losing the oil or gas beneath
the surface would be greater than if they were of great or con-
siderable extent, then greater celerity is probably required than
in the latter instances.^"'' Usually, however, the time within
which work is to begin is fixed in the lease, in which case the
lessee has the whole time allowed within which to begin the
work of developanent, but no more.^°° Thus where thirty days
was given within which operations must be begun or the lease
be void, work begun upon the premises in good faith upon the
afternoon of the thirtieth day was held to be in time.^"^
§97. Diligence in operating leased premises after development.
Every gas or oil lease contains an implied covenant that the
lessee ^vill use reasonable diligence in operating the premises
after they have been developed. One can readily see that a
lessee, after he has developed the premises, may work them in
so leisurely a way as to be of little profit to the lessor, and that
i99Kleppner v. Lemon, 29 Pittsb. sell, 19 Ohio Cir. Ct. Rep. 266; 10
L. J. (N. S.) 346. Ohio C. D. 472; Fleming Oil and
200 Detlor v. Holland, 57 Ohio St. Gas Co. v. South Penn. Oil Co., 37
492: 49 N. E. Eep. 690; Monfort v. W. Va. 645; 17 S. E. Rep. 203; Elk
Lanyon Zinc Co. (Kan.), 72 Pac. Fork Oil and Gas Co. v. Jennings.
Rep. 784. 84 Fed. Rep. 839.
201 Henderson v. Ferrell, 183 Pa. Whether hauling lumber on the
St. 547; 41 W. N. C. 404; 38 Atl. ground the last day is a commence-
Rep. 1018; Simon v. Northwestern, ment of the work is a question for
etc., Co., 12 Ohio C. C. Rep. 170; 5 the jury. Forney v. Ward (Tex.
Ohio Cir. Dec. 456; Dufficld v. Rus- Cir. App.), 62 S. W. Rep. 108.
114 on. AND GAS.
the latter may suffer a serious damage by reason of tlie conduct
of die lessee. It will not do to say that the lessee has such an
interest in the working of the premises as it is to his advantage
to work them diligently; for his interests may be adverse ta
tliose of the lessor — as, for instance, he may take leases at a
lower rental or royalty on the adjoining premises whereby he
can drain the premises first leased. A failure, therefore, to^
work the premises diligently will subject the lessee to an action
for damages. And an express covenant to work the premises-
diligently may bring about a forfeiture of the lease, if they are
not so worked. '■*'" In the case of a coal mine, it cannot be in-
ferred, from an agreement to carry on miuing operations in a
safe, skilful and workmanlike manner that there is a covenant
to work the mine continuously.""^
§98. Agreement as to what constitutes due diligence.
The lessor and lessee may agree concerning what shall con-
stitute due diligence, in which event they will be bound by the
agreement, whether the degree of diligence constitute due dili-
gence or not. In that event a purchaser from the lessor, even
without notice of the special agreement, but with a knowledge
of the existence of the lease, will be bound by such agree-
ment.'"*
§99. Unprofitable lease.
Where the lessor is to receive a part of the profits, or even a
part of the product as a royalty, the lessee is not bound to
operate the premises at a loss, and may abandon them.'"^ And
202 Kock's Appeal, 93 Pa. St. 434; Gas Co., 146 Pa. St. 18.5; 23 Ail.
Elk Fork Oil and Gas Co. v. Jen- Rep. 164; Core v. N. Y.. etc., Co.
ningrs, 84 Fed. Rep. 839; Kleppner (W. Va.). 43 S. E. Rep. 128; Ed-
V. Lemon. 170 Pa. St. .502; 35 All. wards v. Tola Gas Co. (Kan.), 0)
Rep. 109; Rarnsdall v. Boley. 119 Pac. Rep. 350.
Fed. Rep. 191; Harris v. Ohio Oil ^oc'McIntyre v. Mclntyre Coal Co.,
Co.. 57 Ohio St. 629; ,50 N. E. Rep. 105 N, Y. 264.
1129: Gla.sgow v. Chartiers Oil Co., 204 Bartley v. Phillips, 179 Pa. St.
152 Pa. St. 48; 25 All. Rep. 232: 175; 36 Atl. Rep. 217.
Parish Fork Oil Co. v. Bridgewater 205 Bradford Oil Co. v. Blair. 113
Gas Co., 51 W. Va. 583; 42 S. E. Pa. St. 83: 4 Atl. Rep. 218: Adams
Rep. 655; McNight v. "Mfg. Natural v. Stage, 18 Pa. Super. Ct. Rep. 308.
LEASES. 115
the honest opinion of the lessee, tliat the lease cannot be operated
profitably, is entitled to more weight tlian tiie opinion of the
lessor, of experts, of the judge who tries the case, or of all com-
bined.'"*^ If no rent has been agreed upon, to be paid the lessor
if ojjerations are not carried on, under an agreement giving the
lessee (so called) all right, title and interest in the oil, such
lessee is liable only for nominal damages.'"^ If the lease sets
forth the number of wells that must be drilled, the lessee is not
required to drill more than the number in order to make the
lease profitable. ^°^ He is not bound to put down a well that
would be unprofitable, unless he has expressly agreed to do so.""®
§100. Lessor cannot impair value of lease by drilling wells on
his own land.
Ag a general proposition, a lessor cannot drill wells on his
■OAvn lands so close to the premises he has demised as to seriously
impair the value of the latter, by extracting the oil or gas
from them. Not infrequently a protecting territory of a cer-
tain width surrounding the leased premises, where it is wholly
or in part bounded by the lessor's lands, is provided for in
the lease, within which neither the lessor nor the lessee may
operate. A rather anomalous case on this question arose in
Pennsylvania. In that instance a lease of less than four acres
was taken, with " a protection of ten rods on the east side "
of the lot " and eight rods on the north side." This " protec-
tion," so far as the part in dispute was concerned, made a
rectangle on the northeast corner of the lease eighty rods square.
206 Young V. Forest Oil Co., 194 20s Colgan v. Forest Oil Co., 194
Pa. St. 243; 45 All. Rep. 121; 30 Pa. St. 234; 45 All. Rep. 119;
Pittsb. L. J. (N. S.), 221; Glasgow 30 Pittsb. L. J. (N. S.) 68; 75 Am.
V. Chartiers Oil Co., 152 Pa. St. 48; St. Rep. 695; Stoddard v. Emery,
■25 Atl. Rep. 232; affirming 23 128 Pa. St. 436; 24 W. N. C. 566;
Pittsb. L. J. (N. S.) 146; Snod- 18 Atl. Rep. 339.
grass V. South Pa. Oil Co., 47 W. 209 Adams v. Stage, 18 Pa. Super.
Va. 509; 35 S. E. Rep. 820; Low- Ct. Rep. 308; Venture Oil Co. v.
ther Oil Co. v. Miller- Sibley Oil Co. Fretts, 152 Pa. St. 451; 25 Atl. Rep.
(W. Va.), 44 S. E. Rep. 433. 732; Steelsmith v. Gartlan, 45 \V.
207 Chamberlain v. Parker, 40 N. Va. 27; 29 S. E. Rep. 978; 44 L. R.
Y. 569. A. 107.
116 OIL AND GAS.
Ill Strict sense, this left a square of eight by ten rods between
the east and north "■ protections " ; and in this square the lessee
sought to drill a well. This the court held he could not do, and
in discussing the question used the following language:
" If tlie stipulation in the lease, on which the right to the
injunction depends, is to be strictly construed according to the
literal meaning of the language, the defendant's well cannot be
regarded as within the protection for wdiich it provides, and if
so, the plaintiffs have no legal or equitable right to the relief
asked for in the bill. But the agreement must be construed
with reference to the subject matter, and so as to effectuate, if
possible, the purpose for which it was intended. The lease was
' for the sole and only purpose of mining and excavating for
petroleum, coal, rock or carbon oil ' in the tract described
therein. The parties probably knew that, if oil was found in
the demised premises, a well bored within a short distance
would draw off more or less of the oil, and that for the same
reason a well on the border or side of the tract would draw part
of its supply from the adjoining ground. The object of the
agreement was, therefore, twofold : To prevent the lessor or
any one under him from mining or boring wells within eight
rods of the north and ten rods of the east line of the tract
described in the lease and to give the lessees more ground for
the, supply of any wells they might drill or bore on the demised
premises in proximity to these lines.' Is it then a reasonable
sup]X)sition that the parties intended to leave a gap at the
corner where these lines intersect which would render tlie
' protection ' valueless and defeat the purpose for which it was
intended ? The master and the court below were of the opinion
that it was the intention of the parties to secure the same pro-
tection to the corner as to the sides of the demised tract, and
that the agreement should be so construed as to carry out their
intention. This, as it seems to us, is its reasonable inter])rota-
tion ; and, if so, the defendants had no riglit to construct build-
ings, machinery, and- to put down a well within a few feet of
the corner of the plaintiff's leasehold, and pump therefrom, as
they did, large quantities of nil. Xor can there be a doubt
that the plaintiffs have a sufficient title to enable them to obtain
LEASES. IIT
redress by injunction of the wrong done by the defendants.
The trespass of which they complain is of a permanent nature,
and, under the facts found by the master, destructive of their
leaseliold. It is clear, then, that under the equitable powers
conferred by the statute, tlie court below had jurisdiction for
its prevention or restraint." ^^"
Where the lease provided that no wells should be drilled
within three hundred yards of a certain building, and there
was a reservation of the surface for tillage; it was held that
the land witliin this three hundred yards could not be leased by
the o^^^ler to a third party to drill wells upon ; for the lessee
had a right to draw all the oil from beneath its surface that he
could by wells sunk in that portion of the tract, of which the
three hundred yards was a part, where he had a right to drill
them.'"
j§101. Lessee draining premises by operations on adjoining ter-
ritory.
A lessee must act in good faith in the operation of the leased
premises. He cannot under the guise of ownership of the ad-
joining premises drain the lands he has leased by sinking wells
on sudi premises, under the claim of a right to do so, and not
put down a sufficient number of wells on the leased territory as
will protect it from the wells ojierated on such adjoining terri-
tory, when the lessor, at least, receives his compensation by a
royalty on or a part of the oil produced, or by a rental of so
much per producing well. Of course, if the lessor receives a
lump sum per annum for the ground, or so much per acre per
210 Allison's Appeal. 77 Pa. St. simply push the gas in the mains
221. to the consumer or tlie company's
211 Westmoreland, etc., Co. v. De- reservoir, and not cause the gas to
Witt, 130 Pa. St. 235; 18 Atl. Rep. flow from the well in greater quan-
724; 29 Amer. L. Reg. 93; 5 L. R. tities than it would if the well were
A. 731. left open and the gas permitted
The use of pumps, to pump the to escape, unobstructed, into the at-
gas to a distant city, does not vio- mosphere. Richmond, etc.. Gas Co.
late the rights of land proprietors v. Enterprise, etc.. Gas Co. (Ind.
whose lands adjoin the leased prop- App.), 66 N. E. Rep. 782.
erty, at least so long as the pumps
118 OIL AND GAS.
annum, then it is immaterial to him whether his premises are
developed or not; and the lessee may conduct oi)erations on the
adjoining territory, even tliough he drain the leased premises
entirely of their oil and gas. Where an operator obtained
leases of two adjoining farms, and placed a well on one of
them, so close to the line between them as to drain botli farms
alike, and failed to sink a well on the other farm to offset the
well he had already drilled on the first farm, it was held that
tlie owner of such other farm was entitled to damages ; and in
estimating the damages the oil actually extracted will be con-
sidered in the same way as where an owner wrongfully mingles
and confuses his ovm goods with another's."^' And if the
lessee refuse to develop such other farm, within a reasonable
time, the court may decree a forfeiture of the lease of it, or of
so much of it as remains undeveloped."^^
^102. Drilling well near boundary line.
By drilling a well close to the boundary line of his land tlie
owner may not only drain the oil or gas from his own territory
but from that of his adjoining neighbor. This is easily per-
ceived in instances of drilling wells on ordinary town lots, which
are often only thirty or forty feet wide and three or four times
as long. It is quite obvious in such an instance one well may
drain the oil or gas from under several or even many lots. And
yet, who has the right to say the o\\Tier of a lot may not put
down a well on it, for fear, or from the fact, he may get the oil
or gas, or a part of it, under his neighbor's lot? His neighbor
has the |>ower to protect his interests, by sinking a well on his
own lot; and if he does not see fit to do so, he has no right to
prevent another and adjoining lot owner from developing his
o^\Tl territory. He cannot play, as it were, tlie "dog in the
manger " policy. Of course, the same is true of larger tracts,
— tracts of even hundreds of acres. One land owner may not
deprive another and adjoining one of the right to drill a well
2i2Kleppner v. Lemon, 29 Pittsb. 502; 35 All. Rep. 109. See Henne
L. J. 346. V. South. Penn. Oil Co. (W. Va.),
21.-! Klpppner v. Ter^nn ITH Pi. S^ 43 S E. Rep. 147.
LEASES. ^^^
on hi. o^^al land wherever he wills. If his neighbor put a
well within a few feet of his boundary line, then he may put a
well innnediately opposite and just within the line on his ow
land althouoh he must necessarily draw oil or gas from his
neioiibor's soil. This is his protraction. =" The adjoining land
ower may even encrease the flow of gas on his o^^m premises
by shooting his wells, although it will have the effect to drtiw
gas from his neighbor's adjoining territory.^^^^ But if a man
through mere malice, in order to injure his neighbor's gas well,
sink a well on his own land, and it has that effect, then he will
be liable to an action for damages brought against him by the
injured pcrson.^^" A statute that prohibits drilling within a
certain distance of the boundary line is constitutional.'^' ' Land
owners mav agree that they will not drill within a certani dis-
tance of the boundary line between them ; and for a violation ot
the agreement, a court of equity will enjoin the one m fau t.
The mutual protection is a sufficient consideration to uphold the
contract."^
§103. Injunction.— Quieting title.
Injunction lies to protect the rights of a lessee in the leased
territory. He may enjoin any one sinking a well m the^n,
even the lessor, and is not compelled tx> resort to an action lor
.i.T'.nv V Ohio Oil Co., 57 Ohio not lie to protect his interests. Eri-
St an 40 X T Eep! 399; 39 L. R. kino v. Forest Oil Co., 80 Fed. Rep.
Tn 'vJN^O^^Iv'l M.'54; 24S.E.Lp.G08;32L.R.A.800.
^1 !r. Co V Tyner. 131 Ind. -« Ware v. Lan,n.ade. 9 Oh.o C.
r-:r 31 N E Hep-. I9T16 L. R. A. Ct. Rep. 85; 6 Ohio C. Dec. 43; 2
' XT- i i-,v,ri atn das. Co V. Ohio Dec. 116.
nUiu" '"0 P St M5 8 Ul. Pu„,ping .a, .tter it ha, read.ea
r -^4 r, ,;Jr\ P. ?. !)3 ; 5 the ga, main,, where the flow from
Tl f-„ Ha'uev m.«ler,157 the well is not rendered greater
Pa%f ■ 32 ; "'a 1 Rep. ^U; 22 than it would he if the we,, wa, ,e.t
Pa. ^t^-4 -' ^^^^^ .g ^^^ ^^jpj^ ^ violation of the
^' ^'rC' . Pn^ Cn V TA-ner su- rights of a land osvner whose land
.^5 People s Ga. Co. ^ - T, ner. ^ g ^_^^ ^^^^^^ ^^^^^^ ^^ ^^ .^^ ^^^.^^^ ^.^^
^"LDictu. in Hague v. Wheeler. to an i-i-tion^ or ^ cla^age.
Richmond, etc., Gas Lo. \. Jivntfi
'•'7. „nd owner have a,np,e ren,- pri,e. etc.. Ga^ Co. „nd. .Vpp.,. 6,i
e,lv otherwise, a,, injon.tin,, will X. E. Kep. ,S2.
120 OIL AND GAS.
damages.^^'' A person holding a valid executory lease, executed
by tlie land owner or by several of a number of co-tenants, has
such an interest, although inchoate in the land, as will enable
him to maintain an injunction to prevent a wrong-doer fr(im
committing waste by the extraction of oil and gas ; and it makes
no difference tliat he has not yet perfected his own right to ex-
plore. ^'^ A lessee in possession may maintain a suit in equity
against persons claiming under leases from the lessor to other
persons, and may have their leases declared a cloud ujDon his
title.^'^ A preliminary injunction will be awarded against a
lessor where he has made a re-entry under a claim of forfeiture
and tlie claim is disputed on every ground on which he puts
it.^^" The court, in such an instance will not only enjoin the
lessor, but it will compel him to restore the premises to the
condition he found them in when he re-entered upon them, even
to the extent of compelling him to restore gas pipe lines he has
severed, until hearing. '''^ But the court should not go too far
in the preliminary injunction ; it being sufficient, as a rule, to
preserve the present condition until final hearing, unless gas or
oil in considerable quantities will be lost if further steps be not
taken.""* The OA\mer of the land or the lessee may enjoin a
stranger who is threatening to put down an oil or gas well.
" An action for damages would have been inadequate, since the
damages could not be measured. . . . How much the flow
2i9Duffield V. Hue, 136 Pa. St. Erskine v. Forest Oil Co., 80 Fed.
602; 20 Atl. Rep. 526; Bettman v. Rep. 583.
Harness, 42 W. Va. 443 ; 26 S. E. 222 Poterie Gas Co. v. Poterie, 153
Rep. 271; 36 L. R. A. 566; Citizens' Pa. St. 10; 25 Atl. Rep. 1107; Duf-
Natural Gas Co. v. Shenango, etc., field v. Rosenzweig, 144 Pa. St. 520 ;
Co., 138 Pa. St. 22; 20 Atl. Rep. 23 Atl. Rep. 4.
947. 223 Poterie Gas Co. v. Poterie, 179
220 Trees v. Eclipse Oil Co.. 47 W. Pa. St. 68; 36 Atl. Rep. 232; Bus-
Va. 107; 34 S. E. Rep. 933; Allison's kirk v. King, 72 Fed. Rep. 22. See
Appeal, 77 Pa. St. 221 ; Natural Gas Black Lick Co. v. Saltsburg Gas.
Co. V. Philadelphia Co., 158 Pa. St. Co., 139 Pa. St. 448; 21 Atl. Rep.
317; 27 Atl. Rep. 951; Allegheny 432.
Oil Co. V. Snyder. 106 Fed. Rep. 224 Bettman v. Harness. 42 W.
764; 45 C. C. A. 604 (by statute). Va. 433; 26 S. E. Rep. 271; 36 L.
221 Elk Fork Oil and Gas Co. v. R. A. 566.
Jennings, 84 Fed. Rep. 839. See
LEASES. 121
of appellant's well would have been diminished could not be
determined; the damages could not be measured in money.'"''
§104. Damages.
A failure to develop tlie leased premises may render the
lessee liable to the lessor to an action for the recovery of dam-
ages; and usually the lessee cannot set up as a defense that it
was purely optional with him to develop such premises. Thus
where a lease required the payment of a royalty and a sum of
money, operations to begin and a well to be completed within
fixed periods of time, containing a clause that on failure to com-
ply the lessee should pay a fixed sum per annum during such
delay, and another clause tliat a failure to comply with or make
the annual payment within the time mentioned the lease should
be void ; it was held that a failure to both commence operations
and to make the payments within the agreed time did not render
the lease null and void, but it only became such from the expira-
tion of the time within which the payment was to be made, and
therefore the lessee was liable for damages sustained by his
breach of the covenants."^ But where the lease was conditioned
to be void unless the lessee should do something in the way of
development by putting do^vn a well within a certain time, or
pay so much money per month, yet contained no covenant to do
either ; it was held that such lessee was not liable in damages
for a failure to perform the conditions named.''" A failure to
sink a sufiicient number of wells to develop the territory will
render tlie lessee liable to an action for damages."'^ Where
only a part of the land is developed, the implied covenant to
develop it all is no gi'ound of forfeiture, but the lessee is liable
for damages for a failure to comply with the covenant."^
225 Indianapolis Natural Gas Co. 152 Pa. St. 48; 31 W. X. C. 207; 25
V. Kibbey, 135 Ind. 357 ; 35 N. E. Atl. Rep. 232, distinguishing Ray v.
Rep. 392. See Thomas v. Marble, Gas Co.. 138 Pa. St. 576; 20 Atl.
etc., Co., 58 Fed. Rep. 485. Rep. 1065.
226 Galey v. Kellerraan, 123 Pa. 22s Harness v. Eastern Oil Co., 49
St. 491; 23 W. N. C. 139; 16 Atl. ^Y. Va. 232; 38 S. E. Rep. 662.
Rep 474; Kleppner v. Lemon, 29 220 Harris v. Ohio Coal Co., 57
Pittsb. L. J. (N. S.) 346. Ohio St. 118; 48 X. E. Rep. 502.
227 Glasgow V. Chartiers Gas Co.,
122 OIL AND GAS.
§105. Damages for failure to keep covenant.
Instead of declaring a forfeiture, the lessor may elect to
bring an action for a failure to keep or perform the covenant
broken; and he may recover either on an express or an implied
covenant. For the breach of an implied covenant to reasonably
operate a mine, or oil or gas lease he has a cause of action. If
there has been a breach of an express covenant in part only he
cannot declare a forfeiture, where tlie forfeiture is for a breach
of the entire covenant. His remedy in such an instance is an
action for damages."^" If the lease provide the amount of
recovery, that will be the measure of damages; and the lessee
cannot insist that the amount of damages is more in amount
than the value of the lease.^^^ Where the lease was to the effect
that a well should be put down to a certain depth by a certain
time, but no rent was reserved, no term of demise was stated,
tliough a right of entry for condition broken was reserved ; and
the lessee failed to put do-\vn the well, it was held that the
lessor's damages were only nominal."^- But where the royalty
reserved was one-eighth of the oil produced, and tJie lease con-
tained a covenant, " to continue, with due diligence and without
delay, to prosecute the business to success or abandonment, and
if successful, to prosecute the same without interruption for
the common benefit of the parties " ; it was held that this re-
quired the lessee to prosecute the business to an extent, consider-
ing the knowledge, skill and appliances available at the time,
it could reasonably be done and leave the lessee a profit. In
determining the measure of the damages for a failure to work
the leased premises, the court laid down the following rule:
From the amount of oil the lessor ought to have received, take
the amount he actually received, and take the value of this dif-
ference at the time it should have been delivered to him. From
230 Harris v. Ohio Coal Co., 57 662; Sharp v. Behr, 117 Fed. Rep.
Ohio St. 118; 48 N. E. Rep. 502; 864.
Blair v. Peck, 1 Penny (Pa.), 247; 231 Qaley v. Kellerman, 123 Pa.
Janes v. Emery Oil Co., 1 Penny St. 491; 16 Atl. Rep. 474.
(Pa.) 242; Harness v. Eastern Oil 232 Chamberlin v. Parker, 45 N.
Co., 49 W. Va. 232; 38 S. E. Rep. Y. 569.
LEASES.
12a
this amount deduct the cost of producing what ought to have
hcen produced at the time under the circumstances with the ap-
pliances then known, and add to this remainder interest on it
from the time when the oil should have been produced to the
time of triaL"^
§106. Damages for neglect to develop or operate leased premises.
The lessor has a right of action against the lessee for failure
to develop the leased premises, as he had contracted to do ; and
the measure of damages is what the lessor was to receive under
the contract,— the royalty, as a rule,— where the lessee leaves
it in such condition, in case of a test well, that it cannot be tested,
and the failure to test it is not unavoidable, or the lessee left
it in a condition tliat it can be tested and the lessor does not
know if' Where a party purdiased oil lands, agreeing to
bore for oil and within a year complete a well, and if oil were
found in paying quantities, to drill other wells, and deliver as
royalty to tlie vendor a certain amount realized from the sale
of oil and gas produced from all the wells, it was held that the
remedy of the vendor for a failure on the part of the purchaser
to keep the agreement, was an action for damages and not by
way of forfeiture.''® In a case in the Federal Court, the
following langiiage was used : " But it is contended by the
appellee that the clause providing a forfeit of fifty dollars for
failure to bore the well within ninety days provides full
compensation for failure to perform the condition. As a matter
of fact, tlie fifty dollars was not paid or legally tendered ; but,
inasmuch as the grantor had declared a purpose not to receive
the forfeit money, it will be treated as if it had been tendered.
The question whether a sum of money stipulated to be paid is a
penalty or liquidated damages is sometimes difficult of deter-
mination, tliere being no criterion of universal application. It
233 Bradford Oil Co. v. Blair. 113 etc., Co. (W. Va.), 43 S. E. Rep.
Pa. St. 83; 4 Atl. Rep. 218. 128.
235 McClay v. Western Pennsylva- 236 Amnions v. South Penn. Oil
nia Gas Co., 201 Pa. St. 197; 50 Co.. 47 W. Va. 610; 35 S. E. Rep.
Atl. Rep. 978. See Sharp v. Behr, 1004.
117 Fed. Rep. 864; Core v. N. Y.,
124 OH. AND GAS.
depends iijx>n a construction of tlie whole instrument, the inten-
tion of the parties, the nature of tlie act to be performed, and
the consequences which would naturally flow from its non-per-
formance. In many of the cases where oil leases have come be-
fore the courts, the doing of a certain thing, or the payment of
rental in lieu thereof, is stipulated in the contract in a way
that justifies tJie conclusion that the parties have provided
exact and just compensation by way of liquidated damages for
failure of performance in contracts, where parties stipulated in
the alternative, and are free to those. But where consequences
likely to follow non-performance are not measurably by any
exact pecuniary standard, and the probable damage is out of all
proportion to the amount agreed to be paid, this sum should be
considered a penalty ; and such we hold it to be in this case,
where the sum of fifty dollars is stated to be a forfeiture. It
is in the nature of a security for the performance, and cannot
be held to be liquidated damages from non-perfonnance." ^"
§107. Damages for neglect to operate. — Res judicata.
If a lessor bring suit to recover arrears of a portion of the
oil due him as royalty, a judgment of recovery will bar his
claim in a subsequent suit for damages for the lessee's failure
to operate the premises."^®
§108. Damages for taking oil or gas.
If the lessee's premises be invaded, and oil or gas extracted
from them by sinking wells or in any other manner, he may
recover damages from the wrong doer.-^" If the trespasser
acted in good faith, the measure of damages when the suit is by
the owner of the land and there is no lease involved, is the value
2" Huggins V. Daley, 99 Fed. Rep. 560 ; and Steelsmith v. Gartlan, 45
G06; 40 C. C. A. 12; 48 L. R. A. W. Va. 27; 29 S. E. Rep. 978; 44
320. The court cited French v. Ma- L. R. A. 107.
cale, 2 Dru. and W. 274; Dooley v. 23s Hill v. Joy, 149 Pa. St. 243;
Watson, 1 Gray 414; Foster v. Elk 24 Atl. Rep. 293.
Fork Oil and Gas Co., 90 Fed. Rep. 239 Diiffield v. Rosenzweig, 144 Pa.
178; 61 U. S. App'. 576; 32 C. C. A. St. 520; 23 Atl. Rep. 4.
I.EASES, 125
of tlie oil (or gas) as it lay in the earth, when the value of
the land has not been lessened by his operations or has been
increased by valuable erections placed upon it."*" If other
wells be wrongfully sunk on the leased premises, the lessee may
recover the difference between the value of the premises to him
without the wells and their value to him with such wells.""
§109. Boundaries. — Location of wells.
As a general rule the lessee has the right to take all the oil
and gas under the leased premises. But usually he is not
entitled to the possession of the entire surface of the leased
tract ; for the lease provides, generally, that his possession shall
be limited to a certain portion of the leased tract, though he is
entitled to all the oil or gas under the surface of the entire tract,
if he can draw^ it out by means of wells sunk in those portions
of the tract designated for his use. A lease of eighty acres,
" reserving sixty acres around the buildings on said premises,"
the boundaries to be designated by the lessor, is not so indefinite
as to defeat an action for the rent due under it, the lessor being
ready at all times to locate tlie boundaries."*" The lessor having
failed to locate the boundaries, it was held that he had waived
his right to declare a forfeiture of the lease on the ground that
the lessee had not begim operations within the time designated.
Adjoining land o^\Tiers may agree that they will not drill wells
wnthin a certain distance of the boundary lines of their respec-
tive tracts ; and the promise of the one will be a sufficient consid-
eration for the promise of the other, for the reason that the
agreement is for the protection of their respective lands. This
agreement will be protected by an injunction."*^ A law pro-
hibiting land owners taking solid minerals within a named dis-
tance from their boundary lines is valid, being only a restriction
24oi>yke V. National Transit Co., Spaugh, 17 Ind. App. 683; 46 N. E.
22 N. Y. App. Div. 360; 49 N. Y. Rep. 691.
Supp. 180. 243 Ware v. Langmade, 9 Ohio C.
24iDuffield V. Rosenzweig, 144 Pa. C. Kep. 85; 6 Ohio Cir. Dec. 43; 2
St. 520; 23 Atl. Rep. 4. Ohio Dec. 116.
242 Indianapolis, etc., Co. v.
126 OIL AND GAS.
on the land owners for tlieir common benefit.'** In a snit to
settle and adjust boundary lines of a lease and tract of land^
all persons having an interest in the controversy should be made
parties to the action."*^ If an oil lease give the lessor the right
to select one acre on which a test well is to be drilled, and ho
select it, and the lessee drill upon it, such lessor cannot make a
second selection and insist that the lessee put down another
well.-**'
§110. Selection of site.
Xot infrequently the lessor, or the lessor and lessee jointly,
is to select the site for the well. If the lessor is to select it, and
the lessee assents to the selection, the former will be bound."*^
The same is true where the lessor is to select parts of a large
tract leased upon which operations may be carried on, according
to the provisions of the lease.'*^ If the lessor is to make the
selection with the lessee of the tract out of a larger tract leased,
but he has not done so, he may recover rent for the demised
premises, if he allege and prove that he has always been ready to
make it, and the neglect of the lessee to join with him in making
the selection will not defeat the action."*^ If a dispute arise
as to the location of the well, whether on the lands or not, the
jury must decide the question as one of fact.'^*'
244 Maple V. John, 42 W. Va. 30; Spaugh, supra. See Balfour v. Rus-
24 S. E. Rep. 608; 32 L. R. A. 800. sell, 167 Pa. St. 287; 31 Atl. Rep.
245 Steelsmith v. Fisher Oil Co., 570; Duffield v. Hue, 136 Pa. St.
47 W. Va. 391; 35 S. E. Rep. 15; 602; 20 Atl. Rep. C26.
Moore v. Jennings, 47 W. Va. 181 ; 250 Hamilton v. Pittock, 158 Pa.
34 S. E. Rep. 793. St. 457; 27 Atl. Rep. 1079.
246 Stahl V. Van Vleck, 53 Ohio A lessee agreed, in consideration
St. 136; 41 N. E. Rep. 35. See that the lessor relinquish all money
Meeker v. Browning, 9 Ohio C. D. stipulated for, for the location of
108; 17 Ohio C. C. 548. additional wells, he would drill ad-
247 Stahl V. Van Vleck, 53 Ohio ditional wells within a time stated.
St. 136; 41 N. E. Rep. 35. This was held to be an executed re-
248 Stahl V. Van Vleck, supra; In- lease of the location moneys under
dianapolis, etc.. Gas Co. v. Spaugh, the former contract, and not merely
17 Ind. App. 683; 46 N. E. Rep. a conditional one, which remained
691; Diamond Plate Glass Co. v. executory until the new wells were
Tennell, 22 Ind. App. 132; 52 N. E. drilled within the time limited.
Rep. 168. Meeker v. Browning. 9 Ohio C. D.
^*9 Indianapolis, etc.. Gas Co. v. 108; 17 Ohio C. C. Dee. 548.
"LEASES. 127
§111. Number of wells.
If the number of wells to be drilled are specified in the lease,
there is no room for judicial interpretation of the duty of the
lessee in that respect. If the number of producing wells are
named, then that number must be drilled, unless it be clearly
shown that the numl)er fixed cannot be obtained on the premises,
bj showing' that some of those drilled were dry wells, and tluit
to drill others would not be a benefit to the lessor. If the num-
ber of wells is not specified, then a number sufficient to develop
the ])remises must be drilled ; '^^ but the court will not under-
take to direct how the lessee shall work the premises, or how
many wells shall be sunk; and the lessor cannot claim a for-
feiture simply because tlie lessee is not sufficiently active in
developing the property.^^" If the lessee has agreed to sink a
certain number of wells, he cannot, after sinking a part of the
number, successfully claim that it would be useless to sink the
remainder, on the gTOund that the sinking of them would prob-
ably reduce the flow of the oil or gas in the wells already sunk,
and his profits thereby be reduced and the wells probably ren-
dered valueless.'"^ A lease of fifty-three acres in 1892 provided
that as many wells should be drilled " as may be reasonably
necessary to secure the oil for the common advantage of both
the lessor and lessee." Between 1892 and 1896 the lessee
drilled four wells on the west side of the leased premises, which
were paying wells, and one on the east, which did not pay. The
distance from the eastern well to the western well was from one
thousand to twelve hundred feet. Eight hundred feet on the
north and east of the leased premises wells had been drilled
251 Kleppner v. Lemon, 176 Pa. Ohio Oil Co. v. Kelley, 9 Ohio C. C.
St. 502; 38 W. N. C. 388; 35 Ail. Rep. 511; 6 Ohio Cir. Dec. 470; 40
Rep. 109; 27 Pittsb. Leg. J. (N. S.) Wkly. L. Bull. 338; 3 Ohio Dec. 186.
21 ; Aye v. Philadelphia Co., 193 Pa. See Pennsylvania case.
St. 451; 44 Atl. Rep. 555; Kleppner 253 Young v. Equitable Gas Co.,
V. Lemon, 29 Pittsb. L. J. (N. S.) 5. Pa. Super. Ct. Rep. 232; 28 Pittsb.
346; Gadbury v. Ohio, etc., Co. L. J. (N. S.) 75; 41 W. N. C. 24;
{Ind.), 67 N. E. Rep. 259. Ahrns v. Chartiers Valley Gas Co.,
252 Baldwin v. Ohio Oil Co., 13 Ohio 188 Pa. St. 249; 41 Atl. Rep. 739.
Cir. Ct. Rep. 519; 7 Ohio Dec. .50;
128 OIL AND GAS.
whicli were producing in paying quantities. There was proof
that a well would draw oil from the sand a distance of live hun-
dred feet. x\n action was brought to have the lease declared
forfeited, on the ground that the lessee refused to drill another
well on the eastern side of the premises. The court required
the lessee to file with it a stipulation to commence a well on the
eastern portion of the premises within twenty days, or have the-
lease declared forfeited."^* But the the case on appeal was re-
versed, on the ground that the lessee cannot be compelled, under
an implied covenant to develop the premises, to jiut down a
well on the other half, without clearly showing that he is not
acting in good faith on his business judgment, but is acting
fraudulently, with the intent to obtain a dishonest advantage."^''
Where the agreement was for two test wells, and the first one
drilled demonstrated that the pTemises were unproductive, it was
held that the lessee w^as not bound to drill the second well or
pay the cash rental provided for in the lease ; for as the lands
were unproductive, there was nothing in the contract to compel
him to drill a second well or pay the rent."^'' If the lessee does
not drill the requisite number of wells, so as to fully develop
the land, where the number of wells is not designated in the
lease, the lessor has his action against him for damages.'^'
But if the lease provides the number of wells that shall be
drilled, there is no implication that more than the number speci-
fied shall be drilled where it should turn out that not enoudi
was provided for to develop the entire premises. '^^ In a Penn-
sylvania case the following language was used with reference
to the number of wells that must be drilled : " It is an implied
condition of every lease of land for the production of oil there-
254 Young V. Vandergrift, 30 119; reversing 30 Pittsb. Leg. (N.
Pittsb. Leg. J. (N. S.) 39; Colgan S.) 213.
V. Forest Oil Co., 30 Pittsb. Leg. J. 25c Kenton Gas, etc., Co. v. Or-
(N. S.) 68 (almost identical with wick, 21 Ohio Cir. Ct. Rep. 274; 11
preceding case) ; Kleppner v. Ohio C. D. 786. See Sec. 112.
Lemon, supra; Ohio Oil Co. v. Har- -'>"! Harness v. Eastern Oil Co., 49
ris, 1 Ohio N. P. 132; 1 Ohio Dec. W. Va. 232; 38 fe. E. Rep. 662.
157. 259 Stoddard v. Emery, 128 Pa. St.
255 Colgan V. Forest Oil Co., 194 436; 18 Atl. Rep. 339; 24 VV. N. C.
Pa. St. 243; 75 Am. St. Rep. 695; 566; Harris v. Ohio Coal Co., 57
30 Pittsb. Leg. J. 221; 45 Atl. Rep. Ohio St. 118; 48 N. E. Rep. 502.
LEASES. 129
from that wlien the existence of oil in paying quantities is
made apparent the lessee shall put dowm as many wells as may
be reasonably necessary to secure the oil for the common ad-
vantage of both lessor and lessee. In determining when and
where such wells shall be located, regard must be had to the
operation on adjoining lands; and to the well kno^vn fact that
a well will drain a territory of much larger extent when the
sand-rock in which the oil or gas is found is of coarse and loose
texture than when it is of fine gi'ain and compact character.
Whatever ordinary knowledge and care would dictate as the
proper thing to be done for the interests of both lessor and les-
see under any given circumstances is that which the law re-
quires to be done as an implied stipulation of the contract." "®°
§112. Number of wells. — Protecting lines.
Elsewhere has been discussed the numl>er of wells tJie lessee
is required to drill. "°^ Of course, if the number is specified,
that determines the rights of the parties in this connection.'*'^
But if the number is not specified, then the lessee must drill
and operate enough as is ordinarily required for the production
of the oil contained in such lands, and afford ordinary proection
to the lines.-"^ If a single well demonstrates the fact that tliere
is no oil, in case of an oil lease, or no gas, in case of a gas lease,
" the contract is at an end as soon as such first well is abandoned
as unsuccessful." ""^^
26oKleppner v. Lemon, supra. and Parish Fork Oil Co. v. Bridge-
Xeglect to use diligence and good water Gas Co.. 51 W. Va. 583; 42
faith in the development of the S. E. Rep. 655.
leased premises gives a cause of 263 Harris v. Ohio Oil Co., 57
action to the lessor. Kleppner v. Ohio St. 118; 48 N. E. Rep. 502;
Lemon, 29 Pittsb. L.J. (N. S.) 346; Kleppner v. Lemon, 176 Pa. St.
affirmed 198 Pa. St. 430; 48 Atl. 502; 35 Atl. Rep. 109; Ohio Oil Co.
Rep. 483; Gadbury v. Ohio, etc., Gas v. Kelly, 9 Ohio C. Ct. Rep. 511; 6
Co. (Ind.), 67 N. E. Rep. 259. Ohio Cir. Ct. Dec. 470; 40 Wkly.
261 See Index. L. Bvill. 338; 3 Ohio Dec. 186.
262Colgan V. Forest Oil Co.. 194 264 Venture Oil Co. v. Fretts. 152
Pa. St. 234; 45 Atl. Rep. 119; 30 Pa. St. 451; 25 Atl. Rep. 732;
Pittsb. L. J. (N. S.) 213: 75 Am. Steelsmith v. Gartlan, 45 W. Va.
St. Rep. 695. See Stahl v. Van 27; 29 S. E. Rep. 978; 44 L. R. A.
Vleck, 53 Ohio St. 136; 41 N. E. 107.
Rep. 35; 33 \Ykly. L. Bull. 335;
130 OIL AND GAS.
§113. Test Wells. — Excuse for not drilling.
The name " test well " is practically its own definition, or at
least suggests its meaning, it is a well pnt down on the leased
premises to determine whether or not oil or gas exists thereon,
and usually whether it exists in paying quantities.-''^ Not in-
frequently a lease provides that a test well shall be drilled
within a certain length of time after it is granted ; and when
such requirement is inserted it must he complied with, or the
lessee will forfeit his right to operate on the premises. In
leases for mining solid minerals it is permissible to show as a
defense in an action to recover damages for not opening a mine,
that there is no mineral beneath the surface, and the lessee may
avail himself of that defense and show that such is the fact, he
having the burden to show there is no mineral. ■*"' But in the
case of a gas or oil lease a defense that there is no gas or oil
beneath the surface cannot be shown in any other way than by
sinking a well, unless, of course, the plaintiff admits that such
is tlie case, thereby waiving his right to insist upon the well as
a test. It cannot be shown that the adjacent territory, or even
the entire adjacent surrounding territory has been drilled for
gas or oil, in the most thorough manner and none found. ]n a
Pennsylvania case the following language was used :
. " The averment in the affidavit of defense that it had been
' ascertained by methods practiced and approved by men skilled
in the business, that neither carbon oil nor gas existed in thi^
land leased,' and the view, based thereon, urged with so much
force by the distinguished counsel, that it must now be ac-
cepted as a demonstration of science that putting down a well
on land shown by exploration of neighboring territory to be
dry, is a useless expense and damage, and that parties in con-
tracting on the subject must be considered to have had this fact
in mind, would be a strong argument to the jury, if the case
was one for them, that the plaintiff had suffered no actual dani-
2C5 Petroleum Co. v. Coal, etc., was held that the lessee is not lin-
Cc, 89 Tenn. 381; 18 S. W. Rep. 65. ble unless there was a reasonable
266 Cook V. Andrews, 36 Ohio St. probability that the lessor wotild
174. be benefited by drilling the well.
In Bell V. Truit, 9 Bush. 257, it
LEASES. 131
ages by the defendant's default. But the conclusive answer in
the present case is tliat the parties have clearly stipulated for
the mode in which the trial shall be made, and it is to be by a
well on this land. There is no room for science, any more
than there is for a jury, to say that it will be of no use to do it ;
the parties have explicitly agreed on the exact thing to be done,
and the exact amount to be paid for failure to do it. The
scientific nature of mining in the present day, and the certainty
of scientific conclusions from exploration of neighboring terri-
tory, may be fully recognized and admitted, but nevertheless,
liopeful parties may desire an actual test, and if we are to take
notice as counsel suggest, of facts in the history of oil mining
we know that some of the most extraordinary and profitable
productions have been the result of ' wuld-catting ' in unpromis-
ing fields. But it is enough for us that the parties have con-
tracted for one thing to be done and the damages for not doing
it. Under such circumstances it is never open to tlie covenantor
to say that the thing would be of no value to the covenantee if
it were done." ""^
Where the agreement was that a well should be completed
witliin a year, and if not, an annual rental paid ; if the rental
was not paid, the lease to be null and void ; and a second well
to be completed within two years, and on failure to drill it, a
certain sum to be paid or the lease forfeited, it was held to be
no defense, in an action to recover their several sums that there
was no oil or gas on the leased premise, and for that reason the
lease became void and of no effect. The basis for the decision
was that the lessor and lessee had fixed upon a test, which was.
the drilling of two wells ; and that no other could be substituted
by the lessee without the lessor's consent. It was admitted,
however, that the lease could have been so drawn as to admit
the defense attempted to be set up by the lessee, namely, by
showing otherwise than by test wells that there was no oil or
gas in the leased premises."*'^ If the lease provides for a test
267 Cochran v. Pew, 159 Pa. St. 268 Gibson v. Oliver, 158 Pa. St.
184; 28 Atl. Pep. 219. See Springer 277; 27 Atl. Rep. 961; Johnston,
V. Citizens' National Gas Co., 145 etc., R. R. Co. v. Egbert, 152 Pa.
Pa. St. 430; 22 Atl. Rep. 986. St. 53; 25 Atl. Rep. 151.
132 OIL AND GAS.
well, and one is drilled which proves to be a dry well, yet the
lessee is bound to bore other wells nntil he has fully developed
the territory.-'^'' If two wells were to be put down by a certain
time, the putting down one well, which proved to be a dry well,
will not relieve the lessee from the payment of rent, when two
wells were to be put down by a certain time or rent to be paid.-"^°
If there be several tracts of land leased, with a royalty for each
well, each tract will be treated as a separate tract, and a well
must be put down for each of them or rent be paid.^" If the
lease bind the lessee to test the land within three years, and to
work it within a reasonable time, both provisions are conditions
on which the lease depends."^" The test well cannot be put
down on an adjoining premises, especially if some distance
from the line of the leased territory ; but it must be put down
on the premises leased.-^'^ An instrument conveyed the oil and
gas under forty acres of land, with the right to enter and drill
and operate for oil or gas, and maintain all structures and lay
all pipes necessary for its production and transportation, and
leasing one acre for a test well, with a provision that the lessee
should commence operations within thirty days, and complete
a Avell in thirty days after drilling was commenced, and if he
failed to do so, he should pay annually a specified price " per
acre " until the well was completed ; it was held that if no well
was completed, the lessee must pay the price fixed " per acre "
for forty acres, instead of only one acre.^^*
§114. Test well, when need not be drilled.
Notwithstanding from what has been said concerning the
duty to drill a " test well," it has been held that the circum-
269 Aye V. Philadelphia Co., 193 273 Carnegie Natural Gas Co. v.
Pa. St. 451; 44 All. Rep. 55.5. Philadelphia Co., 158 Pa. St. 317;
27oAhrns v. Chartiers Valley Gas 27 Atl. Rep. 951.
Co., 188 Pa. St. 249; 41 Atl. Rep. 2-4 Columbian Oil Co. v. Blake, 13
739. Ind. App. 680; 42 N. E. Rep. 234.
2"i Johnston, etc., R. R. Co. v. As to time to return and make
Egbert, 152 Pa. St. 53; 25 Atl. Rep. further developments, under pccu-
151. liar circumstances, see Henne v.
2T2 Petroleum v. Coal, etc., Co., South Pcnn. Oil Co., 52 W. Va. — ;
89 Tenn. 181; 18 S. W. Rep. 65. 43 S. E. Rep. 147.
LEASES. 133
stances may be such as to excuse the drilling of such a well.
Thus, several owners of leases divided them. Several of these
owners, who became defendants in a suit, gave the other own-
ers, who became the plaintiffs, an agreement binding themselves
to pay one thousand dollars if the oil well^ on the premises
transferred to them should be unproductive; and an unpro-
ductive well was defined as one in which oil was not produced
in paying quantities. Without drilling any well, the plaintiffs
sued the defendants on the contract, alleging that the territoiy
was unproductive ; and to prove that assertion, offered evidence
that the wells drilled through the stratum in which oil, Avhen
found in that county (and it seldom was found), cost about
three thousand dollars, and even then only a trace of oil had
been discovered. It was held that this was sufficient to show
that the wells would be unproductive and dry, and to excuse
the plaintiffs from digging a well in order to demonstrate the
barrenness of the premises in the production of oil. In passing
on the case the following language was used:
" If the testimony establishes the proposition that the plain-
tiffs pushed their investigations sufficiently to show that neither
the iSTelson nor Dodson well was one in which oil could be pro-
duced in paying quantities, they are entitled to recover. Their
right cannot be defeated by proof that a trace of oil was discov-
ered or even by proof that one of the wells might be made to
produce a few barrels, for such production was not sufficient to
make it a paying well. The Nelson well was put doA\Ti 1,600
feet. The Dodson well 1,377 feet. Oil in Allegheny County
is found, if at all, in the third sand. Both of these wells were
drilled through the third sand, and little, if any, oil was discov-
ered. Subsequent developments still further demonstrated their
unproductiveness. They are surrounded by a circle of dry
Iioles. Xo oil has been found in their vicinity. The plaintiffs
are criticised because the wells ' were not shot, torpedoed or
tubed,' but it would seem that it is not necessary to do this unless
the drilling shows some promise of oil. A torpedo may make
oil flow more freely, but it will not produce oil from barren
sand. There Avas no possible motive for the plaintiffs to omit
anything required to make the wells a success. It was manifestly
134 OIL AND GAS.
for their interest that the wells should pay. There is no direct
proof as to the amount to be paid for drilling .the two wells, but
if it were at the rate which the evidence shows was paid for
similar wells in Allegheny County, the plaintiffs were obligated
to pay nearly $3,000. The comparatively small sum which
they were to receive from the defendants in case the wells
proved unproductive was no inducement to them to stop the
work until every reasonable test had been made. Every in-
centive was in this direction. If the wells proved successful,
it meant a fortune to the plaintiffs. If they failed, it meant a
large loss even after the $1,000 had been paid by tlie defend-
ants. I am satisfied that the plaintiffs did all that the agree-
ment required, and that nothing which they could have done
would have developed oil in paying quantities in either of the
wells in question." ''^
§115. Test well. — Depth.
" Can it be said that, in order to commence operations for a
test well, the drill must actually commence to penetrate the
rock ? I do not so understand the meaning of the expression
construed in connection with the facts presented by the record.
In many places, in order to sink a well it is necessary that some
sort of wooden or metallic casing be provided for the purpose of
excluding the soil and clay which must be passed through before
the rock is reached ; and it would hardly be contended that the
purchase and provision of the necessary material for such casing
or cribbing was not an important step in putting down the well.
Webster defines the word ' operation ' as ' an effect brought
about in connection with a definite plan ' ; and, in giving the
interpretation ordinarily ascribed to the words ' to commence
operations ' — that is, applying to the words their common ac-
ceptation — I would understand the expression to mean the
perfomiance of some act which has a tendency to produce an
intended resitlt. For instance, if a man had determined to erect
a brick house, and, in pursuance of that design, had quarried
the rock on his own land to be used in the cellar walls and
275 Rice V. Ege, 42 Fed. Rep. 661.
LEASES.
Idl
foundation, and had burned a kiln of brick on tlie same prem-
ises for tlie purposes of constructing the walls and chimneys, it
surely could not be said that he had' not commenced operations,
although the roads might then be in such a condition as to pre-
vent him from hauling the stone and brick to the place he had
selected for its location. Another familiar instance that may
serve the purpose of illustration is the erection of locks and
dams for the purpose of improving navigation by increasing the
depth of the water. . . . When the location of the lock
has been selected and stone has been quarried and prepared,
although 'it has not been hauled to the location and no excava-
tions have been made to receive it, we would not be warranted
in saying that operations had not been commenced for the con-
struction of the lock. And again, where a building has been
destroyed by fire, how frequently do we hear it remarked that
the owner commenced operations at once for the construction of
another by clearing away the debris and contracting for the
material with which to rebuild tlie structure ? The terms of
the covenant contained in said lease must be regarded as hav-
ing been complied with, no matter how slightly may have been
the commencement of any portion of the work which was a
necessary and indispensable part of the work required in put-
ting down the test well." "'*'
§116. Lessor and lessee by mistake locating well on stranger's
land.
Tf the lessee and lessor by mutual mistake locate a well out-
side of the leased premises and on a stranger's land, the lessor
cannot claim any part of the oil or gas as royalty, or rent for
the well.^'"'
§117. " Shooting " well.
Unless some statute prevent it, there is nothing to prevent a
well owner from "' shooting " it, in order to increase the flow of
2Tr. Floming Oil and Gas Co. v. See ^Marshall v. Mellon, 26 Pittsb.
South Penn. Oil Co., 37 W. Va. 645; L. J. (X. S.) 290; 17 Pa. Co. Ct.
17 S. E. Rep. 20.i. Kep. 3GG.
277 Mays V. Dwicrht. 82 Pa. St. 462.
136 OIL AND GAS.
gas or oil, and even though it has the effect to drain the oil or
gas from his adjoining neighbor's premises."'^ Bnt the owner
may not '' shoot " his well if it is sitnated in the center of a
thickly populated city where he cannot collect the necessary
quantity of explosives to " shoot " it, without endangering the
lives and property of those who have no connection with his
operations. In such an instance he must he content witli such
flow of gas or oil as can be obtained without such '^ shooting " ;
and an injunction will lie against him to prevent the accumu-
lation or use of the explosives."'" So if a well is situated so
close to a dwelling house as to endanger the house or' its occu-
pants, or even any building of value, if it be " shot," the owner
of such well may not " shoot " it ; and if he attempt or threaten
to do so, he may be enjoined."®"
§118. Oil lease, who entitled to gas.
Under a lease giving the right to drill and " gather " " all
oil or gases " on the leased premises, in consideration of a part
of the oil found, the lessee is entitled to all the gas found. "®^
In passing on this question, tlie West Virginia Supreme Court
used the following language :
" While the grant is for specific purpose of mining for and
removing carbon oil and for none other, still there is neces-
sarily included in this grant, all the incidents essentially or
naturally pertaining to its enjoyment. Tnclude<l in these are
the elements such as light, air and water. And having the
legal right to enter upon and occupy any portion of the prem-
ises, the appellant could, without becoming a trespasser or
27S People's Gas Co. v. Tyner, 131 2si Eaton v. Wilcox, 42 Hun Gl;
Ind. 277 ; 31 N. E. Rep. 59 ; IG L. Wood County, etc., Co. v. West Vir-
R. A. 443; Tyner v. People's Gas ginia, etc., Co.. 28 W. Va. 210; 57
Co., 131 Ind. 408; 31 N. E. Rep. Gl. Am. Rep. G.in. j-!ut see Kitchen v.
2V0 People's Gas Co. v. Tyner, su- Smith, 101 Pa. St. 452; Kier v.
prn. Tyner v. People's Gas Co., su- Peterson, 41 Pa. St. 357; Truby v.
pra. Palmer, 4 Cent. Rep. (Pa.) 925; G
280 People's Gas Co. v. Tyner, su- Atl. Rep. 74; Palmer v. Truby. 136
pra. Windfall Mfg. Co. v. Patter- Pa. St. 556; 20 Atl. Rep. 51G. Sou
son, 148 Ind. 414; 47 N. E. Rep. Burton v. Forest Oil Co. (Pa.), 54
2; 37 L. R. A. 381. Atl. Rep. 266.
LEASES.
137
incurring any liability to tlie lessors, use and ap'propTiate any-
thing it might find thereon, which is not the property of an-
other, sucli as animals ferae naturae, or waters percolating
through the land, even though hy such use and appropriation
it may deprive another, having an equal right, of the power to
do so. These are not the subjects of absolute property, and
being therefore jui^c naturae capable of qualified ownership
only, they belong to him who first appropriates them. If the
hydrocarbon or natural gas now in controversy belongs to the
class of things which are incapable of being absolute property,
but are the subject of qualified property only, such as those
above mentioned, then it is clear this gas was not the property
of the plaintiff, and the appellant was not liable for its use and
appropriation ; but if, on the other hand, said gas is susceptible
of absolute ownership, then it is a part of the realty of the
plaintiff, to which- the appellant has no right under said lease,
and is, therefore, liable to the plaintiff for the value of the
same. The important and decisive inquiry in this cause is,
therefore : To which category does hydrocarbon gas belong ?
In the article on ^ Gas and Gas Lighting,' in tlie Encyclopedia
Britannica, it is stated that inflammable gas is fonued in great
abundance within the earth in connection with carbonaceous
deposits, such as coal and petroleum ; and similar accumula-
tions not unfrequently occur in connection with deposits of
rock-salt; the gases from any of these sources, escaping by
means of fissures or seams to the open air, may be collected and
burned in suitable arrangements. Thus the ' eternal fires ' of
Baku, on the shores of the Caspian Sea, which have been known
as burning from remote ages, are due to gaseous hydrocarbons
issuing from and through petroleum dejwsits. In tlie province
of Szechuen, in China, gas is obtained from beds of rock-salt at
a dep'tli of 1,500 or 1,600 feet; being brought to the surface, it
is convej'ed in bamboo tubes and used for lighting as well as
for evaporating brine; and it is asserted tliat the Chinese used
this naturally evolved gas as an illuminant long before gas light-
ing was introduced among European nations. . . . It is
apparent from this history of the nature and properties of nat-
ural gas that it partakes more nearly of the character of the
138 OIL AND GAS.
elements, air and water, than it does of those things which arc
the subject of absohite property. . . . The right of appro-
priation is so absolute in tlie case of water flowing under ground
that if the owner of land in digging a well or cellar or working
a mine on his o\vti premises cuts off the water, which by per-
colation supplies his neighbor's well and thereby diverts it
into his own or drains the well of his neighbor, the latter is
without remedy; it is dmnnum absque injuria, if not negli-
gently or maliciously done. If this were an open spring pro-
ducing oil and gas or such a natural emission of gas as that at
Bloomfield, in New York, or that at the Burning Spring, in
Wirt County, West Virginia, instead of a well 1,000 feet deep,
there could be no more question, it seems to me, as to tlie riglit
of the lessee to appropriate the gas under the provisions of tliis
lease than there is of his right to consume the air and water
upon the premises. What difference, then, is there between
these cases and the well in question, which was opened in ex-
press conformity with the written terms of the lease? It is
the same as if the well had been there before the lease was
made." -'^
Where a lease provided that the lessor should receive a cer-
tain portion of the oil produced ; and also provided that " should
any well produce gas in sufficient quantities to justify market-
ing, the lessor shall be paid at the rate of one hundred dollars
per year for such well so long as gas therefrom is sold " ; and
the lessor brought suit to recover the gas rental, alleging that
the lessee had marketed and sold gas from a well, it was held
that an expert might testify to the necessity of removing the
gas in order to successfully operate the well for the production
of oil, as showing that the removal of the gas was consistent
with the denial of the lessor's right to collect a rental there-
for.^^^'
2S2 Wood County, etc., Co. v. West 283 Shewalter v. Hamilton Oil Co.,
Virginia, etc., Co., 28 W. Va. 210; 28 Ind. App. 312; 62 N. E. Rep. 708.
.57 Am. Rep. 659. Contra, Kitchen
V. Snith. 101 Pa. St. 452.
LEASES. ^^^
.R119. Oil lease gives no right to gas if oil be not found.
If a lease be executed for the purpose alone of drilling for
oil, and oil be not found, though gas be found, the lessee cannot
insist tliat the lease has not terminated, on the ground that he
had succeeded in developing a paying gas well or wells; and
the lessee is not even entitled in equity to reimbursement, lor
the expense of his operations, out of tlie proceeds of the gas ob-
tained. In passing on this question the court said : The lease
" expressly declares the property shall be occupied and worked
for petroleum, rock or carbon oil, and shall not be occupied or
used for any purpose whatever; and if no oil is found in pay-
ing quantities within four years from this date ^- the lease
shall be null and void. Oil was not found. It would be a
.clear perversion of language to hold that oil and gas are syn-
onymous terms. The evidence is insufficient to prove that the
word gas was omitted from the lease through fraud, accident
or mistake. The doctrine of equitable estoppel is not applica-
ble to the facts." ''' On the second branch of the proposition
above stated, this same court used the following language :
" The rio-hts of the parties are determined by their contract,
which is a^'law of their ow making. It is a si^eculative con-
tract, whollv at the risk of the lessees. If they obtain oil they
make a profit, in some instances a very large one; while if they
fail the loss is wholly their own. They have no right to be
reimbursed bv the lessor, or out of their proi^erty, under any
circumstances whatever. As before observed, it was a specula-
tion pure and simple, in which the lessees assumed all Hie risk.
They did so for the chance of getting seven-eighths of the oil.
Upon what principle of equity can this risk be shifted upon the
lessors and thev be required to pay for the expenditures which
the lessees agreed to make at their o^vn risk ? It will be seen
at a glance that there is no analogy between such case and that
of a person who is in iiossession of land, under color of title, and
innocently builds a house or bam, or makes other valuable and
.34 The date of the lease. -^ Truby v. Palmer, 4 Cent. Rep.
(Pa.) 925; 6 Atl. Rep. 74.
140 OIL AND GAS.
permanent improvements upon it. In sucli case, in an action
for tlie mesne profits, he may justly be allowed for the value of
such improvements to the extent they have increased the value of
the property. But here, the lessees did nothing but what they
agreed to do at their own risk." ^^^
§120. Eviction. — Ejectment.
If the lessor convey the leased premises to a third person, and
the deed of conveyance is not made subject to the lease, there
is a technical eviction of the lessee ; "^^ but if the grantee had
knowledge of the lease, the lessee's rights are not lost, and there
is no breach of a covenant of warranty. '^^ The erection by the
lessor of a building on the part of the land to b© occupied by the
lessee, but which does not interfere with his operations, is not
an eviction.^^'' If the lease be made of a, large tract, but tlie
lessee is to occupy only a certain portion of it for his operations,
he cannot maintain ejectment for such portions as he does not
occupy.^^" Ejectment, however, lies in favor of a lessee to re-
cover possession from which he has been nnlawfnlly deprived of
the possession."'*^ If a lessee goes into possession of premises
already leased for tlie same purpose but accepts from the first
lessee a sum of money on account of damages, and contracts with
28t5 Palmer v. Truby, 136 Pa. St. W. Rep. 1083; 20 Ky. L. Rep. 1082;
556; 20 All. Rep. 516. Ream v. Goslee, 21 Incl. App. 241;
A lease gave the right to drill for 52 N. E. Rep. 93 ; Lake v. Dean,
oil and gas, and contained a pro- 28 Beav. 607 ; Demars v. Koehler,
vision for a certain rental if gas 60 N. J. L. 314; 38 Atl. Rep. 808.
was obtained, witliout any distinc- 28o Matthews v. People's Natural
tion as to whether the gas was de- Gas Co., 170 Pa. St. 105; 36 Atl.
rived from gas or oil wells. It was Rep. 216.
held that evidence was not admis- sgoDuflicld v. Hue, 129 Pa. St.
sible to show that the word ''gas," 94; 18 Atl. Rep. 566.
as used in the lease, in trade meant Solid mineral under the soil may
gas derived from a gas well, and be the subject of an action of eject-
not gas derived from an oil well. ment. Kirck v. Mattier, 140 Mo.
Burton v. Forest Oil Co. (Pa.), 54 23; 41 S. W. Rep. 252.
Atl. Rep. 266. 291 Erskine v. Forest Oil Co., SO
2S7 Mathews v. People's Natural Fed. Rep. 583; California Oil Gas
Gas Co., 179 Pa. St. 165; 36 Atl. Co. v. Miller, 96 Fed. Rep. 12; Mes-
Rep. 216. simer's Appeal, 92 Pa. St. 168;
288 Sanders v. Rowe (Ky.), 48 S. Long's Appeal, 92 Pa. St. 171.
LEASES. l4l
him as to damages in the future, he cannot defend against the
payment of rent on the ground that he has been evicted by his
landlord. -°-
§121. Failure of title, reimbursement of operator.
If a person in ]X)ssession of oil land, in good faith believe he
has good title thereto, either by way of ownership or as lessee,
and under that belief drill a well or wells ; and afterwards he
lose possession, in an action of ejectment; he may retain out
of the proceeds of the oil or gas produced during his occupancy
a sufficient amount to reimburse himself for the cost of drilling
the well. In discussing this case, the Supreme Court of Penn-
sylvania said :
" If this is a kind of improvement of an unusual character
and one which particularly commended 'itself to the favorable
opinion of the courts. It was an oil well with all the machinery
and appliances necessary to its operation. Xow, without this
well and machinery, the oil could not possibly be obtained.
After it was completed its operations were all for the benefit of
the plaintiffs. The}' have actually received the entire advan-
tage of its structure and maintenance without a penny cost to
themselves and without any risk. All the cost and all the risk
were borne by the defendants. . . . Obtaining oil from
the bowels of the earth is a very different thing from obtaining
crops from the surface of the ground. The oil exists only at a
distance of hundreds of feet below the surface. If it is not
developed by means of wells it is the same as if it had no exist-
ence at all. It is in a state of nature, of no use or value to the
o^\^^er of the land. . . . Therefore, it is no hardship to
them to repay to the defendants the bare cost of the well and
appliances which belong to the plaintiffs now, and the whole
benefits of which accrue to them alone. ... It has cost
the plaintiffs nothing, and we know of no good reason, in law or
morals, why the reasonable claim of the defendants should not
be allowed. . . . It is not a question of staying waste, but
292Horberg v. May, 153 Pa. St. 216; 25 All. Rep. 750.
142 OIL AND GAS.
of allowance for the cost of valuable improvements actually
necessary and made in good faith. For sudi improvements
compensation is allowed, whether that which is taken be min-
eral, oil or other siibstauces of the land or not." ^^^
§122. Lessee denying tenancy.
The rule that a tenant cannot deny his landlord's title does
not embrace an oil or gas lease which the lessor had no right to
give, if neither the lessee nor his assignee ever took possession
or executed any powers or rights under it."^* Where a son
joined in a lease witli his father of the latter's farm, he being
of full age and living on the farm with his father, and the
royalty reserved to both of tliem was delivered to the father
and his vendee, it was held, in an action brought by the son
against tlie lessee to recover one-half of the royalty, that the
lessee could show the circumstances under which the son signed
the lease, not to deny the landlord's title, but to deny, as to the
son, that the lease created the relation of landlord and tenant."^^
If a lessee take a second lease of the premises from a person
claiming adversely to the first lessor, he caiuiot refuse to pay
rent under the second lease on the ground that the first lessor
liad the better title. '^'^
§123. Uncertainty on lease. — Unconscionable.
If a lease be uncertain in its terms, and tliose parts in which
it is not uncertain is unconscionable towards the party seeking
to escape from its obligations, the court will seize upon sudi
iincertainty in order to declare it void.'^"
"293 Phillips V. Coast, 130 Pa. St. use that as a defense to an action
S72; 18 Atl. Rep. 998. to recover royalty. Chambers v.
294 Marshall v. Mellon, 26 Pittsb. Smith, 183 Pa. St. 122; 38 Atl. Rep.
X. J. (N. S.) 290; 17 Pa. Co. Ct. 522.
Hep. 366; affirmed 179 Pa. St. 371; 290 Hamilton v. Pittock, 158 Pa.
^6 Atl. Rep. 201. See Mays v. St. 457; 27 Atl. Rep. 1079.
"Dwight, 82 Pa. St. 462. 297 Eaton v. Wilcox, 42 Hun 61;
295 Swint V. McCalmont Oil Co.. Stahl v. Van Vleck. 53 Ohio St. 136;
184 Pa. St. 202; 38 Atl. Rep. 1020. 41 N. E. Rep. 35; 33 Wkly. L.
A lessee cannot compromise with Bull. 335.
an assailant of the lessor's title, and
LEASES. 143
§124. Diameter of wells.
A contract by a well driller to drill a well of a certain diame-
ter is not substantially performed by boring one of less diame-
ter, without* any other excuse except to save time and expense,
although for the purpose of testing the territory, a smaller well
may be as eifectual as a larger one would be."^^ Unless the lease
require the lessee to drill a well of a specified diameter, he has
the right to determine tlie diameter of the well, limited, how-
ever, by the general rule that the diameter* must be one that is
great enough to furnish oil or gas in payiiig quantities', if that
amount should be discovered. Or in other words, the diameter
must be such as is in common use in oil or gas regions, and
which common experience has shown to be necessary to produce
good results.
§125. Contract to drill wells "in the vicinity."
A well driller offered tO' drill an oil w^ell upon any one of the
lessee's several leases that it should select. He also proposed,
" If you decide to drill any more wells upon said leases or in
the vicinity, ... I am to have the contract." At the end
of this written offer was written, " Accepted, contract to Im'
drawTi in accordance with the above proposition or bid," and
after these words were written, '' This is about right, and ^vill
be sati&factors' to the Pittsburgh Company." A well was dug
by the driller, without any contract being executed which proved
to be a dry one. The lessee then abandoned the enterprise of
sinking wells on about one thousand acres of contiguous lands
held by it by lease, and on which the dry well had been sunk, but
began sinking wells two miles away from tlie territory aban-
doned. It was held that the contract to drill wells did n<it
cover the territory two miles away, for it applied only to lands
'' in the vicinity," and the lands two miles away was not " in
the vicinitv." ''^
238 Gillispie Tool Co. v. Wilson, 299 Sparks v. Pittsburgh Co., 1.59
123 Pa. St. 19; 16 Atl. Rep. 36. Pa. St. 295; 28 Atl. Ren. 152.
CHAPTER IV.
DURATION OF LEASE.
§126. Ordinary leases.
§127. Diligent search. — Implied covenant.
§128. Holding for speculation purposes.
§129. Non-develoijment of leased premises where no limit fixed. — For-
feiture.
§130. Greater diligence required in developing oil than coal lands.
§131. Acquiescence in delay. — Unavoidable accident.
§132. Acquiescence in abandonment. — Damages.
§133. Actual mining operations must be commenced.
§134. In paying quantities.
§135. Paying quantities, continued.
§136. C4as in paying quantities.
§137. Abandonment.
§138. Lessee may abandon non-productive premises.
§139. Completion of non-productive well. — Title.
§140. Instances of abandonment.
§141. Cessure of work after operations begim.
§142. Surrender.
§143. Surrender by substitution of tenants or assignment of lease.
§144. Parol surrender.
§145. Payment of rental instead of developing premises.
§146. Rccision for fraud.
§126. Ordinary leases.
In an ordinary lease the time of its duration is usually speci-
fied, so that no trouble arises over the length of time it is to
run ; but even it may contain so many conditions, " ifs and
ands," that it is difficult to determine its life. But in the case
of gas and oil leases, there is scarcely a lease in existence that
does not contain conditional clauses which are determinative cf
its duration. Oil and gas leases are almost universally granted
upon the condition that they are to terminate v^^hen all the oil or
gas has been taken out of the leased premises. And almost
144
DUKATION OF LEASE. 145
every oil or gas lease contains a clause requiring the premises
leased to be developed, or partially developed, within a specified
time, or the demise to terminate ; and whether such a clause is
inserted or not, the courts hold that the lease is granted upon
an implied condition that the premises shall be speedily devel-
oped, and will seek an opportunity to hold that they have been
abandoned (though usually not forfeited), if not developed
with reasonable celerity/
§127. Diligent search. — Implied covenant.
It is the duty of the lessee to make diligent search and opera-
tion of the leased premises; and it is not necessary that a provi-
sion for such search or operation be inserted in the lease ; for it
is an implied covenant in every oil and gas lease that a diligent
search and operation will be prosecuted.' And where the only
consideration was the royalty, a failure on the part of the lessee
to commence operations for eight months was held to be an aban-
donment.^
§128. Holding for speculative purposes.
An oil or gas lease cannot be held for merely speculative pur-
poses.* " Xo lease of land for a rent for a return to the land-
1 Parish Fork Oil Co. v. Bridge- closing it, was held prima facie to
water Gas Co., 51 W. Va. 583 ; 42 !S. authorize the grantor, who was to
E. Rep. G55 ; Gadbury v. Ohio, etc., be paid .$100 per annum for each
Gas Co. (Ind.), 67 N. E. Rep. 259; well while gas was being used off the
McKnight v. Natural Gas Co., 146 premises, without demand, to treat
Pa. St. 185; 23 Atl. Rep. 164; 28 the grant as abandoned. Gadbury
Am. St. Rep. 790. v. Ohio, etc., Gas Co. (Ind.), 67 N.
2Huggins V. Daley, 99 Fed. Rep. E. Rep. 259.
606; 40 C. C. A. 12; 48 L. R. A. 4 Huggins v. Daley, 99 Fed. Rep.
320; Allegheny Oil Co. v. Snyder, 606; 40 C. C. A. 12; 48 L. R. A.
106 Fed. Rep. 764; 45 C. C. A. 604; 320; Twin-Lick Oil Co. v. Marbury.
Hewitt Iron Mining Co. v. Dessau 91 U. S. 587; Guffey v. Hukill, 34
Co., 129 Mich. — ; 89 N. W. Rep. W. Va. 49; 11 S. E. Rep. 754; 8 L.
365. R. A. 759; Steelsmith v. Gartlan,
3 Federal Oil Co. v. Western Oil 45 W. Va. 27; 29 S. E. Rep. 978;
Co., 112 Fed. Rep. 373. 44 L. R. A. 107; American Window
Failure of the lessee for two years Glass Co. v. Williams (Ind. App. ),
to develop the premises, after drill- 66 N. E. Rep. 912.
ing a well, finding gas, and then
146 OIL AND GAS.
lord out of the land which passes can be constrned to he intended
to enable the tenant merely to hold the lease for purposes of
speculation, without doing and performing therewith what the
lease contemplated. Such a construction would, indeed, make
all such contracts a snare for the entrapment and injury of the
unwary landlord. A man buying and paying for land may do
with it as he likes — work it or let it lie idle. But a tenant to
whom land ])asses for a specified purpose has no such discretion ;
he must perform what he stipuhited to do." ^
§129. Non-development of leased premises where no limit fixed. —
Forfeiture.
In many early oil or gas leases no time was fixed when the
premises should be developed. It was assumed that the lessee
had interest enough in the lease to develop the premises. It
seldom, occurred to a land owner that a lessee had a lease on
adjoining premises by which he could drain the oil or gas
from beneath such o^vuer's premises ; or that he desired to keep
the premises for future use. Forfeiture clauses in such leases
were seldom inserted for failure to develop the premises leased.
In time the land owner realized that he was getting no benefit
out of his land by reason of the oil or gas that he believed or
even was morally certain was lying beneatli its surface, and he
sought a way to avoid the lease. Courts found it essential fry
the administration of justice to give him relief, and lent their
powerful aid to him.*' It is the duty of the lessee to develoj>
the premises ; and he can not hold the land for speculative pur-
poses indefinitely, or even for a stated period, for. a nominal
rent, when a royalty is the chief object for the execution of the
lease." '' The fluctuating character and value of tliis class of
RRorer Iron Co. v. Trout, 83 Va. hevry v. Sun Oil Co. (Ohio) 07 N.
397; 2 S. E. Rep. 713; Munroe v. E. Ri'p. 100!).
Armstrong, !)G Pa. St. 307. ^ Twinlick Oil Co. v. Marbury.
« Brown v. Vandergrift. 80 Pa. ni U. S. 587; Huggins v. Daley, !)!)
St. 142; Island Coal Co. v. Comb.s, Fed. Rep. G06 ; 40 C. C. A. 12; 48
152 Ind. 379; 53 N. E. Rep. 452; L. R. A. 320; Rorer Iron Co. v.
Maxwell v. Todd (N. C), 10 S. E. Trout, 83 Va. 397; 2 S. E. Rep. 713;
Rep. 926; Ohio Oil Co. v. Hurlburt, Allegheny Oil Co. v. Snyder, 100
14 Ohio C. C. 144; 7 Ohio Dec. 321, Fed. Rep. 764; 45 C. C. A. 004.
reversing Ohio Dec. 305; Coflin-
DURATION OF LEASE. 147
property," said the Supreme Court of the United States, " is
remarkably illustrated in the history of the production of min-
eral oil from wells. Property worth thousands today is worth
nothing tomorrow ; and that which we today sell for a thousand
dollars as its fair value, may by the natural changes of a week,
or the energy or courage of desperate enterprise, in the same
time, be made to yield that much every day. The injustice,
therefore, u obvious of permitting one holding the right to as-
sert an ownership in such property to voluntarily await the
event, and then decide, when the danger which is over has been
at the risk of another, to come in and share the profit. While
a much longer time might be allowed to assert, this right in
regard to real estate whose value is fixed, on whicli no outlay
is made for improvement, and but little change in value, the
class of property here considered, subject to the most rapid, fre-
quent and violent fluctuations in value of anything known as
property, requires prompt action in all who hold an option,
whether they will share its risks or stand clear of them." *
Where a gas or oil lease was given for ten years, a certain por-
tion of the oil obtained to be given as royalty, a fixed sum paid
annually, and a test well to be completed within one year from
the date of the lease, it was held that the lessee could not dig a
test well within the year, and thus vest in himself the privilege
to take out oil and gas for ten years in the whole territory ; but
he was bound, within a reasonable time thereafter, to sink other
wells so as to develop the whole territory ; and if he did not,
he had abandoned or forfeited his right to the whole territory
premises. The premises were covered by several separate
leases on its several parts, and, of course, the test well was
drilled under only one lease. The court held that the other
leases were abandoned.^ A failure for seven years to put down
a test well was considered such laches as to show an abandon-
sTwinlick Oil Co. v. Marbuiy. Oil Co. v. Harris, 1 Ohio N. P. 132:
supra. See Coffinberry v. Sun Oil 1 Ohio Dee. 157; Foster v. Elk Fork
•Co. (Ohio) 67 N. E. Rep. 1069. Oil and Gas Co., 90 Fed. Rep. 178;
9 Elk Fork Oil and Gas Co. v. 32 C. C. A. 560.
.Jennings, 84 Fed. Rep. 839; Ohio
148 oil. AND GAS.
ment, and the lease was cancelled. ^^ A lessor will not be per-
mitted to retain possession of tlie leased premises for the pur-
poses of exhausting tlie oil or gas under the surface tliereof by
means of wells on adjoining land controlled by him, which
would drain the oil from the leased premises." An o^vner of
land leased his premises to a gas company for ten years, and as
much longer as gas was found in paying quantities, or the
" rental " was paid as provided. If gas was found in quanti-
ties sufficient for manufacturing purposes, the gas company was
to pay one hundred dollars per annum for each well from the
time gas was used therefrom for such purposes. Until a well
was drilled and gas used therefrom by the gas company, it was
to pay fifty dollars a year " rent." It was held tliat the lease
did not continue in force beyond the ten years, by reason of the
fact that the lessee completed a paying well, which he closed and
anchored, and yet continued to pay tlie rent.^^
§130. Greater diligence required in developing oil than coal
lands.
In the development of oil lands greater diligence is required
than in the development of coal lands, to prevent a forfeiture
or raise a presumption of abandonment. The Supreme Court
of Pennsylvania thus speaks of the difference: "The appel-
lant cites Venture Oil Co. v. Fretts,^^ and McXish v. Stone,^*
and other cases in which oil leases were considered and the rights
of the lessors and lessees defined. A lease granting to the lessee
the right to explore for oil and, in case oil is found in paying
quantities on the leased premises, to drill wells and raise the
10 Crawford v. Ritchey, 43 W. Va. 502; 27 Pittsb. L. J. (N. S.) 21; 38
252; 27 S. E. Rep. 220; Barnliart W. N. C. 388; 35 Atl. Rep. 109.
V. Lockwood, 152 Pa. St. 82; 25 12 American Window Glass Co. v.
Atl. Rep. 237; Ohio Oil Co. v. Hurl- Williams (Ind. App.), 66 N. E. Rep.
linrt. 14 Ohio Cir. Ct. Rep. 144; 7 912. See also Gadbury v. Ohio, etc.,
Ohio Dee. 321, reversinjr 6 Ohio Dec. Gas Co. (Ind.). 67 N. E. Rep. 259.
305; Hawkins v. Pepper. 117 ^. C. is 152 Pa. St. 451; 25 Atl. Rep.
407; 23 S. E. Rep. 434; Welty v. 732; 31 W. N. C 432.
Wise, 5 Ohio N. P. 50. i4 152 Pa. St. 457, note.
11 Kleppner v. Lemon, 176 Pa. St
DUKATIOX OF I.EASE. 149
oil, paying an agi"eecl royalty therefor, has been held to convey
no interest in the land beyond the right to enter and explore,
unless the search for oil proves snccessful. If it proves unsuc-
cessful and the lessee abandons its future prosecution, his rights
under the lease are gone. So it might be with a similar lease
of lands supposed tO' contain coal. If the lessee entered, ex-
plored the leased premises, and finding nothing gave up the
search, he would no doubt be held to tlie same i-ules, upon the
same provisions in the lease, as were applied in the cases cited.
The difference in the nature of the two minerals, and the man-
ner of their production, has, however, resulted in considerable
differences in the forms of tJie contracts or leases made use of.
When oil is discovered in any given region, the development of
the region becomes immediately necessary. The fugitive char-
acter of oil and gas, and the fact that a single well may drain
a considerable territory and bring to tlie surface oil that, when in
place in the sand-rock, was under the lands of adjoining o-wn-
ers, makes it important for e^ch land owner to test his o^\^l land
as speedily as possible. Such leases generally require, for this
reason, that operations should begin within a fixed number of
days or months, and be prosecuted to a successful end or to aban-
donment. Coal, on the other hand, is fixed in location. The
owner may mine when he pleases regardless of operations,
around him. Its amount and probable value can be calculated
with a fair degree of business certainty. There is no necessity
for haste, nor moving pari passu with adjoining owners. The
consequence is that coal leases are for a certain fixed term, or
for all the coal upon the land leased, as the case may be. The
rule of Venture Oil Co. v. Fretts, supra, is not capable of ap-
plication to the lease made by Callender to Meredith in 1828,
for several reasons: (1) The Callender lease is in effect a
sale of all the coal in the leased premises, and consequently a
severance of the surface therefrom. (2) It is for one hundred
years. All idea of haste in development or operating is ex-
cluded by the terms of the instrument, and the time for com-
mencing the work of mining is left to the discretion of the les-
see. (3) The consideration of the grant was not the develop-
150 OIL AND GAS.
ment of tiie mineral value of the land, but the price fixed by
the agreement and actually paid to the lessor in money." ^^
§131. Acquiescence in delay. — "Unavoidable accident.
The time of the lease, at least for development of the prem-
ises, may be prolonged by the acquiescence of the lessor in the
delay. And where the lease provided that -d test well should be
completed by a given time, " unavoidable accident " excepted,
it was held that a recognition by the lessors of tlie unavoidable
character of certain accidents delaying operations, coupled with
acquiescence in such delay, was a waiver of the right to enforce
the forfeiture clause of the lease.^*' Acquiescence, however,
with regard to the time within which a well is to be begun, is
not a waiver of the time, Avitliin which it is to be furnished.^'
An agreement that the lessee should have further time within
which to complete the development of the premises, even if
made after the lease has expired, is binding on the lessor.^*
§132. Acquiescence in abandonment. — Damages.
If a lessor acquiesce in tlie action of the lessee in abandoning
the leased premises, he will thereby terminate his lease and
waive his right to damages accruing after the time of the aban-
donment. Especially is this true if the aicquiescence is evi-
denced by tlie lessor taking possession and leasing the premises
to third parties, even if the second lease is for another mining
purpose.^''
§133. Actual mining operations must be commenced.
A lease requiring the work of development to be commenced
Within a certain time, by drilling wells, requires actual drilling
15 Plummer v. Hillside, etc., Co., As to endorsement on lease for an
160 Pa. St. 483; 28 Atl. Rep. 853. extension of an Ohio lease and its
16 Elk Fork Oil and Gas Co. v. recording, see Northwestern Ohio.
Jennings, 84 Fed. Rep. 839. See etc., Co. v. Browning. 15 Ohio Cir.
Duffield V. Michaels. 102 Fed. Rep. Ct. Rep. 84; 8 Ohio C. D. 188.
820; 42 C. C. A. 640. is Riddle v. Mellon, 147 Pa. St.
iTCleminger v. Baden Gas Co.. 30; 23 Atl. Rep. 241.
150 Pa. St. 16; 33 W. N. C. 480; 28 lo.May v. Hazlewood Oil Co.. 152
Atl. Rep. 293. Pa. St. 518; 25 Atl. Rep. 564.
151
DURATION OF LEASE.
operations to be commenced within tlie time specified; and tlie
„L erection of drilling apparatus will not be a compliance
witli its terms."
8134. In paying quantities.
.\ verv common expression in oil and gas leases is that they
ar^ to c;„tinue so long as oil or gas is or can be P™<1"<=«<1 'n
" paying quantities." This is a clause for the benefit of the
lesTi- L it is obvious that a prudent man would not want to
pTr^nt for premises after they had ceased to be producttve;
Z would he'carc to operate them, on even a royalty, .v^.ere
the operating expenses were more than the income. Occa-
Inalh he ^hrarmight I. of value to the lessor for should
the le^ee ocLpy considerable surface of the ground leased,
,„ight be of more value to him for other purposes than to h.^ve
it continued for oil or gas puriK>ses. If a lease is conditioned
that it is to continue •• so long as oil is produced m paying
quantities," its duration depends upon the intention of the par^
ties, as asoeitained from the circumstances of the case" 11
the lease is for a sj^cified i^riod, as for " three years, or as
,„uch longer thereafter as oil or gas might be found m paymg
quantities," then it extends only for three years, unless oil oi
gas be found in paying quantities before the expiration ol the
..Island coal Co. v. Co,„b,. 152 sell, 1. Oliio Or. Ct. Rap. mU 10
I„a. 379; 53 N. E. Rep. 432. In O"- ^fj^f, 'J t,, „„, t„ develop
thte case the lease was of eoal l.,nds. Neglect to. .^ ^^^^
,.ese,vi„g a royalty on ,e ou.pu Pjem.- ^^_ .^^ ^^^,,^ ^^„,
development ot tl.e eoa, .y ope.n. ^ ---'- ^ -. "'^
shafts to remove .t. and by open .;„.„i„rton v Wood, 6 Ohio
i„g mines so as to enable he coal -■ H«™g^- ■ ^.^ ^<.
to be mined and removed to m - <^%^ •^„,„.i,, .- „eans
ket. It was held that this re * ,L;{+^ tn the lessee " even
.-- aet.al ^-^^^^^^^l TZTP^^X^.^^ .-
and eqnipn.ent of shafts and nnnes etc Co^ ^ ■ ^ ^.^ ^,^^ ^ .^
hy whk-h coal nn,ht be nnned was 433 oitm 1 . ^^
not sufficient. See Duffield V. Rus- Pa. St. 243 , 4o .
152 OIL AND GAS.
period named, or, in the illustration given, before tlie expira-
tion of the three years."' The use of the word " and " for " or "
does not change the rule.'' The interpretation of" this clause
has not by any .means been uniform. Thus in Xew York
a lease for a terra of " twelve years from this date, or so long
as oil is found in paying quantities," was held to be a lease for
the length of time during which oil is found in paying quan-
tities, and that fixed the duration of the temi."* The reason-
able interpretation of such a clause is that the lessee has that
period of time fixed in the lease within which to develop the
premises, and he is not bound to proceed to develop them as soon
as tiie lease is granted, especially if he is to pay a fixed rent per
acre or per year or otherwise, nor mthin what might be termed a
reasonable time, so that he develops them before the period be de-
tennined."" But if he should iwWy develop them before the
end of the fixed period, hoAvever long before, and clearly demon-
strated that there is no oil or gas beneath the surface, then as
soon as that fact is ascertained the lease is at an end. If a
lessor has given a long period of time within which to develop
the leased premises, that is his act and he cannot appeal to the
courts to relieve him from the condition in which his own error
has placed him. If the lease be for a certain period " and as
long thereafter as oil is found in paying quantities," and the
lessee fail after the fixed period to produce oil in paying quan-
tities, the tenancy becomes one at will, not from year to year,
and may be ended at any time by either party; and if oil, after
the termination of the lease, be found in paying quantities, the
lessee can not insist that his lease is still in force, nor claim anv
2>(Shellar v. Shivers, 171 Pa. St. Cir. Ct. Rep. 78; 5 Ohio Cir. Dec.
569; 33 All. Rep. 95. 620.
23 Nortliwesiern Ohio, etc., Gas 24 Eaton v. Allegany Gas Co.. 122
Co. V. City of Tiffin, 59 Ohio St. N. Y. 416; 25 N. E. Rep. 981. re-
420; 54 N. E. Rep. 77; Cassell v. versing 42 Hun 61. See Monfort v.
Crothers, 193 Pa. St. 359; 44 Atl. Lanyon Zinc Co. (Kan.) 72 Pac.
Kep. 446 ; Brown v. Fowler, 65 Ohio Rep. 784.
St. 507; 63 N. E. Rep. 76; Balfour 26 See V.hur v. Northwestern, etc..
V. Russell. 167 Pa. St. 287; 36 W. Co.. 12 Oliio Cir. Ct. Rep. 78; 5 Ohio
N. C. 225; 31 Atl. Rep. 570; Blair Cir. Dee. 620.
V. Northwestern, etc., Co., 12 Ohio
DURATION OF LEASE. 153
part of the oil."' A lease for two years " and as much longer
as oil or gas would be found in paying quantities," requiring
the lessee to commence a well within thirty and complete it
within ninety days, and if no well was completed within the
latter period, requiring the lessee to pay sixty dollars per year,
the lessor to receive a certa-in part of the product as royalty,
is terminated at the end of the two years, if oil or gas be not
found in such quantities, and its life cannot be prolonged by the
payment of the sixty dollars a year thereafter ; for the life of the
lease beyond the two years is dependent on the fact that oil or
gas be found in paying quantities.'^ If the lease be for both gas
and oil purposes and gas only is found the lessee is to pay a
certain annual sum for each well, and if oil, pay a royalty ; the
production in paying quantities of either gas or oil, and the
payment of gas rental, or the delivery of the oil royalty will
prolong the lease during the time of such production."'' Where
a lease required the lessee, if oil be found in paying quantities,
to pay the lessor, in addition to land money six hundred dollars
within thirty days, the court considered it capable of enforce-
ment. " The obvious intention was," said the court, " that if,
for the period of thirty days after its completion, the well con-
tinued to produce oil in such quantities as to make it profitable
to operate it during that jTcriod, the six hundred dollars should
be demandable." The court continued its observations upon
the phrase " paying quantities," by saying: " There is a great
difference between a paying well, i. e., a well producing oil in
paying quantities, and one that pays for itself. A mine for
years may produce ore in paying quantities and be very profit-
able during that time, and yet, through a later depreciation in
the value of the mineral extracted from the ore, or from acci-
dent or failure to yield enough ore, it may never repay its first
cost." ^'^ It is for the operator, acting in good faith, to deter-
27 Cassell V. Crothers, 103 Pa. St. 29 Harness v. Eastern Oil Co., 49
359: 44 Atl. Rep. 446; Williams v. W. Va. 232; 38 S. E. Rep. 662.
Ladew, 171 Pa. St. 369; 33 Atl. Rep. 3o Collins v. Mechling, 1 Pa.
329. Super. Ct. Rep. 594; 38 W. N. C
28 Western Pennsylvania Gas Co. 235; 26 Pittsb. L. J. (N. S.) 459.
V. George, 161 Pa. St. 47; 28 Atl.
Rep. 1004.
154 OIL x\ND GAS.
mine when the lease is no longer profitable ; and the lessor can-
not terminate it because it is not profitable to him to bave it
continiie.^^ It is for tlie lessee, or some one for him acting
under the lease, to find oil in paying quantities on the premise.- ;
and if another find it in such quantities, not acting under the
lease, that will not prevent a tennination of the lease.^' Where
the lessor reserved the right to select four acres out of a seventy-
acre tract leased, and after the selection of the four acres the
lessee drilled a well on the remaining part, but did not find oil ;
and, with the assent of the lessor, a well was drilled by the
assignee of tlie lessee on tlie four-acre tract, which produced
oil in paying quantities, it was held that the assignee was en-
titled to a continuance of the lease, for the reason that the
leased property was producing oil in paying quantities.''^ A
mere cessation of the use of gas from a well will not terminate
the lease nor relieve the lessee from a liability to pay a rental
so long as gas is produced in paying quantities, but the lessee
must notify the lessor that the well has ceased to produce gas in
such quantities, and for that reason he terminates and surren-
ders the lease.^* Where a lease provided that if gas be " found
in sufficient quantities to justify marketing" it an annual rent
of five hundred dollars per annum for each well should be
paid " so long as it shall be sold therefrom," and gas being ob-
tained' in such quantities to justify its marketing, it was held
that the relation of landlord and tenant was established, and no
good reason being shown why he should not, the lessee must
market the gas and pay the rent.^^
§135. Paying quantities, continued.
Where the lessee was to commence a test well within ninety
days from the date of the lease, and prosecute the drilling
31 Young V. Forest Oil Co., 194 ^s Balfour v. Russell, 167 Pa. St.
Pa. St. 243; 30 Pittsb. L. J. (N. S.) 287; 36 W. N. C. 22.5; 31 Atl. Rep.
221 ; 45 Atl. Rep. 121, reversing 570.
Young V. Vandergrift, 30 Pittsb. L. 34 Double v. Union Heat, etc., Co.,
J. (N. S.) 39. 172 Pa. St. 388; 37 W. N. C. 389;
32 Thomas v. Hukill, 34 W. Va. 33 Atl. Rep. 694.
385; 12 S. E. Rep. 522. See Gar- 35 lams v. Carnegie Natural Gas
man v. Potts, 135 Pa. St. 506; 20 Co., 194 Pa. St. 72; 45 Atl. Rep. 54.
W. N. C. 305; 19 Atl. Rep. 1071.
DURATION OF LEASE. 155-
" with due diligence to success or abandonment, and should oil
be pumped or excavated in paying quantities on or before " the
end of one year from the date of the lease, then the lease " to
be null and void," and the lessee began tbe prosecution of the
work on time and prosecuted it until the middle of the year
when he withdrew the casing and left the premises for over three
months; and the lessee claimed he had found oil in paying
quantities, but admitted he had never pumped any from the
well, it was held that tlie prosecution to success required the
production of oil or gas in quantities capable of division be-
tween the parties, according to the terms of the lease.^'' A
lease to* run for a term of years, " or so long as oil or gas is
found on the premises," providing for the payment of a certain
rental " each year in advance for every well from which gas is
used off the premises," renders the lessee liable only so long as
he uses the gas ; and upon the failure of tlie well, or if it be-
comes impracticable to use the gas therefrom, he is released from
all liability/' Where the term was for years, and as much
longer as gas or oil should be found in paying quantities ;
and one well w^as drilled which produced gas in paying quan-
tities, and then failed ; it was held, upon failure of the well,
that the lessee Avas entitled to a reasonable lengtli of time to
drill at another location on the premises.', for the purpose of
finding oil or gas. " Does the language mean," asked the court,
'" that it is only so long as gas or oil is found in paying quan-
tities in the first well drilled, and that, when it fails, the lease
expires as to the entire premises ? The whole premises was held
by this lease for five years, and as much longer as gas or oil
is found in paying quantities ; not found in paying quantities
36 Kennedy v. Crawford, 13S Pa. ises were situated, or that the usage
St. 561; 27 W. N. C. 306; 21 All. was known to the lessor and lessee
Rep. 191. at that time. Collins v. Mechling,
An offer to prove that the phrase 1 Super. Ct. (Pa.) 594; 38 W. N.
"paying quantities" has a known C. 235; 26 Pittsb. L. J. (N. S.)
significance in oil regions must be 459.
accompanied by an offer to show 3' Indianapolis Gas Co. v. Teters
that such significance existed when 15 Ind. App. 475; 44 N. E. Rep. 549.
the lease was executed in the neigh- See Jlonfort v. Lanyon Zinc Co.
borhood in which the leased prem- (Kan.) 72 Pac. Rep. 784.
156 OIL AND GAS.
in one well, but found in such quantities v/hen proper and
reasonable search is made for it." ^^ Where on the first of Sep-
tember an annual rental from the date of drilling a gas well
was payable, and the well was drilled j^ovember 1, 1893, and
the rent for the two succeeding years was paid, but on Septem-
ber 1, 1896, the Avell was abandoned as unprofitable, it was held
that the lessor was entitled to recover a ratable part of the an-
nual rental for tlie year in which the well was abandoned, but
could not recover rent for the time after such abandonment.^"
If a rental is to be paid for a gas well and a royalty for tlie oil
produced, the lessee is not liable for rental for a gas well which
produces a little gas, although the gas from it is used for run-
ning the boilers on the premises.'"' An agreement to prospect,
and if oil be found in a certain amount the royalty to be not less
than a designated amount of money, and that a failure to sur-
render the lease by a certain day shall be an agi'eement that
there is sufiicient oil to pay the royalty named, will not render
a failure to surrender conclusive of the amount of the oil found,
but it will cast upon the lessee the burden to show that the
amount found was less than the amount specified in the lease.*^
A lease for three years, or so long as oil or gas should be found
in paying quantities, provided that the lessor was to receive a
share of the oil produced ; and if gas w\ts found producing one
hundred pounds pressure to the square inch in tliirty seconds,
the lessee had the right to consume enough, free of cost, to light
and heat his dwelling; but if it exceeded two hundred pounds,
he was to pay a certain rental per well ; it was held that he w^as
not bound to pay any rental, or compensation or damage for
occupation or use of the premises before or after the expiration
of ihe three years, where, during such three years, he had drilled
only one well which produced a pressure of less than two hun-
dred pounds, but which had furnished gas for lighting and
38 Blair v. Northwestern Ohio, 4o Taylor v. Peerless, etc., Co., 7
etc.. Co., 12 Ohio Cir. Ct. Rep. 78; Ohio Cir. Dec. 368; 14 Ohio Cir. Ct.
5 Ohio C. D. Gin. Rep. 315.
snMoon v. Pittsburgh Plate Glass 4i IMcCahan v. Wharton, 121 Pa.
Co., 24 Ind. App. 34; 56 N. E. Rep. St. 424; 15 Atl. Rep. 615.
108.
DURATION OF LEASE. 157
heating his residence.*" A lease containing a provision that
the premises shall be worked so long as it can be " advanta-
geously " done means so long as it can be " beneficially " or
" profitably " done.*'
§136. Gas in paying quantities.
A somewhat different rule from that followed in oil wells
must be adopted when the pkrase paying quantities is applied
to a gas well, or, j3erhaps, to speak moi'e accurately, the phrase
" paying quantities " as applied to a gas well requires different
conditions to render the lessee liable than it does to render him
liable when applied to an oil well. In the early operation of oil
wells the oil flowed from the well; but as the supply lessened,
or the pressure of gas beneath it decreased, pumping was intro-
duced. It was found that oil wells could be pumj>e.d at little
expense, and their operation remain profitable. Many wells,
hundreds of feet apart, could be operated with a single power
plant of no great power. But in the case of gas it was differ-
ent. The pressure at the mouth of the well was the force first
used to carry the gas through the pipes to the consumer, who
was often many miles away. Gradually pumps were intro-
duced, when the pressure of the gas declined, or it was desired
to carry it to a longer distance than the ordinary pressure would
carry it. A gas pump is a costly instrument ; and to operate it
requires experts and costly machineiy and a large amount of
capital. Even today it may be said to be an unusual thing to
pump gas ; while it is a universal thing to pump oil. These
phases of the subject- have been ably discussed by the Supreme
Court of Pennsylvania, in the following language :
" A lease of a mine or a quarry, at a rental to be fixed by
reference to the quantity of material removed therefrom, im-
plies an agreement on the part of the lessee to work the mine
or quarry. The reason is that, while the lessor does not lose his
material out of the mine or quarry, he loses his income there-
42 Oak Harbor Gas Co. v. Murphy, 506; 26 W. N. C. 305; 19 Atl. Rep.
7 Ohio Dec. 700. 1071.
43Garnian v. Potts, 135 Pa. St.
158 OIL AND GAS.
from. A lease of land for oil purposes imposes a somewhat dif-
ferent obligation upon the lessee. The oil is of such a nature
that, if not removed through wells upon the surface of the
leasehold, it may be wholly lost to the owner of the land by rea-
son of operations on lands adjoining. The duty to develop the
land, that is, to test thoroughly the existence of oil in the rocko
that should bear it, and if oil be found, to sink so many wells
as may be reasonably necessary in view of surrounding opera-
tions to secure so much of the oil underlying the land as may
be obtained with profit, gTows out of the nature of oil, and the
methods by which the oil is reached and brought to the surface^
An oil lease must be construed, therefore, with a due regard to
the known characteristics of the business. Oil and gas leases
are ordinarily combined in the same instrument, and are classed
together. For many purposes such classification is natural and
appropriate, but this case brings us to consider an important
difference between oil and gas, which makes it necessary to dis-
tinguish for some purposes between an oil and a gas lease.
Oil, when brought to the surface, is gathered into a receiving
tank or tanks at or near the well. When necessary or desirable,
it is removed by gravity or by pumping into the pipe lines that
serve the district in which the well is located, aaid conveyed to
storage tanks, where it remains until delivered to a purchaser.
It is, a matter of no consequence what the pressure may be at
the well, for there can be none in the tanks except that of grav-
ity. The w^ell that throws off violently its five thousand bp/i'rels
per day and that which reluctantly gives up four or five barrels
under the persuasive power of the pump will have their product
gathered into the same lines of transportation, or resting in the
same storage tanks. Gas cannot be gathered, stored, or trans-
]X)rted in this manner. If found in sufficient quantity, it is
turned from well into the line, and the pressure at the mouth
of the well is the motive power by which it is driven through
the line to the consumers' line. If the pressure at a given v/eM
is much below that in the line with which it is connected, tlie
gas from that well cannot enter the line, but will be drivc^i b-^ck
by the superior force it encou];ters at the point of criiino"[i"''.
For this reason, a w-ell producir'T g-^s in sufficient qunntitv to be
DURATION OF LEASE.
159
profitably utilized if there Avas a market for it near at hand,
raaj be entirely valueless if its product must find a market at a
distance too great to justify its transportation by a line of its
own. In an oil district, each well, no matter how large or how
small its product may l>e, is separately operated, and a well may
be profitably operated so long as its yield pays more than the
cost of producing the oil. In a gas district this is impracticable.
The product of many wells is gathered into one line so long as
the pressure is sufficient. When the pressure in any one falls
below the standard necessary for purposes of transportation,
that well must be turned off. Its product cannot be transported
separately, and, unless, it can be used near by, it is valueless.
These well known facts peculiar to the production of gas must
be taken into account in the construction of leases for gas pur-
poses." '^ As we have already seen, every barrel of oil brought
to the surface may be utilized in the same manner. ^Vhether
the well that produces it is a strong one, yielding many barrels
per day, or a weak one, yielding but few, is a matter that in no
way affects the ability of the producer to market his oil, or the
prices to be obtained for it. In gas territory, the lessee may
sink many wells and find gas in them all, but he can only utilize
such of them as have a volume and pressure sufficient to enable
him to transport the gas through his line and deliver it to tlie
purchaser. If no one of them has the requisite pressure, then
no one of them can be utilized ; the gas must be wasted, the cost
of the wells will be lost, and the lessor entitled to no royalty.
What is the proper way to develop and operate a gas lease is,
therefore, a question beset with some difficulty. Its settlement
requires some general knowledge of the business, and some
knowledge of the local field. The lessee may have a good well,
from which he can utilize the gas with profit. He may put
down another on the same farm, and thereby so reduce the
pressure in the first as wholly to destroy its value, without get-
ting a sufficient pressure at the second to enable him to utilize
that. The gas, if coming from one well, would be of great
value. Divided in such manner that the volume and pressure
at each is below the necessary standard, the whole is lost. Thus
the application of tbe rule laid down by the court below, as the
160 OIL AND GAS.
jury must have understood it, might result in this, that the ef-
fort of the lessee to discharge the implied obligation of his con-
tract for the common benefit, should end in the total destruction
of the leasehold, and a common misfortune. The mistake of
die court below was in failing to take account of and to read
into the contract between the parties, the peculiar nature and
characteristics of the business of producing and transporting
gas, which the parties themselves well understood, and which
their contract shows were before their minds when it was en-
tered into." ** So long, however, as the lessee sells gas from a
well, by running it into pipes connected with it, it is conclusive
evidence of the right of the lessor to recover rent.'*^ A gas well
that supplies five stoves, one grate, three jets, and two street
lights produces gas in paying quantities, where, after the quan-
tity is known, all parties thereto join in or assent to the laying
of pipe for its use and the expenditure of money for such ma-
terials and work.**'
§137. Abandonment.
The distinction between an abandonment and a forfeiture is
often so thin as not to be distinguishable. And yet, broadly
speaking, there is a difference, which may in a measure be
stated thus : An abandonment rests upon the intention of the
lessee to relinquish the premises, and is therefore a question of
fact for the jury ; ^'^ while a forfeiture does not rest upon an
intent to release the premises, but is an enforced release. The
act that authorizes the declaration by the lessor of a forfeiture
may be unintentionally, or unavoidably, committed by the lessee,
\i^ith no design to relinquish his lease, and yet will work a for-
*4 McKnight v. Manufacturers', 4g Herrington v. Wood, 6 Ohio Cir.
etc., Co., 146 Pa. St. 185; 23 Atl. Ct. Rep. 326; 3 Ohio Cir. Dec. 475.
Rep. 164; 28 Am. St. Rep. 790; In- 47 Beatty v. Gregory, 17 la. 109;
dianapolis Gas Co. v. Teters, 15 Ind. Bartley v. Phillips, 165 Pa. St. 325;
App. 475; 44 N. E. Rep. 549. See 30 Atl. Rep. 842; Whitcomb v. Hoyt,
Glasgow V. Chartiers Oil Co., 152 30 Pa. St. 403; Calhoon v. Neely,
Pa. St. 148; 25 Atl. Rep. 232. 201 Pa. St. 97; 50 Atl. Rep. 967;
45Hankey V. Kramp. 12 Ohio Cir. Lowther Oil Co. v. Miller-Sibley
Ct. Rep. 95; 5 Ohio C. D. 439. Oil Co. (W. Va.) 44 S. E. Rep. 433.
DURATION OF LEASE. 161
feiture. It, however, matters little to the lessee or lessor, for
in either instance he loses his lease and his term is ended.
Whether or not a lease has been abandoned is a matter of de-
fense, and need not be negatived by the plaintiff in an action
for the rent.*^ If the lessee in fact abandon the lease for the
purpose for which it was granted, it is not necessary for him
to yield up actual possession of the surface, to enable the lessor
to declare an abandonment has been made.*^ Rent falling due
or accruing before abandonment must be paid.^° The lessee
cannot abandon a part of the premises and retain a part ; to
render his act of abandonment effectual he must abandon the
whole premises and all his rights under the lease.^^ If the
lessor acquiesce in the temporary or other cessure of work for a
period extending beyond the time when the work was to have
been completed, he cannot because of each cessure, especially
where the lessee has resumed operations at a considerable ex-
pense to himself, insist that there has been an abandonment.^^
" As against any one but the grantor, an abandonment is not
complete until the statutory period of limitation or the end of
the term granted, and possession may be resumed by the grantee
at any time previous." ^^ A privilege to mine for gokl that is
a personal privilege,, is terminated by abandonment by the per-
son to whom it was given."''* If the lease be once abandoned,
the lessee cannot resume operations under it, without the con-
sent of the lessor.^^ Expenses of a grantee in drilling wells
after abandonment and notice by the lessor not to drill them can-
not be recovered from the grantor.^"
48 McDowell V. Hendrix, 67 Ind. 52 Riddle v. Mellon, 147 Pa. St.
513. 30; 23 Atl. Rep. 241.
*9 Eaton V. Allegany Gas Co., ss Bartley v. Phillips, 165 Pa.
122 N. Y. 416; 25 N. E. Rep. 981; St. 325; 30 Atl. Rep. 842; Bartley
reversing 42 Hun 61; Gadbury v. v. Phillips, 179 Pa. St. 175; 36 Atl.
Ohio, etc., Gas Co. (Ind.), 67 N. E. Rep. 217. See Eaton v. Allegany
Rep. 249. Gas Co., 122 N. Y. 416; 25 N. E.
50 Buhl V. Tliompson, 3 Penny Rep. 981 ; reversing 42 Hun 61.
(Pa.) 267. See Smiley v. Western, s* Hodgson v. Perkins, 84 Va.
etc., Co., 138 Pa. St. 576; 27 W. N. 706; 5 S. E. Rep. 710.
C. 230; 21 Atl. Rep. 1. 55 Cole v. Taylor, 8 Pa. Super. Ct.
51 Bestwick v. Ormsby Coal Co., Rep. 19.
129 Pa St. 592; 18 Atl. Rep. 538. 5g Detlor v. Holland, 57 Ohio St.
162 OIL AlS^D GAS.
§138. Lessee may abandon non-productive premises.
As the object in leasing- oil or gas premises is to secure the oil
or gas beneath the surface, as soon as it has been demonstrated
that no oil, in case of an oil lease, or no gas, in case of a gas
lease, is beneath the surface, or it does not exist in paying quan-
tities, the lessee may abandon the premises or his lease ; or if the
oil or gas becomes exhausted he may in like manner abandon
them. This is true of other minerals. Thus where a lease re-
quired the lessee to mine at least a certain quantity of iron ore
each year and pay a royalty thereon, or even if not mined pay
the royalty, it was held that if the ore become exliausted during
the term the lessor was not thereafter entitled to royalties.^^
And the same is true if the mineral is not merchantable; for it
cannot be understood that the parties contemplated the mining
of unmarketable ore.^^ Where a lessee covenanted to pay so
much for each ton of coal mined, and for any period of three
years after the first the aggregate royalty should not be less than
ten thousand dollars, whether ore to that extent was mined or
not, it was held that the lessee could show as a defense, when
an action was brought to recover the royalty due for the second
period of three years, that the ore contained in the leased prem-
ises was not sufficient in quantity to produce the amount of rent
or royalty claimed by the lessor, and that too even though judg-
ment for the rent due on the first period of three years had been
recovered. ^'^ But an absolute agreement to pay for so much
coal, whether there is coal or not, will defeat a defense that there
was no coal on the leased premises.*^"
492; 49 N. E. Rep. 690; 39 Wkly. 66 Iowa 21; 23 N. W. Rep. 159.
.-TL. Bull. 187. Contra, Clark v. Midland, etc.. Co.,
57 Hewitt Iron Mining Co. v. Des- 21 Mo. App. 58; Indianapolis, etc.,
sau Co., 129 Mich. — ; 89 N. W. Co. v. Teeters, 15 Ind. App. 475; 44
Rep. 365. N. E. Rep. 549.
St. 138; 9 Atl. Rep. 144. See John- 59 Kemble Coal and Iron Co. v.
ston V. Cowan, 59 Pa. St. 275 ; Grib- Scott. 90 Pa. St. 332 ; Boyer v. Fiil-
58 Muhlenberg V. Herining, 116 Pa. mer, 176 Pa. St. 282; 35 Atl. Rep.
ben V. Atkinson. 64 Mich. 651; 31 235. See McCahan v. Wharton, 121
N. W. Rep. 570; Cook v. Andrews, Pa. St. 424; 15 Atl. Rep. 615.
36 Ohio St. 174; Brick, etc., Co. v. 6o Timlin v. Brown, 158 Pa. St.
Pond, 38 Ohio St. 65; Read v. Beck, 606; 28 Atl. Rep. 236.
DURATION OF LEASE. 163
§139. Completion of non-productive well. — Title.
So thoroughly fixed in the law of oil or gas leases is the prin-
ciple that if the leased premises prove non-productive no title
to them vests in the lessee, that the completion of a non-pro-
ductive well, even though at great expense, will not vest a title
to such premises in the lessee.*'^
§140. Instances of abandonment.
Ceasing to operate a coal mine, and removing the machinery
and appliances, was held a sufficient abandonment, without a
surrender of tlie lease or cancellation of mortgages of the lease-
hold that were on record."" Where a lease of a coal mine was
given in 1858, a rental to be paid per annum on a minimum
amount of coal ; but the lessee, thinking the mines not worth
working, never went on the lands, and in 1871 ceased paying
rent, it was held that in 1879 the lessor had a right to consider
the premises abandoned and to relet them.'^^ Where a coal
lease requires the lessee, in case he abandoned the premises, to
notify the lessor, it is immaterial whether or not he gives such
notice, if he in fact abandon them ; and finding quantities of
coal that will not justify mining it will not change the rule.*^*
Where a lease was executed in 1878, for oil and gas, but the
lessees never entered upon the premises, because of the fact they
had drilled a well near the leased premises which proved to be
a dry well ; and twelve years afterward the premises having be-
come valuable by reason of other territory in the neighborhood
proving to be good for oil, when the lessees claimed the leased
premises, it was held that by their conduct they had not only
abandoned but surrendered the premises.*^''' A lease was given
61 hteelsmith v. Gartlan, 45 W. 62 Van Meter v. Chicago, etc., Co.,
Va. 27; 29 S. E. Rep. 978; 44 L. R. 88 Iowa 92; 55 N. W. Rep. 106.
A. 107; Barnhart v. Lockwood, 152 63 Porter v. Noyes, 47 Mich. 55;
Pa. St. 82; 31 W. N. C. 209; 25 Atl. 10 N. W. Rep. 77.
Rep. 237; Detlor v. Holland, 57 e* East Jersey Co. v. Wright, 32
Ohio St. 492; 49 N. E. Rep. 090; N. J. Eq. 248.
Huggins V. Daley, 99 Fed. Rep. 606; 65 Barnhart v. Lockwood, 152 Pa.
48 T. R. A. 320. St. 82; 25 Atl. Rep. 237.
164 OIL AND GAS.
" for the sole and only purpose of mining and excavating for pe-
troleum, or carbon oil, gas, or other valuable mineral or volatile
substances," for twenty years, the consideration being one-
eighth of the product. It provided that " the party of the sec-
ond part covenants to commence operations for said mining pur-
poses within six months ... on some one of the farms
leased . . . and when oil is found in paying quantities,
then he agrees to commence operations wathin sixty days upon
the next adjoining farm leased by him, and so on until all
lands (hereby) leased in the township are tested to success or
abandonment." The lessee began operations and drilled a well
on another farm, but found neither oil nor gas. He made no
further effort to test the land, for the reason that he thought the
territory was worthless as oil land. Six years after the lessor
gave a second oil lease on the territory to a third party. It
was held that the last lease was valid, because the first one had
been abandoned."'' An oil lease provided that the lessees "' shall
have the right at any time to surrender up this lease, and be
released from all money due and conditions unfulfilled." It
gave the lessor no right to rescind. There was no express
covenant on the part of the lessees to develop the land ; but they
agreed to bore a well or pay one hundred dollars a month if they
did not. The lessees never took possession of the land. On the
trial it was shown that after the first two payments had been
made, two of the three lessees requested of the lessor for time
on the third monthly payment; and it was agi'eed that th©
time should be extended three weeks, and if the rent by that
time was not paid, they should surrender the lease. The money
was not paid as agreed ; and one of the lessees told the lessor
■^hat he could lease the property to any one, and that the lease
would be returned. It was never redelivered. Sixteen months
afterward the owner executed a second lease of the premises to
a third party. It was held that there had been a rescission of
the lease ; and a tender of the monthly rental after the rescission
could not revive the lessees' rights or privileges.*'^ Of cour.^e,
ofi Venture Oil Co. v. Fretts, 152 b^ Hooks v. Forst, 165 Pa. St.
Pa. St. 451; 25 Atl. Rep. 732; 31 238; 30 Atl. Rep. 84G.
W. N. C. 432.
DUEATIOX OF LEASE. 165
after the lessee has abandoned the lease the lessor is no longer
bound. "^^ A lease on a royalty of so much per ton, on coal
mined, of coal lands for ninety-nine years is abandoned where
nothing is done by the lessee for seventeen years f^ and so for
eleven years.'** Under a five-year lease, or as long as gas and
oil may be found in paying quantities, and a conveyance to the
lessee of a part of the land is made, in the deed of conveyance,
it being provided that it shall not affect the rights of the gi-antee
under tlie lease and tliat a certain payment shall be in full pay-
ment of all the lease rental and royalty thereunder until the time
when other wells are drilled and the product taken from them —
the lessee cannot begin operations on the land not conveyed after
the expiration of five years.'^^ A lease was given for ten years,
and as long thereafter as oil and gas were found in paying quan-
tities. The lessee was required to drill a well within one year.
Pie had the right to abandon the premises at any time, but the
abandonment was not to deprive him of the right to convey oil
and gas over the land from other lands, on an annual rental.
He completed a well on time, which was unproductive. Two
years after the lease was granted, he notified the lessor of his in-
tention to abandon the well ; drcAv the casing, and removed all
his machinery. Subsequently he drilled wells and conducted
operations at great cost in the vicinity, but made no search on
the leased premises. Five years after he abandoned his search,
the lessor requested him to surrender the lease, which he refused
to do, and afterwards recorded it. In an action involving its
validity, he testified tliat he had never intended to abandon the
lease; but the court held that a finding of abandonment was
justified by the evidence.^' A non-exclusive right to enter on
lands for mining purposes only and to pros]3ect thereon and
mine them, does not prevent tlie grantor and his grantees from
OS Cowan v. Radford Iron Co., 83 to Welty v. Wise. 5 Ohio N. P. 50.
Va. 547; 3 S. E. Rep. 120. ti Simon v. Northwestern Ohio,
caBluestone Coal Co. v. Bell, 38 etc.. Co., 12 Ohio Cir. Ct. Rep. 170;
W. Va. 297; 18 S. E. Rep. 493. Oil 5 Ohio C. D. 456.
lease abandoned by twenty years' 72 stage v. Boyer, 183 Pa. St.
non-user. Wagner v. Mallory. 41 560; 38 Atl. Rep. 1035; Heintz v.
N. Y. App. Div. 126; 58 N. Y. Supp. Shortt, 149 Pa. St. 286; 24 Atl.
c26. Rep. 316.
166 OIL AND GAS.
prospecting and mining on the same land ; and no presumption
of an abandonment of the first right granted arises from the
fact that similar rights were exercised by tlie grantor and his
grantee." If a lease requires that the work of testing a well
shall be prosecuted with due diligence, a cessure of operations
for three months after work begun is an abandonment of it.^*
§141. Cessure of work after operations begun.
A cessure of work will operate as a termination of a lease
by abandonment, especially where tlie first or second well proves
to be a dry one. Thus where a lease was for ^' fifteen years, and
as much longer as oil or gas is found in paying quantities " ;
and the lessee erected a " rig," drilled a test well, but obtained
no oil ; and thereupon removed the machinery used in drilling,
leaving nothing but a wooden tank, which rotted, asserting no
title to the premises for nine years, when other lessees found oil
in paying quantities, it was held that the first lease had been
terminated by an abandonment.^^ But a tem]X)rary suspension
after the well has been sunk, which proves a dry one, while
awaiting further developments in the vicinity, will not operate
as an abandonment of the lease.^'' A cessure for two years,
73 Woodside v. Ciceroni, 93 Fed. 75 Calhoon v. Neely, 201 Pa. St.
Rep. 1; 35 C. C. A. 177. 97; 50 Atl. Rep. 967; Barnhart v.
74 Kennedy v. Crawford, 138 Pa. Loekwood, 152 Pa. St. 82; 31 W. N.
St. 561; 21 Atl. Rep. 19; Monroe C. 209; 25 Atl. Rep. 237; McXish
V. Armstrong, 96 Pa. St. 307; Steel- v. Stone, 152 Pa. St. 457; 23 Pittsb.
smith V. Gartlan, 45 W. Va. 27; 29 L. J. (N. S.) 232 Rorer Iron Co. v.
S. E. Rep. 978; 44 L. R. A. 107; Tront. S3 Va. 397; 2 S. E. Rep. 713;
Hviggins V. Daley, 99 Fed. Rep. 606 ; Gadbury v. Ohio, etc., Gas Co.
48 L. R. A. 320. (Ind.). 67 X. E. Rep. 249; Ameri-
^ See also Coffinberry v. Sun Oil can ^^Mndow Glass Co. y. Williams
Co. (Ohio), 67 N. E. Rep. 1009. (Ind. App.), 66 N. E. Rep. 912.
Where a lessee of a coal mine The lessees " were not bound to
left his tools on the premises for do more than make a reasonable
two years, but did not work the search for oil, but they were bound
mine, it was held he had not aban- to operate or quit; they could not
doned the mine, nor had he aban- hold or quit." Munroe v. Arm-
doned stone he had quarried and strong, 96 Pa. St. 317; Ray v. Nat-
left on the ground. Russell v. ural Gas Co., 13S Pa. St. 576; 20
Stratton, 201 Pa. St. 277; 50 Atl. Atl. Rep. 1065: 12 L. R A. 290.
Rep 975. "" Baumgardner v. Browning, 12
DURATION OF LEASE. 167
although oil has been found in paying quantities, will work in
equity a forfeiture of the lease.^^ Where a lease was to run
fifteen years in consideration of a payment of fifty dollars, and
one-eightli of the oil obtained ; and the lessee covenanted to begin
operations to secure oil " so as to complete the first well within
six months from " the date of the lease, or thereafter within
sixty days to remove all the machinery and buildings he had
placed on the premises ; and the lease provided that the lease
should " be declared null and void unless further prosecuted
after the first well drilled," and that the " time of getting oil "
was of the " essence of the lease," it was held that such lease
had become void, where one well had been drilled witliin tlie
stipulated time, but thereafter no operations for mining pur-
posses were prosecuted on the land during several years/^ The
fact that the cessure of work or operations was induced by the
inclemency of the weather is no excuse/® Although a well be
commenced on time, yet if it be not completed on time, the lease
will terminate.®*' If a well be drilled and oil found, though, the
lessee remove the casing and plug the well, the well is considered
-completed.®^ If the lease require work to be commenced within
a certain time, and yet does not provide when a well shall be
completed, yet the lessee may not suspend work after he has
commenced drilling, but must push the work with ordinary dili-
gence until tlie well is completed, either as a dry or producing
well. So, too, if he is to begin the development of the leased
premises by a certain time, he must prosecute the work in the
manner in which tbe business is ordinarily carried on and with
ordinary diligence until the search for oil or gas is ended, either
by finding it, and thereafter operating the premises, or by
Ohio Cir. Ct. Rep. 73; 5 Ohio C. D. so Cleminger v. Baden Gas Co.,
394. 159 Pa. St. 16; 28 Atl. Rep. 293.
"7 Cole V. Taylor, 8 Pa. Super. Time is of the essence of all con-
Ct. Rep. 19; Crawford v. Ritchie, tracts relating to mining property.
43 VV. Va. 252; 27 S. E. Rep. 220. Waterman v. Banks. 144 U. S. 394;
T'^Heintz v. Shortt. 149 Pa. St. 12 Sup. Ct. Rep. 646; Island Coal
286; 24 Atl. Rep. 316. Co. v. Combs, 152 Ind. 379; 53 N.
■^9 Cryan v. Ridelspergen, 7 Pa. Co. E. Rep. 452.
Ct. Rep. 473; Steelsmith v. Gart- si Stahl v. Van Vleck. 53 Ohio St.
Ian. 45 W. Va. 27; 29 S. E. 978; 44 136; 41 N. E. Rep. 35.
L. R. A. 107.
168 OIL AND GAS.
demonstrating that there is no oil or gas, and surrendering the
leased territory.^' It is more especially true that the lessee
must proceed to develop the territory if, after reaching oil or
gas bearing rock, there be strong indications of oil or gas.®^
§142. Surrender.
A surrender involves the yielding up of the lease or the
premises. It implies an action on the part of the lessee. If
the lease does not give the lessee the right to surrender it or the
premises, then an acceptance of it by the lessor, or at least an
acquiescence that implies an acceptance, is essential to complete
the act of surrender. But if the lease gives the lessee the right
to make the surrender, then, of course, acceptance by the lessor
is immaterial.^* If the lessee retain and use the premises after
he has delivered to the lessor a deed of release and surrender,
he will be liable for the rents and royalties he was to pay under
the lease. ^^ Where the lessee has the right under the lease to
rescind it at any time, he may surrender the premises by parol.'*"
Wliere a lessee ceased to work a coal mine, said he would do
nothing more under the lease, completely dismantled the mine,
82McNish V. Stone, 152 Pa. St. under the contract. Paine v. Grif-
457; 23 Pittsb. L. J. (N. S.) 232; fiths, 86 Fed. Rep. 452.
Ray V. Natural Gas Co., 138 Pa. St. Cessnre of work for three months
576; 20 Atl. Rep. 1065; 12 L. R. A. has been held to be an abandon-
290. ment. Kennedy v. Crawford 138
83 Kennedy v. Crawford. 138 Pa. Pa. St. 561 ; 21 Atl. Rep. 10. Sec
St. 561; 21 Atl. Rep. 19; Lowther Monroe v. Armstrong, 9G Pa. St.
Oil Co. V. Miller-Sibley Oil Co. (W. 307; Steelsmith v. Gertlan, 45 W.
Va.) 44 S. E. Rep. 433. Va. 27; 29 S. E. Rep. 978; 44 L.
Where a lease provided that if the R. A. 107; Huggins v. Daley, 99
Jessee did not "commence a test oil Fed. Rep. 606; 48 L. R. A. 320.
or ffas well" at a certain place "or ^4 Rarnhart v. Lockwood. 152 Pa.
vicinity in ninety days, this lease St. 82; 25 Atl. Rep. 237; McKinney
to be void," it was held that a test v. Reader, 7 Watts (Pa.) 123;
well having been completed on time Whitcomb v. Hoyt, 30 Pa. St. 403.
and oil secured, the immediate with- sr, Bestwick v.- Ormsby Coal Co.,
drawing of the casing and plugging 129 Pa. St. 592; 18 Atl. Rep. 538.
the well did not terminate the lease. s" Hooks v. Forst, 165 Pa. St.
Stahl V. Van Vleck. 53 Ohio St. 136; 238; 30 Atl. Rep. 846; Cochran v.
41 X. E. Rep. 35. Shenango. etc., Co., 23 Pittsb. Leg.
An abandonment of the lease in- J. (N. S.) 82.
eludes an abandonment of all rights
DURATION OF LEASE. 169
moved off all the mining apparatus, and left the mine in such a
condition that it would even become valueless by caving in, and
three months afterward again entered on the premises against
the protest of the lessor and forcibly attempted to sink a shaft
outside of the limits of shafts specified in the lease — it was
held that these facts showed a surrender by mutual agi^eement.'^^
A surrender of the lease releases the lessee from all liability
thereafter (though not from liability for past rents, or possibly
damages) ; and the surrender will be binding on both lessor and
lessee ; and also upon the heir. If an heir accept the surrender
of the lease, it will bind his co-heirs, even though they be
minors, if for their benefit. ^^ The assignee of a lease may sur-
render it, but the surrender will not release him from a liability
to the assignor assumed in the assignment, as a payment of so
much for each producing well drilled.*^ If the lessor only had
a life estate, and at his death the remainderman offers to con-
tinue the lease on the same terms, the lessee cannot surrender
the lease before the term for which it was given has expired.^''
A lease may be surrendered after suit brought to cancel it, by
way of a compromise ; and a purchaser of a majority of the
stock of the lessee, (with knowledge of the compromise, at
least) will be bound thereby. ''^
§143. Surrender by substitution of tenants or assignment of lease.
Without discussing whether a surrender must be evidenced
by a writing, that having been discussed elsewhere, we will
take up the question in this section of a surrender by substi-
tution of tenants and to instances of an assignment of the lease
87 Worrall'v. Wilson, 101 la. 475; Tex Civ. App. 534; 56 S. W. Rep.
70 N. W. Rep. 619. 429.
R8 Wilson V. Goldstein, 152 Pa. In Heller v. Dailey. 28 Ind. App.
St. 524; 25 Atl. Rep. 493. 555; 63 N. E. Rep. 490, a surrender
89 Smith V. Munhall, 139 Pa. St. of a grant by a land owner to an-
253; 21 Atl. Rep. 735. other of "all the oil and gas in and
90 Lake Erie, etc., Co. v. Patter- vmder " a certain tract of land, and
son, 184 Pa. St. 364; 39 Atl. providing penalties for delay in the
Rep. 68. drilling of the wells, it was held
91 Southern Oil Co. v. Wilson, 22 could not be made unless in writing.
170 OIL AND GAS.
by the lessee to third persons, the latter Tisiially, if not always^
being evidenced by a writing. And it may be stated generally,
that if the laws will imply a surrender in a given instance, it
is reasonably clear that the implication will arise from the acts
of the parties, and need not be based upon proof of an oral
agreement between the lessor and lessee. " The one, whether
lessor or lessee, against whom such a surrender is asserted by
the other, must have been a party to some action from which a
surrender may properly be presumed by the court. The sur-
render should be indicated by acts." ^- " If the lessee assign to
a third person and the lessor accept rents from the assig-nee in
peaceable possession, it may be presumed from this act of the
lessor in accepting the rent due from his lessee through the hands
of another in possession, that the lessor asquiesces in the assign-
ment, but such conduct does not necessarily indicate that the
lessor has been a party of the creation of a new tenancy. Such
facts may constitute evidence of an assignment but not of a sur-
render, and if a surrender may be established by the further
proof of a parol agreement between the lessor and the lessee,
to which the assignee was not a party, this would be basing the
essential fact constituting the surrender upon parol evidence of
an express contract, and not deriving it by act and operation
of law." "^ It therefore follows that a plea alleging that the
lessee entered into negotiations with a third party named, and
notified the lessor, who encouraged the lessee to sell and assign
the lease to a third party, and therefore the lessee duly assigiied
and conveyed the lease to such third party, who entered upon
the demised premises and was duly accepted as his tenant, and
that the lessor collected rent from the assignee and recovered a
judgment for rent which afterwards fell due, is insufficient, for
it needed an averment that the assignee was substituted in place
of the original lessee, with intent on the part of the parties to the
demise to annul the obligation of the lease.''* An assigniment of
the lease by the lessee does not release him from his liability to
82 Heller v. Dailey, 28 Ind. App. 93 Heller v. Dailey. supra.
555; 63 N. E. Rep. 490: Parish Fork 94 Creveling v. De Hart, 54 N. J.
Oil Co. V. Bridgewater Gas Co., 51 L. 338; 23 Ail. Rep. 611.
VV. Va. 583; 42 S. E. Rep. 655.
DURATIOX OF LEASE. 171
pay the rent due under it, even though the lessor collect rent
from the assignee, and these acts, of course, are not equivalent
to a surrender. ^^ " Xor did the sale of the saloon by the tenant
to Ruse," in the language of one court, " nor the taking of posr
session by Ruse, nor the acceptance of rent from the latter by
the landlord, operate as a discharge of the grantors. The as-
signee of a leasehold estate is liable for the rent according to
the terms of the lease, and the fact of his liability after the
assignment' does not discharge the lessee from his covenant to
pay rent. In case the rent is not paid by the assignee as it be-
comes due, an action may be sustained against the lessee there-
for; and it makes no difference, in this respect, that the lessor
may have received rent from the assignee, and accepted him as
tenant of the premises.''*' Where there is an express covenant
to pay rent for a term of years, the mere acceptance of rent by
the lessor from tlie assignee of the lessee does not discharge the
lessee.®^ The contract of the latter continues in force, notwith-
standing he may have parted with his interest in the estate,
unless the lessor enters into such stipulations with the assignee
as to accept him as sole tenant and absolve the original lessee.
If there be not a substitution of the assignee in place of the
original lessee, and a clear intent to make a new contract with
the former to discharge the latter from further liability under
the lease, both will be held liable to the lessor." ^^ In order to
prove a surrender, however, it is not necessary to show an ex-
press contract between the lessor and lessee ; but it must be
shown that the landlord by his conduct, as l^etween himself and
the assignee, " does not hold the latter merely to the obligation
of an assignee of the term in possession, but has assumed an
05 Frank v. Magruire, 42 Pa. St. Reed, 6 Allen 364; Hoerdt v. Ha line,
77; Sanders v. Sbarp, 153 Pa. St. 91 III. App. 514; Detroit Pharmacal
555; 25 Atl. Rep. 524. Co. v. Burt. 124 Mich. 220; 82 N.
90 Citing Shaw v. Partridge, 17 W. Rep. 893; Charles v. Froebel,
Vt. 626. 47 Mo. App. 45; Levering v. Lang-
s' Citing Harris v. Heackman, 62 ley, 8 Minn. 107 ; Lyon v. Reed, 13
la. 411; 17 N. W. Rep. 592. M. and W. 285; Lynch v. Lynch, 6
98Groinmes v. St. Paul Trust Co., Irish L. R. 131; Lewis v. Brooks, 8
147 HI. 634; 35 N. E. Rep. 820; 37 U. C. Q. B. 576.
Am. St. Rep. 248. See also Way v.
172 on. AND GAS.
attitude inconsistent with the continuance of the contract rela-
tion between him and the original lessee, and has treated the
assignee as his own tenant by substitution." °^. The taking of
a new lease from a third party, or even from the first lessee,
and putting tlie new lessee in possession of the premises, is a sur-
render, and nothing farther is required to make it effectual. ^*^**
§144. Parol surrender.
If the written instrument, under which tlie lessee or grantee,
or by whatever name he is designated, grants or gives an interest
in the land, then, as we have seen, the surrender must be in writr
ing ; ^°^ but if it be a mere lease, not under seal, although writ-
ten and not giving an interest in the land, then it may be surren-
dered and released by parol. ^""
§145. Payment of rental instead of developing premises.
Ajs a general rule a lessee cannot prolong the life of a lease by
the mere payment of rental,^"^ especially where he has a certain
period within which to develop it. Thus where the lease was
for two years " and as much longer as oil or gas is found in pay-
ing quantities or the rental paid thereon," and it provided for
a rent of one-eighth of the oil and two hundred and fifty dollars
a' year for the gas, and required one well to be completed within
a month or fifteen dollars per month to l>e paid in advance for
the delay until one well should be completed ; and it also pro-
99 Heller v. Dailey, supra. only for not drilling a well within
100 Coe V. Hobby, 72 N. Y. 141. a certain prescribed time, a lessee's
101 Heller v. Dailey, 28 Ind. App. failure to give a written notice of
555; 63 N. E. Rep. 490. the termination of the lease was
- 102 Donahoe v. Rich, 2 Ind. App. held not to render him liable for the
540; 28 N. E. Rop. 1001; Rhodes v. penalty provided for not drilling a
Thomas, 2 Ind. 638 ; Ward v. Wal- well within such time. May v. Ha-
ton, 4 Ind. 75; Knarr v. Conaway, zelwood Oil Co., 152 Pa. St. 518;
42 Ind. 260; Stockton v. Stockton, 25 Atl. Rep. 564.
40 Ind. 225; Wood L. and T., Sec. lo 3 Brown v. Fowler, 65 Ohio St.
402; Ter.stegge v. First German, 507; 63 N. E. Rep. 76; Gadbury v.
etc., 92 Ind. 82; Parish Fork Oil Co. Ohio, etc., Co. (Ind.), 67 N. E. Rep.
v. Bridgewater Gas Co., 51 W. Va. 259; American Window Glass Co.
583; 42 S. E. Rop. 655. v. Williams (Ind. App.), 66 N. E.
Where a ]ion;ilty was imposed Rep. 912.
DURATION OF LEASE. 173
vided that a failure to complete one well or maJvC siidi pay-
ments for the delay should render the lease void, at the option
of the lessor, it was held that it did not give the lessee a right
to continue the lease by paying the fifteen dollars per month
after the expiration of two years, after the beginning of opera-
tions.^""' Where a lease was given for two years, and if no
^vell w^as drilled witliin twelve montlis it was to become void,
unless the lessee paid for furtlier delay at the rate of one dollar
per acre at or before the end of the second year, it w^as held tliat
the payment of one dollar per acre did not extend the lease be-
yond the two years; and no oil having been found within two
years, tlie right to drill for oil ceased.^**^ But in Pennsylvania
where a lease provided that the lessee had ^' the option to drill
the well or not, or pay said rental or not, as he may elect," it
was held that the lease did not give the lessee the option to pay
a periodical rental, as w^as provided in the lease, or drill a well
if it so pleased him, but he was bound to either drill a well and
so pay no rental, or pay the rental and not be compelled to drill
the w^ell. '' It is not for the lessor," said the court, '^ but it
is for tlie lessee to elect wdiich he wall do. This option was
deducible from the stipulations of the lease, but the parties
chose to put it in words and m.ake it a part of the contract.
The contention of the defendant destroys the character of the
whole contract. It makes the lessee say that he will drill a well
104 Bettman v. Harness, 42 W. Va. privilege of operating the wells was
433; 26 S. E. Rep. 271; 36 L. R. given so long as they produced oil
A. 566 ; a similar decision in Penn- or gas in paying quantities. The
sylvania was rendered; Western agreement further provided that if
Pennsylvania Gas Co. v. George, 161 no gas well was drilled on the prem-
Pa. St. 47; 34 W. N. C. 332; 28 Atl. ises within five years it should be
Rep. 1004. See also Detlor v. Hoi- void, unless the lessee elected from
land, 57 Ohio St. 492; 49 N. E. Rep. year to year to continue it by pay-
690. ing $40 each year in advance until
105 Brown v. Fowler, 65 Ohio St. a well was completed on the prem-
507; 63 N. E. Rep. 76. ises. It was held that this was a
Upon a sufficient consideration grant of a term for ten years, con-
the owner .of land gave a lessee the ditioned on the payment of $40 per
exclusive right for ten years to en- year in advance after the expira-
ter on such land and prospect for tion of the first five years? Mon-
oil and gas; and if oil or gas was fort v. Lanyon Zinc Co. (Kan.) 72
found in paying quantities, the Pac. Rep. 784.
174 OIL AND GAS.
witliin a given time, or, failing to do so, that he will pay a
monthly rental, but that he will do neither unless it pleases him ;
and if he does neitlier he shall be liable in no manner for his
breach of contract. Such a construction is so unjust and ab-
surd that the words relied upon as requiring it must be plain
and unambiguous, and must be incapable of an exposition in
harmony with the body of the contract before we can consent to
adopt it." ''^
§146. Recision for fraud.
An oil or gas lease may be terminated or rescinded for fraud ;
but a very strong case must be made out to secure a recision.
A representation that undeveloped land contains oil or gas is
regarded as a matter of opinion, and the purchaser is bound
so to understand it; because of the uncertainty attending all
mining operations for gas or oil.^"'^ But if the grantor or lessor
actually knows that no oil or gas lies beneath the surface, or if
he has taken active steps to produce a false impression derived
from an examination of the premises — (as in "salting" a
silver or gold mine) — then the representations are more than
an opinion, and if false, and they induce the sale or acceptance
of a lease, then siich a fraud will authorize a recision of the
contract of purchase or acceptance of the lease. ^"^
106 McMillan v. Philadelphia Co., Window Glass Co. v. Williams (Ind.
159 Pa. St. 142; 28 Atl. Rep. 220. App.). 66 N. E. Rep. 912.
A failure on the part of the lessee iot Holbrook v. Connor, 60 Me.
lor two years to develop the prem- 578 ; Gordon v. Butler, 105 U. S.
ises, aft&r drilling a well, finding 553 (a case of stone),
gas, and then closing it. prima facie los Mudsill Mining Co. v. Wat-
authorizes the lessor, who was to be rous, 61 Fed. Rep. 163; 9 C. C. A.
paid $100 per annum for each well 415; as to placing in statu quo, see
while gas was being used off the Reeves v. Corning, 51 Fed. Rep. 74;
premises, without demand, to treat Billings v. Alfsen Mining, etc., Co.,
the grant as abandoned. Gadbury 51 Fed. Rep. 338; Thackarah v.
V. Ohio, etc., Gas Co. (Ind.), 67 N. Haas, 119 U. S. 499; 7 Sup. Ct. Rep.
E. Rep. 259. See also American 311; Gross v. Scott. Mfg. Co., 48
Fed. Rep. 35.
CHAPTER V.
FORFEITURE OF LEASE.
§147. Forfeiture not a favorite of the law.
§148. Rule in gas or oil leases.
§149. History of change in rule giving lessor exclusive right to declare
a forfeiture.
§150. Forfeiture favored by equity when it will promote justice.
§151. Lessor only can declare forfeiture.
§152. Heirs or assignees of lessor may declare forfeiture. — Assignee.
§153. Stranger cannot avail himself of forfeiture.
§154. Lease may be voidable at election of lessee on his default, sur-
render.
§155. Lessee cannot insist on forfeiture to escape rent.
§156. Forfeiture clause omitted.
§157. Implied covenants do not authorize forfeiture.
§158. Notice of election to declare forfeiture.
§159. Waiver of forfeiture.
§160. Waiver of forfeiture by accepting payment.
§161. Eviction of lessee.
§162. Failure to operate and not for failure to develop.
§163. Continuance of operation.
§164. Production of gas will not prevent forfeiture of an oil lease.
§165. Covenant uncertain.
§166. Re-entry.
§167. Release of premises equivalent to a re-entry.
§168. Surrender after assignment. — Forfeiture.
§169. Forfeiture of only part of lease.
§170. Partial development. — Abandonment.
§171. Lessee draining leased premises by wells on adjoining territory.
§172. Lessee draining away oil by sinking wells on adjoining premises.
§173. Inability to complete work.
§174. ]\Iortgage of leasehold may work a forfeiture.
§175. When work must be completed.
§176. Excavating for oil means bringing it to the surface.
§177. Failuie to pay royalties or to report tliem.
§178. Payment of rent will not prevent forfeiture for neglect to develop.
§179. ]\Iust pay rent although no oil on premises.
§180. Lessee must pay past rents. — Damages.
§181. Lessor consenting to abandonment.
175
176 OIL AND GAS.
§182. Estoppel of lessor.
§183. Demand for compliance with lease.
§184. Abandonment a question of intention.
§185. Forfeiture a question for jury.
§186. Suit to cancel lease for non-development of territory.
§187. Relief from forfeiture.
§188. Time to avoid forfeiture.
§189. Lessee cannot recover premises after forfeiture.
§190. Reimbursement for expenses.
§191. Removal of fixtures and machinery.
§192. Damages instead of declaring a forfeiture.
§147. Forfeiture not a favorite of the law.
In thousands of decisions it has been declared that " for-
feiture is not a favorite of the law." ^ " Conditions that work
forfeitures," said the Supreme Court of Pennsylvania, '' are
not favorites of the law ; and nothing less than a clear expression
of intention that a provision shall he such will make it a con-
dition upon which the conti.-*<ancc of an estate granted de-
pends." "
§148. Rule in gas or oil leases.
Forfeitures, however, on the part of the lessee in a gas or oil
lease, which arise by reason of his neglect to develop or operate
the leased premises, are rather favored by tlie law, because ( f
the peculiar character of the product to be produced.^ The re?.-
sons for this have been well stated in a Pennsylvania case as
follows :
" The discovery of petroleum led to new forms of leasing
land. Its fugitive and wandering existence within the limits of
1 Lauman v. Young, ,31 Pa. St. than to the lessee, see Edwards v.
,306. Tola Gas Co., 65 Kan. — ; 69 Pac.
2 IMcKnight v. Kreutz, 51 Pa. St. Rep. .350; and Gadbury v. Ohio, etc.,
2,32; Westmoreland, etc., Gas Co. v. Gas Co. (Ind.), 67 N. E. Rep. 2.59:
DeWitt, 130 Pa. St. 2,35; 18 Atl. American Window Glass Co. v. WM-
Rep. 724; 29 Am. L. Reg. 9.3; Hen- Hams (Ind. App.), 66 N. E. Rep.
derson v. Coal and Coke Co., 140 U. 912; Coffinberry v. Sun Oil Co.
S. 25; 11 Sup. Ct. Rep. 691. (Oliio) 67 N. E. Rop. 1069; Low-
■■* That a gas or oil lease is con- ther Oil Co. v Miller-Sibley Oil Co.
strued more favorably to the lessor (W. Va.) 44 S. W. Rep. 433.
/
FOKFEITURE OF LEASE. 177
a particular tract was uncertain, and assumed certainty only by
actual development founded upon experiment. The surface re-
quired was often small compared with the results when attended
with success; whilst these results led to a great speculation by
means of leases covering the lands of a neighborhood like a
flight of locusts. Hence it was found necessary to guard the
rights of the land owner, as well as public interest, by numer-
ous covenants, some of the most stringent hind, to prevent tlieir
lands from being burdened by unexecuted and profitless leases
incompatible with the right of alienation and the use of the land.
Without these guards, lands would be thatched over with oil
leases by subletting, and a farm riddled with holes and bristled
with derricks, or operations would be delayed so long as the
speculator would find it hopeful or convenient to himself alone.
Hence covenants become necessary to regiilate the boring of
wells, their number, tlie time of succession, the period of com-
mencement and of completion, and many other matters requir-
ing special regulation. Prominent among these was the clause
of forfeiture to compel |>erformance, and put an end to the lease
in case of injurious delay or a want of success. These leases
were not valuable except by means of development, unlike tlie
ordinary tenns for the cultivation of the soil or for the removal
of fixed minerals. A forfeiture for non-development or delay
therefore cut off no valuable rights of property, while it was
essential for the protection of private public interest in relation
to the use and the alienation of property. In the present case
the lease was modified by adding immediately after the clause
of forfeiture a stipulation that, should the lessee not commence
operation at a time specified, he should pay to the landlord
thirty dollars for each and every month until such time as
drilling should be commenced. The lessee, having paid for
three months' delay, suffered eleven months to elapse without
payment or tender, and then tendered the whole sum, Avhicli
the landlord declined to accept, and insisted on the forfeiture,
he in meantime having made a new lease to a party who went
into possession. The learned judge below held that the lease
was forfeited by the omission to pay the monthly sums, the
lessee having done nothing in performance of his covenants.
ITS • OIL AND GAS.
AVe cannot pronounce this to be an error, in view of the nature
of the lease, the true intention of the clause of forfeiture, and
the want of any valuable interest acquired by the lessee, by per-
formance. That time may be made of the essence of the con-
tract by the express agreement of the parties has been so often
decided that no citation of authority is necessary. In a case
like this equity follows the law, and will enforce the covenant
of forfeiture, as essential to do justice. It is true as a general
statement that equity abhors a forfeiture ; but this is when it
works a loss that is contrary to equity, not when it works equity,
and protects the land owner against the indifference and laches
of the lessee, and prevents a great mischief, as in the case of
such lessees. To perpetuate an oil lease forever by the pay-
ment of a monthly sum, as here, at the will or caprice of the les-
see, would work great injustice. The covenant of forfeiture
was not abrogated entirely, but only modified." * Iii a subse-
quent case the same court used the following language :
"' The agreement is plain that if the lessees failed to get oil
in one well, they had a right to put down another, and as many
more as they pleased, so long as they worked with diligence to
success or abandonment, and equally plain that a cessation of
tliirty days would end their lease. They were not bound to do
more than make a reasonable search for oil, but they were bound
to operate or quit; they could not hold on and be idle. The
contract did not require them to keep on drilling oil wells in-
definitely and without cessation, for twenty years, nor for any
indefinite length of time; neither did it entitle them, after the
drilling of tlie well, to hold the lease for twenty years without
working it. Even at the beginning of the lease, the duration
qI the term was qualified by the words, ' unless forfeited.' The
question seems to be, shall the concise and clear expression ol
the agreement of these parties, as written, give way to imaginary
terms more favorable to the lessees? What is there in the
circumstances calling for a fictiou to defeat the covenant again^^t
delay in searching for or producing oil ? . . . If a well be
productive, it is the interest of both lessor and lessee that it be
4 Brown v. Vandergrift, 80 Pa. St. 142.
FORFEITUKE OF I-EASE.
179
'Continuously operated till its exliaiistion, but, if dry, it is of
no value. Holding on to a lease after ceasing search is often
for purposes of speculation, the thing which a prudent land
•ovmer guards against. Forfeiture for non-development or
•delay, is essential to j^rivate and public interests in relation to
the use and alienation of property. In such cases as this equity
follows the law.
" In the rapid development and exhaustion of oil lands, cessa-
tion of work for nine months is a long period. Often in far
less time the fluctuation in prices of land and leaseholds is very
gi'eat. Perhaps in no other business is prompt performance of
contracts so essential to the rights of the parties, or delay by
-one party likely to prove so injurious to the other." ^
§149. History of change in rule giving lessor exclusive right to
declare a forfeiture.
*' A distinction formerly pTcvailed between a proviso declar-
ing that the lease should be void on a specified event, and a pro-
viso enabling the lessor to determine it by re-entry. It was
Tield that in the former case the lease became absolutely void on
the event named, and was incapable of being restored by ac-
ceptance of rent or other act of intended confirmation ; whilst
in the latter some act, such as entry or claim, must have been
performed by the lessor to manifest his intention to end the
demise, which was voidable in the interval and consequently
confirmable. The force of this distinction, it is said, in Tay-
lor on Landlord and Tenant,^ has been almost, if not quite,
abated by the modern decisions, which establish that the effect
■of a condition making a lease void upon a certain event, is to
make it void at the option of the lessor only, in cases where
the condition is intended for his benefit, and he actually avails
liimself of this privilege.*" But it is entirely optional with
the lessor whether he will avail himself of his right or not,
although by the terms of the proviso the term is to cease or
l)ecome void for the non-performance of the covenant; and if
5 Munroe v. Armstrong, 96 Pa. St. « Seo. 492.
307. *« 2 Piatt on Leases, 327.
180 OIL AND GAS.
the lessor does not avail himself of it the term will continue,
for the lessee cannot elect that it shall cease or be void. Wliere
there is a proviso in a lease that on non-paymejit of rent the
term shall cease, the lessor and not the lessee has the option of
determining the lease upon a breach made." The English law
in this respect had been generally followed in tliis country, and
such a lease is held to be good nntil avoided ; thongh the lessee
is estopped to set it up against the lessor. A lessee cannot avail
himself of his own act to vacate a lease, on the principle tJiat
no man shall be permitted to take advantage of his own wrong.^
So Mr. Parsons, in his Law of Contracts,® referring to the dis-
tinction formerly recognized between the effect of a proviso de-
claring that the lease shall be void in a s^Decified event, and a
proviso enabling the lessor to determine it by re-entry, says :
' This distinction is now" exploded, and it is held that the lease
is voidable only at the election of the lessor, but not of the les-
see, though the proviso expressly declare that it shall be void.'
In Pennsylvania the older doctrine would seem at first to have
been adhered to, that in a lease for years with condition, if the
condition be broken by the lessee, his interest was ipso facto void
by the breach, and no subsequent recognition of the tenancy
could set it up.^** In the case cited there was a lease of land
upon condition that the rent should be paid upon certain speci-
fied dates, and if a certain default was made for three months,
neglect to pay after ten days' notice should render the lease null
and void. The default occurred and notice was given, and it
was held that after ten days the lease was ipso facto void, with-
out re-entry, and could not afterwards be affirmed or continued.
In Sheaffer v. Sheaffer ^^ the doctrine announced by Justice
Sergeant, in Kenrick v. Smick, supra, was adhered to ; and
English cases were brought into contrast with the doctrine of
Kenrick v. Smick, and it is admitted that the rule of the English
courts is followed in most of the States of the Union. In
Davis v. Moss,^^ the rule of the previous cases is again appa-
" Rcid V. Parsons, 2 Chit. 247. lo Kenrick v. Smick, 7 W. and
R Wood's Landlord and Tenant, S. 41.
1204. Ji .37 Pa. 525.
n Vol. I., p. 507. 12 38 Pa. 346.
1 81
FORFEITURE OF LEASE.
rently recog-nized, but its rigor is relaxed in this, that the for-
feiture is said to depend upon the tenns of the instrument,
' unless there be evidence to effect the landlord with a yaiver
of the breach, like the receipt of rent or other equally un-
equivocal act.' The distinction bet^veen the Pennsylvania cases
referred to and the weight of authority elsewhere, therefore
would seem to be that by the former the lease, upon breach ol
the condition, is ipso facto void, unless by son.e unequivocal act
of the lessor it is waived, whilst by the latter it is void li the
lessor elects by some positive act to take advantage ot it. We
do not understand that in either case a re-entry is required to
complete the forfeiting. This almost amounts to a distinction
without a difference. In practice, the prima facics being dif-
ferent it merelv shifts the burden of proof from one party to
the other. It will be observed moreover, that the Pennsylvania
cases already referred to are all cases in which the forfeiture
was set up by the lessor upon the default of the lessee; m none
of them did the lessee set up his own default as a cause ol for-
feiture No case has been called to our attention, m this or
any other State, in England or elsewhere, which recognizes the
doctrine that a party may take advantage of his own wrong, or
set up his own default to work a forfeiture of his own contract
Persons may, of course, contract in this form and to this effect
if they choose, but we do not understand the parties to this
contract to have so intended. But the rigid rule of Kenrick v.
Smick is further relaxed in the very recent case of Galey v.
Kellerman." Thus it appears that the distinction formerly
maintained between the rulings of the English courts and of the
courts of our sister States, and the rulings in Pennsylvanui is
no longer found to exist. We have by slow approaches at last
apparentlv turned into the general current of cases, m which
is found, without doubt, the great weight of authority, both m
England and in this country." ^*
as 123 Pa. 491 ; 16 Atl. Eep. 474. All. Rep. 721 ; 5 L R. A. 603.
X.Wills V. Manufacturers' Nat- For Pennsylvania cases, see pre-
ural Gas Co., 130 Pa. St. 222; 18 ceding section.
182 OIL AND GAS.
§150. Forfeiture favored by equity when it will promote justice.
A forfeiliu-e is not always abhorred by the law, nor by eqnity,
if its enforcement will promote jnstice. Sj^eaking of one in-
stance it was said by an appellate court: " In a case like
this eqnity follows the law, and will enforce the covenant of
forfeiture, as essential to do jnstice. It is true as a general state-
ment that eqnity abhors a forfeiture ; but this is when it works
a loss that is contrary to equity, not when it works eqnity, and
protects the land owner against the indifference and laches of
the lessee, and prevents a great mischief, as in the case of such
lessees." '° The courts have gone so far as to allow a specified
time within which to complete a well, and if not done within
that time, the lease would be declared forfeited. ^°
§151. Lessor only can declare forfeiture.
A lessee cannot set up his own default, in order to terminate
the lease or escape liability under its provisions. If he make
default, not keeping the covenants of the lease, it is with the
lessor to declare a forfeiture, or that it shall no longer be in
force. If a mining lease provide that if the mine should not
be worked the lease should be void, the w^ord " void " means
" voidable " at the election of the lessor; and it will be neces-
sary for him to do some act evincing an intention to avoid it
before it can be considered avoided or terminated. ^^ This is
true even though a clause provides that a failure to do the
thing covenanted to do " shall render this lease null and void,
15 Brown v. Vandergrift, 80 Pa. Co. (W. Va.), 43 S. E. Rep. 147;
St. 142; Munroe v. Armstrong, 96 Gadbury v. Ohio, etc., Gas Co.
Pa. St. 307; Parish Fork Oil Co. v. (Ind.), 67 N. E. Rep. 259.
J^ridgewater Gas Co., 51 W. Va. it Roberts v. Davey, 4 Barn, and
585; 42 S. E. Rep. 655; Barnsdali Ad. 664; 1 Nev. and M. 443; Bryan
V. Boley, 119 Fed. Rep. 191. v. Bancks, 4 Barn, and Aid. 401;
16 Young V. Vandergrift, 30 Bettman v. Harness, 42 W. Va. 433 ;
Pittsb. L. J. (N. S.) 39. Reversed 26 S. E. Rep. 271; 36 L. R. A. 566;
in Young v. Forest Oil Co., 194 Pa. Westmoreland, etc.. Gas Co. v. De-
St. 248; 30 Pittsb. L. J. (N. S.) Witt, 130 Pa. St. 235; 18 Atl. Rep.
221; 45 Atl. Rep. 121. See Ohio 724; 5 L. R. A. 731; Smith v. Mil-
Oil Co. V. Hurlbut, 7 Ohio Dec. 321; ler, 49 N. J. L. 521; 13 Atl. Rep.
14 Ohio C. C. 144, reversini 6 Ohio 39; Henne v. South Penn. Oil Co.,
Dec. 305; Henne v. South Ponn. Ol 52 W. Va. — ; 43 S. E. Rep. 147.
FORFEITURE OF LEASE.
183
toocthev witli all rights and claims, ami not binding on either
Jrty and not to he revived without the consent of both partK-s
Lreto in writing." " Snch provisions of forfe>.«rc, ' said the
court " are for the benefit of the lessor, and not for the benefit
of the lessee. The lessee cannot plead his own default or wrong
in discharge of his obligation to drill or pay rental. He
lessor has the option to discontinue the lease, on default of the
lessee, or affirm the continuance of the contract. Where a
lease provided that the lessee's failure to complete a well within
a certain period, or, in default thereof, '"^^ .IT^'TITJl
rental, slionld render the lease "null and void," and that all
rights and claims should therefrom cease, " with like effect as
if'this agreement had never been made," it was held that the
lessee, by his own default, could not relieve himself from lia-
bility already incurred.- In the instances just given parol
evidence is not admissible to show the uniform construction of
similar clauses by parties to such leases." Some of the courts
Rep. 721; 5 L. R. A. 602; Ogden v.
Hatry, 145 Pa. St. 640 ; 23 Atl. Rep.
334;" Phillip.-^ V. Vaiideigrift, 146
Pa. St. 357; 23 Atl. Rep. 347;
Leatherman v. Oliver, 151 Pa. St.
646; 31 W. N. C. 205; 25 Atl. Rep.
309- Agerter v. Vandergrift, 138
Pa. St. 576; 27 W. N. C. 230; 21
Atl. Kep. 202.
20 Ogden v. Hatry, supra; Shet-
tler V. Hartman. 1 Pennyp. (Pa.)
279.
21 Jones V. Western, etc., Gas Co..
146 Pa. St. 204; 29 W. N. C. 266;
23 Atl. Rep. 386.
Where a clause in a lease reads
" and no right of action shall after
such failure accrue to either party
on account of the breach of any
promise or agreement herein con-
tained." it was held that the words
" after such failure " referred to tlie
continued failure to make the pay-
ment after it bocnme due. and that
the riffht of action to recover it wns
not affected. Leatlierman v. Oiivr.
18 Woodland Oil Co. v. Crawford,
55 Onio St. 161; 36 Ohio L. Bull.
231; 44 N. E. Rep. 1093; 34 L. R-
A. 62; Thomas v. Hukill, 34 W. Va.
385; 12 S. E. Rep. 522; Jones v.
Western, etc.. Gas Co., 146 Pa. St.
204; 23 Atl. Rep. 386; 29 W. N. C.
266; Galey v. Kellerman, 123 Pa.
St. 491 ; 16 Atl. Rep. 474 ; Ray v.
Western, etc., Gas Co.. 138 Pa. St.
r,76; 20 Atl. Rep. 106^; 12 L. R.
\ 990- Springer v. Citizens', etc.,
Gas^Co'., 145 Pa. St. 430; 22 Atl.
Rep. 986; Cochran v. Pew, 159 Pa.
St 184; 28 Atl. Rep. 219; Smiley v.
Western, etc., Gas Co., 27 W. N. C
238; Liggett v. Shira, 159 Pa. St.
350 '; 33"w. N. C. 553; 25 Atl. Rep.
218; :Mathews v. People's, etc., Gas
Co ' 179 Pa. St. 165; 39 W. N. C.
.^44; 27 Pittsb. L. J. (N. S.) 421;
30 '\tl. Rep. 216; Harris v. Ohio
Coal Co., 57 Ohio St. 118 •. 48 N. E.
Rep. 502.
m Wills V. Manufacturers', etc.,
Gas Co., 130 Pa. St. 222; 18 Atl.
184 OIL AND GAS.
have gone a long ways in upholding the rule that only the lessor
can take advantage of the lessee's default. Thus where a lease
provided that a lease must be completed within three montlis,
and in case of a failure to do so, to pay a rental of $25 a
month, until the completion of one well ; and then expressly
provided that " a failure to complete such a well or to comply
with any of the foregoing conditions, or to make any such pay-
ments within such time and at such place as above mentioned,
renders this lease absolutely null and void, and no^ longer bind-
ing on either party, and will reinvest the estate herein granted
in the lessor, and release the lessee from all his covenants herein
contained, he having the option to drill said well or not, or pay
said rental or not as he may elect " ; this clause was considered
not to give the lessee a right to avoid the lease ; and he not
having drilled a well could not set up a forfeiture to avoid pay-
ing rent.'" In discussing a case of this kind the Supreme Court
of Pennsylvania used the following language:
" Whilst the obligation on the part of the lessee to operate is
not expressed in so many words, it arises by necessary implica-
tion. . . . If a farm is leased for farming purposes, the
lessee to deliver to the lessor a share of the crops, in the nature
of rent, it would be absurd to say, because there was no express
151 Pev. St. 646; 25 Atl. Rep. 309; guage used, and a like result was
31 W. N. C. 205; Conger v. Na- reached by the court,
tional, etc., Co., 165 Pa. St. 561; A lease for five years provided
31 Atl. Rep. 1038; Sanders V. Sharp, that a well should be completed
153 Pa. St. 555; 25 Atl. Rep. 524. within a year, or the lessee pay an
The lessee cannot insist that the annual rental until he did so. If
lessor exercise his right of option the lessee failed to make any of the
in order that he, the lessee, be re- payments within ten days after the
leased from his covenant. Leather- time specified, the lease should be
man-^. Oliver, 151 Pa. St. 646; 25 void, and neither lessor nor lessee,
Atl. Rep. 309. after such failure, should have a
22 McMillan v. Philadelphia Co., right of action by reason of the
159 Pa. St. 142; 28 Atl. Rep. 220. breach. It was held that the failure
See also Mathews v. People's Nat- of the lessee to make such payments
ural Gas Co., 179 Pa. St. 165; 36 did not relieve : im of liability for
Atl. Rep. 21C; and Bartlev v. Phil- the rent, nor prevent the lessor from
lips, 179 Pa. St. 175; 36 Atl. Rep. maintaining an action for it. Con-
217. Tlie lease in Cochran v. Pew, ger v. National, etc., Co., 165 Pa.
159 Pa. St. 184; 28 Atl. Rep. 219; St. 561; 30 Atl. Rep. 1038.
was almost as strong in the Ian-
rORFEITUKE OF LEASE. 185
engagement to farm, that the lessee was under no obligation to
cultivate the land ; an engagement to farm in a proper manner,
and to a reasonable extent, is necessarily implied. The clear
purpose of the parties to this lease was to have the lands de-
veloped, and the half-yearly payments, and the other sums stip-
ulated, were intended not only to spur the operator, but to com-
pensate Kay for tlie operator's delay or default. The lessor's
hands have been tied for two years. We do not know that ho
lost anything in royalties, or that he suffered by drainage, for
the territory might have proved unproductive ; but, as the trans-
action was founded in the hope that either gas or oil, or both,
might be found in paying quantities, it was competent for the
parties to contract in advance for the amount of compensation
to which, in the event of delay or default in develop'ment, the
lessor would be entitled. The provision for forfeiture was
doubtless inserted in anticipation that the lessee might make
default and become unable to pay, in which event he might put
an end to the lessee's pretensions and seek other means of devel-
opment. This clause having been inserted as a protection to
the lessor, he had the right either to declare the forfeiture or to
affirm the continuance of the contract; and, if the lessor did
not choose to avail himself of the forfeiture, the lessee cannot
set it up as a defense to an action in affirmance of the con-
tract." -^
§152. Heirs or assignees of lessor may declare forfeiture, —
assignee.
The lessor or his heirs may declare a forfeiture and make a
re-entry."* So the devisee may declare a forfeiture and re^
enter. "^ So may the lessor's assignees."'' ^Miere one, who was
of age, of several children, all minors but he, and heirs of a
2^ Ray V. Natural Gas Co.. 138 25 Hayden v. Stoughton, 5 Pick.
Pa. St. 576; 20 Atl. Rep. 1065; 12 528; Austin v. Cambridgeport, 21
L. R. A. 290. Pick. 215.
24 Island Coal Co. v. Combs, 152 20 Island Coal Co. v. Combs, 152
Ind. 379; 53 X. E. Rep. 4.52; \^ il- Ind. 379; 53 X. E. Rep. 452.
son V. Goldstein, 152 Pa. St. 524; 25
Atl. Rep. 493.
186 OIL AND GAS.
deceased lessor, acting on behalf of all declared a forfeiture,
the court said it would permit a repudiation of the declaration
of a forfeiture, unless it be shown that it was for the benefit of
such minors to enforce it rather than keep the lease alive.'^
And where the lessors were an adult and also a guardian of a
minor, the latter alone was not permitted to declare a for-
feiture.^^ These two last cases cover the statement that if
there be several lessors, as joint or tenants in common of the
same tract, a forfeiture cannot be declared and enforced, unless
all join in. the declaration. Where a conditional fee is con-
veyed, only the grantor or his heirs can take advantage of a
breach of the condition, not even the assignee of the grantor can.
do so.-^
§153. Stranger cannot avail himself of forfeiture.
As only the lessor can avail himself of the right to declare a
forfeiture, a mere stranger cannot set up, in order to defeat him
in his rights, that the lessee has forfeited his right to the lease,
so long as the lessor has not entered for or declared a forfeiture.
Thus in an action of ejectment brought by the lessee of a lease
against a mere squatter, where such lessee had established a
prima facie case, it was held that the squatter could not avail
himself of the lessee's want of diligence in prosecuting the
work, as required by the lease, and insist that the premises had
been abandoned.^"
§154. Lease may be voidable at election of lessee on his de-
fault.
A lease may, however, be so drawn that a lessee may take ad-
vantage of his own default. " Parties may agree that," said
the Supreme Court of Ohio, " in case of failure to drill, or fail-
ure to pay, or both, the lessee shall be relieved of his obligation
27 Wilson V. Goldstein, supra. so Hartley v. Phillips, 165 Pa. St.
2s Springer v. Citizens' Gas Co., 325; 36 W. N. C. 19; 30 Atl. Rep.
145 Pa. St. 430; 22 Atl. Rep. 986. 842.
29 Upington v. Corringan, 151 N.
Y. 143; 45 N. E. Rep. 359.
FORFEITURE OF I.EASE. 187
upon such terms as the parties may agree upon in the lease,,
whether the terms be of value to the lessor or inconvenience to the
lessee ; but a naked default and non-perfonuance, as in this lease,
cannot be held to discharge the obligation of the lessee." *^" If
the lessee may take advantage of his own default, he must sur-
render the lease if he would escape liability.^^ Where a lease pro-
vided tliat " the lessee shall complete a well within six months
from the date hereof or in default thereof pay to the party of the
first part, for further delay, an annual rental of seven hundred
dollars in advance on the said premises, from the time above
specified until such well shall be completed, . . . and a
failure to complete said well or pay said rental for ten days
after the time above specified for so doing, shall render the
agreement null and void, and it can only be renewed by mutual
consent; and no right of action shall accrue after such failure
to either party on account of the breach of any promise or
agreement herein contained," it was held that the lessee had an.
option to drill a well within six months from the date of the
lease and by paying seven hundred dollars within ten days
thereafter, a further option for one year; and that the lessee,
having a mere option, could set up his own default, availing
himself of the elective right secured to him in his contract.'''
If the terms of the lease expressly provide that the lease shall
be voidable, at the option of either party, or the lessee ; then
the latter may unquestionably avoid liability by neglecting to
comply with its requirements.^^ Where a lease provided that
the lessee was to pay a bonus of one hundred dollars, and a
royalty of one-eighth part of the oil produced ; that it Avas to
continue five years, and as much longer as gas or oil was found
*3o Woodland Oil Co. v. Crawford, 32 Van Voorhis v. Oliver, supra.
55 Ohio St. 161 ; 36 Ohio L. Bull. See Ray v. Natural Gas Co., 138 Pa.
231; 44 N. E. Rep. 1093; 34 L. R. St. 576; 20 Atl. Rep. 1065; Glasgow
A. 62; Van Voorhis v. Oliver, 22 v. Griffith, 22 Pittsb. L. J. (N. S.)
rittsb. L. J. (N. S.) 114. 181; Ramsey v. White, 21 Pittsb.
31 Roberts v. Bettman, 45 W Va. L. J. (N. S.) 425.
143; 30 S. E. Rep. 95; Johnstown, 33 Cochran v. Pew, 159 Pa. St.
etc., R. R. Co. V. Egbert, 152 Pa. 184; 28 Atl. Rep. 219; Liggett v.
St. 53; 25 Atl. Rep. 151; Coulter v. Shira, 159 Pa. St. 350; 28 Atl. Rep.
Conemaugh Co., 30 Pittsb. L. J. 218.
(N. S.) 281.
188 OIL AND GAS.
in paying quantities ; if gas were found, tlien three hundred
dollars rental per year for each well ; and there was a proviso
that " this lease shall become null and void, and aU rights here-
under shall cease and determine, unless a well shall be com-
pleted on the premises within one month from the date hereof,
or unless the lessee shall pay at the rate of one hundred dollars
monthly in advance for each additional month " — it was held
that the lease contained no covenant binding upon the lessee to
pay rent, the only penalty imposed upon him being a forfeiture
of his rights under the agreement. " But the payment," said
the court, " w^as means provided by the contract by which the
exercise of the right of the lessor to assert a forfeiture could
be postponed. If the lessee did not w^ish to postpone the ex-
ercise of such right, he had only to refrain from making the
payment." ^* Where an oil lease was given for a certain period,
providing that it should become void and the rights of the lessee
under it should cease unless a well should he completed on the
premises within a certain i>eriod of time, or unless the lessee
should pay a certain sum for each year the completion of the
\vell should be delayed ; it was held that the terms of the lease
did not require the lessee to develop the land or pay the rent, the
only penalty for such a failure being a forfeiture of his rights
under it.^^
§155. Lessee cannot insist on forfeiture to escape rent.
A' lessee cannot insist that he is not liable because the lessor
had the right to declare a forfeiture, and that there were con-
ditions authorizing him to declare forfeiture many years before,
in order to escape the payment of rent. In such an instance it
■^
34 Glasgow V. Chartiers Oil Co., Ct. 607; Snodgrass v. South, etc.,
152 Pa. St. 48; 25 Atl. Rep. 232. Oil Co., 47 W. Va. 509; 35 S. E.
" This case is not ruled," said the Rep. 820.
court, " by Ray vs. The Natural Gas In New Jersey, by 1 Gen. St., p.
Co., 138 Pa. St. 576 [20 Atl. Rep. 880, Sees. 135 and 136, the default-
1065, 12 L. R. A. 290], and kindred ing lessee has the same right to de-
cases." See Miller v. Balfour, 138 clare a forfeiture as the lessor has.
Pa. St. 183; 22 Atl. Rep. 86. Boys v. Robinson (N. J. L.), 38
ssMcKee v. Colwell, 7 Pa. Super. Atl. Rep. 813.
FORFEITURE OF LEASE. 189
remains witli the lessor to determine whether he will declare a
forfeiture or insist upon the rent.^*^
§156. Forfeiture clause omitted.
Where no forfeiture clause is inserted in a lease, either for
failure to pay rent or develop the premises ; and neither is done,
there can be no forfeiture declared. But the failure to pay
rent according to the terms of the lease, or to develop the prem-
ises, may be considered as sufficient evidence, if unexplained, to
support the charge of abandonment.^^ And the usual rule is
that a lease must state the condition upon which a forfeiture
can be declared, or no forfeiture can be declared."^ But where
the lease w^as limited to twelve months or so long as gas should
be found, for a certain royalty, and pay blank dollars per blank
time (the blanks not being filled) ; it was held that a forfeiture
could be declared. ^'^
§157. Implied covenants do not authorize forfeiture.
There can be no forfeiture for a violation of an implied
covenant, unless the lease expressly so provides.*^'* " A breach
of the implied covenant to reasonably develop and protect lines
does not have the effect to forfeit the lease in whole or in part,
nor is it good cause for a court to declare such forfeiture, unless
the lease in express terms provides that a breach of such im-
plied covenant shall avoid or forfeit the lease." " It is strongly
urged that it is inequitable for the lessee to hold on to his lease,
and still fail so to operate the premises as to produce reasonable
results, and that he should either reasonably operate the prem-
ises or get off and peiinit his lease to be forfeited. The answer
is that, while there is an implied covenant to reasonably operate
the premises, there is no implied or express covenant to get off
and forfeit his lease for a breach of such covenant. The lease
36 Ahrns v. Chartiers Valley Gas 38 Vandevoort v. Dewey, 42 Hun
Co., 188 Pa. St. 249; 41 Atl. Rep. 68.
739. See Bettman v. Shadle, 22 39 Eaton v. Allegany Gas Co., 122
Ind. App. .542; 53 N. E. Rep. 662. N. Y. 416; 25 N. E. Rep. 981. re-
37 :\Iaishall V. Forest Oil Co., 198 versing 42 Hun 61. See also Barns-
Pa. St. S3; 47 All. Rep. 927. dall v. Boley. 119 Fed. Rep. 191.
190 OIT. AND GAS.
in question provides for a forfeiture for the failure to comply^
with the conditions, or to pay the cash consideration in the lease
mentioned, at the time and in the manner agreed ; but the im-
plied covenant, to reasonably operate the premises, is not men-
tioned in the lease, and is therefore not included in the causes
of forfeiture. Some causes of forfeiture being expressly men-
tioned, none other can be implied." *" A few cases hold, how-
ever, that a breach of an implied covenant is sufficient to justify
the declaration of a forfeiture.*^
§158. Notice of election to declare forfeiture.
If the lessor be in possession, notice to the lessee of his inten-
tion to declare a forfeiture is not necessary, unless the lease-
provide for it; and if a notice is necessai-y, the execution of a
second lease, to the knowledge of the first lessee, is a sufficient
notice to him.''" A conveyance of the property in fee, by the
lessor, after default made, is also a sufficient notice to the lessee,
if one be required.*^ But if there has been a substantial per-
formance, or a bona fide attempt at it, even though a forfeiture
could have been enforced by making a demand and giving,
notice, the putting of another tenant on the premises, without
such demand and notice, will not enable the lessor to have a
forfeiture declared.*'* If the lessor give a lessee not in actual
possession notice that the lease is forfeited, it is substantially a
declaration that he will refuse to put him in possession.*^ Where
40 Harris v. Ohio Oil Co., 57 Ohio 981, reversing 42 Hun 61. See Cof-
St. 118; 48 N. E. Rep. 502; 1 Ohio finberry v. Sun Oil Co., 67 N. E.
N. P. 132; 38 Wkly. L. Bull. 283; Rep. 1069.
McKnight V. Kreutz, 51 Pa. St. 232; 42 Allegheny Oil Co. v. Bradford
Core V. N. Y., etc., Co., 52 W. Va. Oil Co., 21 Hun 26, affirmed 86 N.
-:-; 43 S. E. Rep. 128. The remedy Y. 638; Gadbury v. Ohio, etc., Gas
of the lessor was considered to be Co. (Ind.), 67 N. E. Rep. 259; Gad-
a suit for damages. bury v. Ohio, etc., Gas Co. ( Ind
41 King V. Edwards, 32 111. App. App.), 65 N. E. Rep. 289.
558 ; Conrad v. Morehead, 89 N. C. 43 Shepher v. McCalmont Oil Co.,
31; Maxwell v. Todd, 112 N. C. 38 Hun 37.
677; 16 S. E. Rep. 926; Hawkins v. 44 Kreutz v. McKnight, 53 Pa. St,
Pepper, 117 N. C. 407; 23 S. E. Rep. 319.
434; Barnsdall v. Boley, 119 Fed. 45 Carnegie, etc.. Gas Co. v. Phila-
Rep. 191; Eaton v. Allegany Gas delphia Co., 158 Pa. St. 317 ; 27 Atl.
Co., 122 N. Y. 416; 25 N. E. Rep. Rep. 951.
FORFEITURE OF LEASE. 191
.■a lease provided that if there was a delay in developing the
premises, after written notice by the lessee of a forfeiture, the
lessee should have the right to pay an annual rent because of
such delay, it was held that the execution of a second lease con-
ditioned on the avoidance of the first, was not such a written
notice as the lease required/" If the lessor has demanded ex-
•cessive royalties, tlien his notice of a forfeiture is a nullity.'''
If he has such possession as entitles him to resist the entry by
the lessee after a forfeiture, no notice of a forfeiture is neces-
sary.*^ If the lessor desires to declare a forfeiture of the lease
for the reason that the land has not been fully developed, al-
though the lessee has entered and developed a part of it, he
must give notice to sucli lessee of his intention to declare a for-
feiture if the lease is not fully developed, and reasonable time
must be given for the development.*'' But if a lease provide
that it shall be subject to forfeiture on default of the lessee,
and authorizes the lessor to take possession " without any notice
or legal process," notice is not necessary.^" So where the con-
dition in a lease was that if no well should be completed within
a year from tlie date of the lease, it should be void, unless the
lessee pay a certain named sum of money annui^lly during the
time the well remained uncompleted, it was held that a failure
to complete the well during the year, and an omission to pay
the first annual amount, avoided the lease, without an election
on the part of the ownier to terminate it.^^
§159. Waiver of forfeiture.
The right of a lessor to declare a forfeiture and re-enter on
the leased premises because of that fact may be waived by him,
and often is, either by express statements, or by conduct or by
46 South Penn. Oil Co. v. Stone reversing 6 Ohio Dec. 305. See Cof-
(Tenn. Ch.), 57 S. W. Rep. 374. finberry v. Sun Oil Co., G7 N. E.
*7West Ridge Coal Co. v. Van Rep. 1069.
Storch, 5 Lack. Leg. N. 189. so Fisher v. Dunring, 53 Mo. App.
48 Maxwell v. Todd, 112 N. C. 548.
«77; 16 S. E. Rep. 926. 5i Kenton Gas., etc., Co. v. Dor-
49 Ohio Oil Co. V. Hurlbut. 7 Ohio ney, 17 Ohio Cir. Ct. Rep. 101; 9
Dec. 321; 14 Ohio C. C. Rep. 144; Ohio Cir. Dec. 604.
192 OIL AND GAS.
acts.""" A waiver of the time, however, within which operations
are to be commenced is not necessarily a waiver of the time for
com])letion of a welL^" Tn the case jnst cited the o|>erations
were to begin within sixty days, and a well to be completed
within five months, and in either event the lease was to be for-
feited. The lessor waived the sixty day provision ; bnt this
was held not a waiver of the five months' provision, even tliongh
the lease was assigned after the sixty day period. Bnt if there
has been such delay as entitles the lessor to declare a forfeiture,
and without doing so, he permit the lessee to commence opera-
tions and sink wells on the land with his consent, he w^aivcs his-
riffht to insist on a forfeiture. °* Even thou2:h the lease has ex-
pired, yet if the lessor permit the lessee to expend large sums
of money in its development, thus leading the lessee to believe
that it was not his intention to claim a forfeiture, he cannot
then declare a forfeiture.^"' IMere silence, however, on the part
of the lessor during the time given for the development of the
premises will not be a waiver of the right to declare a for-
feiture.^*' But delay in completing a well within time, with the
assent of the lessor, wdio is anxious that the work be continued,
and by his conduct and acquiescence clearly make it appear that
he does not regard the delay as sufficient ground for declaring
a forfeiture, is a waiver of the right to declare it.^^ Where a
le^ise required seven wells to be put down, acquiescence in the
failure to put do^vn two or three of the preceding six wells was
held a waiver of the right to declare a forfeiture as to the delay
made in neglect to drill the seventh well on time.^® Where an
oil lease did not make time the essence of the contract, and the
rent for delay for several years had been regularly paid, and at
*■' 52 McCarty v. Mellon. 5 Pa. Dist. 56 Island Coal Co. v. Combs, 152
Rep. 425; Friend v. Mallory, 52 W. Ind. 379; 53 K E. Rep. 452; Adams
Va. — ; 43 S. E. Rep. 114. v. Ore Knob Copper Co., 7 Fed. Rep.
53 Cleminger v. Baden Gas Co., 634.
159 Pa. St. 16; 28 Atl. Rep. 293. 57 Elk Fork Oil and Gas Co. v.
54 Ohio Oil Co. V. Hurlbut, 14 Jennings, 84 Fed- Rep. 839 ; Riddle
Ohio Cir. Ct. Rep. 144; 7 Ohio Dec. v. Mellon, 147 Pa. St. 30; 23 Atl.
321, reversing 6 Ohio Dec. 305. Rep. 241.
ssDuffield V. Michaels. 102 Fed. 5s Duffield v. Hue, 129 Pa. St. 94;
Rep. 820; 42 C. C. A. 649. 18 Atl. Rep. 566.
FORFEITURE OF LEASE. 193
the time anotlier year's rent fell due, the lessee was daily ex-
pending, and for ten days thereafter continued daily to expend,
to the knowledge of the lessee, a sum equal to a year and a
half's rent under a producing well, when he produced gas in
a paying quantity, it was held that the lessee had waived his
right to declare a forfeiture, six or seven days after such rent
fell due, because of its nourpayment at the stipulated time.^"
A delay for a very short time — as a day or so — will not work
a forfeiture where the lessor hy his acts and declarations has
led the lessee into the belief that a forfeiture, because of such
delay, would not be enforced.''" Where the lessor, after acts
sufficient for a forfeiture had taken place, gave a second lease on
the premises, but endorsed on it, ^' This lease is taken suject
to " the first lease, it was held that the second lease was not an
unequivocal declaration of a forfeiture of the first one, and that
the endorsement was such as to enable the lessee to have an er-
roneous endorsement made on the first lease corrected.**^ Where
the acts of the lessor tending to show a waiver are equivocal, the
question of waiver is one for the jury/'" The lessor may waive
the forfeiture, although in possession, affirm the continuance
of the lease, and recover the sum agreed to be paid under its
terms."^ Where default was unintentionally made in the pay-
ment of rental while the lessee was engaged in drilling a second
well, and the lessor, with knowledge of the default, suffered him
to continue drilling, for some period of time (as, for two
weeks), before declaring a forfeiture, and the lessee immedi-
59 Lynch v. Versailles Fuel Gas ger v. Baden Gas Co., 1.59 Pa. St.
Co., 165 Pa. St. 518; 35 W. N. C. 16; 28 Atl. Rep. 293.
558; 30 Atl. Rep. 984. See Men- 6i Schaupp v. Hukill, 34 W. Va.
fort V. Lanyon Zinc Co. (Kan.) 72 375; 12 S. E. Rep. 501.
Pac. Rep. 784. e2Wes]ing v. Kroll, 78 Wis. 636;
The lessor must act promptly, and 47 N. W. Rep. 943 ; Nelson v.
the result of enforcing the for- Eachel, 158 Pa. St. 372; 27 Atl.
feiture must not be unconscionable. Rep. 1103.
Thompson v. Christie, 138 Pa. St. 63 Agerter v. Vandergi-ift, 138 Pa.
230; 20 Atl. Rep. 934; 11 L. R. A. St. 576; 27 W. N. C. 230; 21 Atl.
2.36. Rep. 202; Ray v. Gas Co., 138 Pa.
"osteiner v. Marks,, 172 Pa. St. St. 576; 27 W. N". C. 230; 20 Atl.
400; 33 Atl. Rep. 695. See Clemin- Rep. 1065.
194 OIL AND GAS.
ately offered to pay the rental, the court construed the aeticns
of the lessor as an acquiescence in the drilling of the other wells,
and refused to sustain the declaration of a forfeiture."* Receiv-
ing rent after default made will ho a Avaiver of the right to
declare a forfeiture for a failure to pay the rent at the time
stipulated for its payment in the lease. *''^
§160. Waiver of forfeiture by accepting payment.
An acceptance of rent for the defaulted i>eriod or any part
of it will usually be a waiver of a right to declare a forfeiture.*'*'
When rent was accepted by the lessor, with knowledge on his
part that the lessee was every day violating the covenants of
the lease, it was held that the lessor accepting rent could not
declare a forfeiture without a reasonable prior notice that fur-
ther non-compliance would not be waived.*'^ Not in all in-
stances, however, will a forfeiture be waived by a receipt of
rent. Thus where the amount of the ore sold and delivered
could only be ascertained by an examination of the books and
accounts of the lessees, the acceptance of a part of the rents or
royalties by one of two joint lessors, without any knowledge that
fl greater sum than that tendered was due, was held not to be a
waiver of the forfeiture caused by non-payment of the full
.amount due.*** Where a lease required the lessee to drill a
well within a certain time, or, in default of its completion
within such time, pay ten dollars for every month until its
completion — each payment to keep the lease in force for one
month only, it was held, the well not having been completed
within the required time, that on failure to make the monthly
payments required, the lessor had the right to declare the lease
forfeited, and that he had not waived his right to declare a for-
feiture by accepting payment for the last preceding month, the
6*McCarty v. Mellon, 5 Pa. Dist. W . Va. — ; 43 S. E. Rep. 114. See
Rep. 425. Monfort v. Lanyon Zinc Co. (Kan.)
G5 Friend v. Mallory, 52 W. Va. 72 Pac. Rep. 784.
— ; 43 S. E. Rep. 114. 67 Verdolite v. o. v. Richards, 7
66 Davis V. Moss, 38 Pa. St. 346; North Co. Rep. (Pa.) 113.
Boys V. Robinson (N. J. L. ), 38 cs Boys v. Robinson, supra.
Atl. Rep. Si 3; Friend v. Mallory, 52
FORFEITURE OF LEASE.
195
rental for the previous nxonths being unpaid.®* Tke receipt of
rent, after declaring a forfeiture — or, by executing a second
lease ta a third party — will not be a waiver of the power to
declare such forfeiture, contained in the first lease, nor will it
reinstate the first lessee in his rights under the lease.^** But
if periodical rents are to be paid, for which a liability to a
forfeiture will be incurred if default be made in the payment of
rent for any period ; yet, notwithstanding that fact, the lessor
frequently accept the rents after the time at which tliey should
have been paid and does not declare a forfeiture, as to justify
the lessee in entertaining the belief that he will not be subject
to a forfeiture by the act of the lessor if he make a default, he
will not, after repeatedly making default in the time of pay-
ment, followed by payment, to and receipt of rent, by the lessor^
be subject to a forfeiture for neglect, to pay rents on time there-
after, unless the lessor notifies him, before default in the
particular instance, that he would insist upon a forfeiture for
neglect to pay any rent falling due after giving sudi notice.''^
Where work is done after default, in payment of rent due,
without objection on the part of the lessor, there is a waiver of
a right to declare a forfeiture for neglect. tO' pay such rent within
the time required.^" Agreeing that the time of pajmient may
be extended is a waiver of the right to declare a forfeiture for
the lack of payment/'^ Where the rent is payable in a certain
bank by deposit therein, a deposit therein by check of the
amomit due, on or before the date of payment, is sufficient to
prevent a, forfeiture.'* Waiver of one stipulation in a lease is
not a waiver of other independent stipulations.^^ A lease re-
RoDuffield V. Michaels, 97 Fed. Co., 85 Mich. G05; 49 N. W. Rep.
Rep. 825. 135.
70 Guffey v. Hukill, 34 W. Va. 49 ; 'i Friend v. Mallory: 52 W. Va.
11 S. E. Rep. 754. See Hukill v. — ; 43 S. E. Rep. 114. See Mon-
GufFey. 37 W. Va. 425; 16 S. E. fort v. Lanyon Oil Co. (Kan.) TZ
Rep. 544. Pae. Rep. 784.
71 Hukill V. Myers, 36 W. Va. 75 Murray v. Heinze, 17 Mont,
639; 15 S. E. Rep. 157. 353; 42 Pac. Rep. 1057; 43 Pae,
"McCarthy v. Mellon, 5 Pa. Dis;t. Rep. 713; Brown v. Vandergrift, 80
R. 425. Pa. St. 142.
73 Wakefield v. Sunday Lake, etc.,
196 OIL AND GAS.
quired a well to be completed within two months and if not
the lease to be void unless the lessee after that time should pay
monthly ten dollars for each month's delay in completing a well ;
and it also required o}>erations on the well to be commenced in
thirty days, and if not, ten dollars extra should be paid for the
second month ; but work was not begun within tlie first month,
nor a well completed within two months and eight days. At
the end of the second month, the lessee paid ten dollars ; and
twelve days after the end of tJie third he tendered ten dollars
more, which was refused. It was held that the first ten dollar
payment could not be claimed by the lessor as a payment on
account of the money to be paid extra for the second month, and
that a lease given to a third party after the end of the third
month, and before the well had been completed, under the claim
that the first lease had been forfeited by reason of the non-
payment of the sum agreed upon to be paid for delay, was void.
It was also held that the payments to be made " for each month's
delay in completing " the well not being made payable in ad-
vance by the terms of the lease, the lessor could not claim a
forfeiture five days after the close of the third month, on the
ground tliat the well was not then completed, and the lessee had
failed to make payment for delay for the fourth month.^"
§161. Eviction of lessee.
An eviction of the lessee by the lessor will excuse him from
carrying out the terms of his lease, and will also prevent a for-
feiture of it on his part- The eviction may be purely con-
structive; such as a. conveyance of vacant lots, that have been
leased, by the lessor, without any reservation of the lessee's
right of entry to drill for oil or gas.^^ But the entry of a lessor
"•■' DiilTield V. Michaels. 102 Fed. gas from the well without incurring
Rep. 820; 42 C. C. A. 649. obligation under the contract to the
Where a lessor was to receive gas appellant [lessee]." American Win-
free for his use, the use of the gas dow Glass Co. v. Williams (Ind.
after forfeiture incurred was held App.), 66 N. E. Rep. 912.
not to be a waiver of his right to 77 Mathews v. People's Natural
declare and insist upon a forfeiture. Gas Co., 179 Pa. St. 165: 30 W. N.
"The land with the well upon it be- C. 544; 27 Pittsb. L. J. (N. S.)
ing the property of the appellee 421; 36 Atl. Rep. 216.
[lessor], he had the right to use the
FORFEITURE OF LEASE.
197
and the construction by him of a building on the land was held
not to be such a resumption of possession as will terminate his
right, thereafter to demand rent, simply because he set his build-
ing where the lessee had set a stake to designate the place
where the well was to be drilled, the building not otlierwise
preventing the development of the premises.'^'^
^162. Failure to operate and not for failure to develop.
Occasionally leases are met with that a failure to develop
within the time given for development will not. work a for-
feiture; but a failure, after develop'ment to operate will have
that effect.. Thus in a lease of a coal bank, the lease required
the lessee tO' put. the bank in. good working order for the rent of
the first, year, but thereafter to pay a royalty on every bushel of
coal taken out; and if the coal bank should remain idle by the
act of the lessee, when. it. would yield coal, for the term of one
year, it should be considered abandoned. It was held that a
failure to put the coal bank in good working order the first year
did not constitute an abandonment of it; the clause of for-
feiture not applying to such neglect.''^
§163. Continuance of operations.
Where a lease provides a forfeiture for a neglect or failure
to operate the oil or gas wells, no makeshifts of operation will
prevent the forfeiture. In such an instance the operation of
78 Mathews v. People's Natural liams (Ind. App.), 6G N. E. Rep.
Gas Co., 179 Pa. St. 165; 27 Pittsb. 912.
L. J. (N. S.) 421; 39 W. N. C. Where a lessor of a mineral mine
544; 36 Atl. Rep. 216. was to be paid only out of the net
70 ]\Ioyers v. Tiley, 32 Pa. St. 267. proceeds, and there were no net pro-
Soe Thompson v. Christie, 138 Pa. ceeds, although the mine was operat-
Rt. 230; 20 Atl. Rep. 934; 1 L. R. ed, it was held that the lessee was
A. 290; Barnsdall v. Boley, 119 Fed. not liable on the ground that he
Rep. 191 ; and Parish Fork Oil Co. did not continuously work the mine,
V. Bridgewater Oil Co., 51 W. Va. not being bound to do so in the ab-
583; 42 S. E. Rep. 655; Gadbury v. sence of a special agreement. Caley
Ohio, etc., Gas Co. (Ind.), 67 N. E. v. Portland (Colo.), 71 Pac. Rep.
Rep. 259 ; Gadbury v. Ohio, etc.. Gas 892. See Colorado, etc., Co. v.
Co. (Ind. App.), 65 N. E. Rep. 289; Pryor, 25 Colo. 540; 57 Pac. Rep. 51.
American Window Glass Co. v. Wil-
198 OIL AND GAS.
the well means the extraction of oil or gas from the premises ;:
and the lessee cannot successfully claim that entries from time
to time to clean and grease an engine which he had erected on
the premises and used in pumping oil, or in any other legitimate
way, was a continuance of mining operations, in order to pre-
vent a forfeiture.^" Cessure of operation for nine months w^as
held to be such a neglect as entitled the lessor to a forfeiture.
" In the rapid development and exhaustion of lands, cessation of
work for nine months is a long period. Often, in far less time,
the fluctuations in prices of lands and leaseholds is very great.
Perhaps in no other business is prompt performance of contract
so essential to the rights of the parties, or delay by one party
likely to prove so injurious to the other." ^^
§164. Production of gas will not prevent forfeiture of an oil
lease. — Reimbursement.
If the lease is for the development of the leased premises for
oil, the production of gas will not prevent its forfeiture, al-
though the gas may be a valuable product.^^ In such an in-
stance the lessee has no right to be reimbursed the expenses of
his operations out of the proceeds of the gas obtained ; for an
oil and not a gas lease was contemplated by the parties when
it was executed.*^
§165. Covenant uncertain.
To authorize a forfeiture for a failure to keep a covenant, it
must not only be valid but also certain. Thus where the lessee
covenanted to complete four oil wells within a year, and stip-
■*80 Davis V. Moss, 38 Pa. St. 346. tion to abandon or surrender the
81 Monroe v. Armstrong, 96 Pa. lease itself. Parish Fork Oil Co.
St. 307. See also Parish Fork Oil v. Bridgewater Gas Co., 51 W. Va.
Co. V. Bridgewater Gas Co., 51 W. 583; 42 S. E. Rep. 655.
Va. 583; 42 S. E. Rep. 655; Barns- See the excellent case of Coffin-
dall V. Boley. 119 Fed. Rep. 191; berry v. Sun Oil Co. (Ohio) 67 N.
Federal Oil Co. v. Western Oil Co., E. Rep. 1069.
112 Fed. Rep. 373. 82 Truby v. Palmer, 4 Cent. Rep.
The law recognizes a distinction (Pa.) 925; 6 Atl. Rep. 74.
between the abandonment of opera- 83 Palmer v. Truby, 136 Pa. St.-
tions under an oillease and an inten- 556; 20 Atl. Rep. 516.
FOEFEITURE OF LEASE. 199
iilated if he did not that twenty-two acres should be forfeited
for each well not so completed, it was held that the forfeiture
clause was void for uncertainty, and could not be enforced.^*
And where the lessee of a mine covenanted to " use all economy
in the conduct and management of the mining enterprise," it
was held that it was too uncertain to be recognized as a condi-
tion, for the breach of which a forfeiture would be exacted.^^
§166. Re-entry.
A forfeiture may be incurred by a breach of eitlier a covenant
or a condition subsequent. If it be incurred by reason of a
breach of a covenant, then the right of re-entry must be reserved
to work a forfeiture.^** In the case of a condition subsequent
a right of re-entry need not be expressly reserved if the condi-
tion is expressed. But a re-entry is necessary to defeat the
lease,^^ or acts that are equivalent to it — such as bringing an
action in ejectment,*^ If a lessor be in possession, then a re-
entry is not necessary, nor is a demand for possession. The
law does not require a useless act. In the case of a gas or oil
lease, where the lessor is in possession of the ground for the pur-
poses of tillage, he has sudi a possession as not to require a re-
entry,®'* and there must be a breach of the condition or covenant
84 Thomas v. Kirkbride, 15 Ohio Stearns v. Harris, 8 Allen 597; Mc-
Cir. Ct. Rep. 294; 8 Ohio Dec. 181. Kelway v. Seymour, 29 N. J. L.
85 Benaivder V. Hunt, 79 Tex. 383 ; 321; Boys v. Robinson (N. J. L.),
15 S. W. Rep. 396. 38 Atl. Rep. 813; Hoch v. Bass, 133
86 Doe V. Jepson, 3 B. and Ad. Pa. St. 328; 19 Atl. Rep. 360. As
402; 1 L. J. K. B. 154; Jones v. in the usual lease of premises for
Carter, 15 M. and W. 718; Clark v. gas. Gadbury v. Ohio, etc., Gas Co.
Jones, 1 Denio 516; Brown v. Bragg, (Ind.), 67 N. E. Rep. 259.
22 Ind. 122 ; Den. v. Post, 25 N. J. so Guffey v. Hukill, 34 W. Va. 49 ;
L. 285; Wheeler v. Earl, 5 Cush. 31. 11 S. E. Rep. 754; 8 L. R. A. 759;
87 Andrews v. Senter, 32 Me. 394; Adams v. Ore Knob Copper Co.. 7
Bowen v. Bowen, 18 Conn. 535; Rol- Fed. Rep. 634; Allegheny Oil Co. v.
lins V. Riley, 44 N. H. 9; Hamilton Bradford Oil Co., 86 N. Y. 638; af-
V. Elliott, 5 S. and R. 375; Hawkins firming 21 Hun 26; Hawkins v,
V. Pepper. 117 N. C. 407; 23 S. E. Pepper. 117 N. C. 407; 23 S. E. Rep.
Rep. 434. 434; Maxwell v. Todd, 112 N. C.
88Goodright v. Cator. 2 Dougl. 677; 16 S. E. Rep. 926; Island Coal
485; Doe v. Masters. 2 B. and C. Co. v. Combs, 152 Ind. 379; 53 N.
490; Osgood v. Abbott. 58 Me. 73; E. Rep. 452.
Ponda V. Sage, 46 Barb. 109;
200 OIL AND GAS.
mentioned in the lease.''^ The right to re-enter, however, may
be waived or deferred, as by an act extending the time within
which a payment of the rent might be made. Even if notice to
qnit is given, but accompanied by an assurance that another
notice will be given, tlic right to re-enter is not complete until
such second notice has been served on the lessee.''^ If the re-
entry be illegal, and the lessor operate the oil wells, he must ac-
count to the lessee for the oil taken out by him at its market
value, less the royalty and the actual cost of operating the
wells, of permanent and necessary improvements made by him,
and of money actually paid by him for labor claims against the
lessee's property.'''" If the lessee dispute all the assertions of
forfeiture, but the lessor has re-entered, a preliminary injunc-
tion will be awarded and continued to restrain the lessor for
continued interference with the premises ; ^^ and the lessor can-
not, under such circumstances, apply for a preliminary in junc-
tion to restrain the lessee from entering upon the premises.'**
§167. Release of premises equivalent to a re-entry.
The execution of a second lease to a third person, after for-'
feiture incurred, is equivalent to a re-entry, and is as effectual
for all purposes as the re-entry itself."^ A demand for the
payment of the rent due, where the forfeiture is for that reason,
is not necessary before executing the second lease. ®^ Not in
every instance, however, will the execution of a second lease be
equivalent to a re-entry nor to a declaration of a forfeiture.
90 Harris v. Ohio Coal Co., 57 ^^ Potterie v. Potterie Gas Co.,
Ohio St. 118; 48 N. E. Rep. 502; 153 Pa. St. 13; 25 Atl. Rep. 1107.
JiIcKmght V. Kreutz, 51 Pa. St. 232. os Allegheny Oil Co. v. Bradford
See Thompson v. Christie, 138 Pa. Oil Co.. 86 N. y. 638; affirming 21
St. 230; 20 Atl. Rep. 934; 11 L. R. Hun 26; Huggins v. Daley, 99 Fed.
A. 236. Rep. 606; 40 C. C. A. 12; 48 L.
ni Wakefield v. Sunday Lake, etc., R. A. 320; Guffey v. Hukill, 34 W.
Co., 85 Mich. 605; 49 N. W. Rep. Va. 49; 11 S. E. Rep. 754; Kenton
135. Gas, etc., Co. v. Dorney. 17 Ohio Cir.
!'^ Wakefield v. Sunday Lake, etc., Ct. Rep. 101 ; 9 Ohio Cir. Dee. 604.
Co., 85 Mich. 605; 49 N. W. Rep. ne Wolf v. Guffey, 161 Pa. St.
135. 276; 28 Atl. Rep. 1117; Parish Fork
93 Potterie Gas Co. v. Potterie, Oil Co. v. Bridgewater Gas Co., 51
153 Pa. St. 10; 25 Atl. Rep. 1107. W. Va. 583; 42 S. E. Rep. 655.
FORFEITURE OF EEASE. 201
Thus giving' a second lease subject to the first one is not a re-
entry nor a declaration of a forfeiture.'*' And where the second
lease is silent on the subject of the forfeiture of the first lease,
oral evidence is admissible to show it was not the intention of
the lessor to declare a forfeiture of such first lease.""* And if
there has been a waiver of the time or manner of payment of
the rent specified in the first lease, the execution of a second
lease because of a failure to make payment in the manner and
at the time required by such first lease will not be sufficient to
complete its forfeiture."'' Where a lease has not only been for-
feited but also abandoned by the lessee, and he has given up all
hope of developing the lands, the execution of a second lease
by the lessor, '' subject to " the first lease, will not be construed
as a recognition of the validity of such first lease.^°° Where a
first lease had expired, and also a second one given to a third
person, and the lessee under the first lease took possession with
the lessor's consent, and at great expense produced oil in pay-
ing quantities, it was held that the second lessee could not main-
tain an action for the possession of the premises."^ Where the
first lease requires the lessee to re-convey the premises, in case
of acts of forfeiture or abandonment, the execution of a second
lease will not work a forfeiture."" ^Miere a part, of the prem-
ises were subleased by the lessee, subject to the conditions of
the first lease, which the sublessee assumed, but tlie lessee con-
tinued tO' pay the rent until the last payment, when he de-
faulted ; and thereupon the lessor executed a second lease to the
sublessee for the entire pTemises, providing that such sublessee
should stand between him and " all who may have claim to this
lease," this was held not to w^ork a forfeiture of the first lease.^"^
Where a lease is executed giving tlie lessor an option to declare
9T Schaupp V. Hukill, 34 W. Va. loo Elk Fork Oil and Gas Co. v.
375; 12 S. E. Rep. 501; Henne v. Jennings, 84 Fed. ^lep. 839.
South Penn. Oil Co., 52 W. Va. — ; loi Thomas v. Hukill, 34 W. Va.
43 S. E. Rep. 147. 385; 12 S. E. Rep. 522.
08 Thomas v. Hukill, 34 W. Va. 102 Northwestern Ohio, etc., Co. v.
385; 12 S. E. Rep. 522. Browning. 15 Ohio Cir. Ct. Rep. 84;
09 Hukill V. :\reyers, 36 W. Va. 8 Ohio Cir. Dec. 188.
639; 15 S. E. Rep. 151. i03 Akin v. Marshall Oil Co., 188
Pa. St. 602; 41 Atl. Rep. 748.
202 OIL AND GAS.
it forfeited, under eertain cireunistances, which have occurred,
the execution of a second lease after the occurrence of tJie facts
autliorizing a forfeiture is a sufficient declaration of the lessee
that he is exercising his right of option to declare the first lease
forfeited or at an end/"*
§168. Surrender after assignment or conveyance. — Forfeiture.
After he has made an assignment of a lease, the lessee has no
power to make a surrender of it, nor to take advantage of his
own default, wdiere he would have had the right if he had re-
mained the owner of the lease ; nor can the lessor declare a for-
feiture after he has conveyed away the premises.^"^ After the
lessor has transferred a lease, he has no |X)wer to accept a sur-
render of it, but the acceptance must be by his assignee or
grantee.^'*'^
§169. Forfeiture of only part of lease.
If the lease require several wells, within different periods of
time to be drilled, a failure to put down all of them wutliin
the several times required Avill not ahvays work a forfeiture of
the entire lease. Of course, to prevent a forfeiture of the
entire lease the wells actually drilled must be paying or pro-
ducing wells, for dry wells will not keep a lease alive. In
one case where the wells were to be completed within successive
periods of time, and while two were completed the third was
not, the lease was considered forfeited as to one-third of the
■territory covered by it.^°^ If the number of wells to be sunk
104 Huggins V. Daley, 99 Fed. Rep. St. 230; 27 W. N. C. 87; 20 Atl.
606; 40 C. C. A. 12; 48 L. R. A. Rep. 934; 11 L. R. A. 236.
320. 107 Cryan v. Ridelsperger, 7 Pa.
A second lease that is void, be- Co. Ct. Rep. 473. See Baldwin v.
cause the lessee therein had notice Ohio Oil Co., 13 Ohio Cir. Ct. Rep.
of tne first lease, will not work a 519; 7 Ohio Dec. 50.
forfeiture. Friend v. ISIallory, 52 A stipulation that twenty-two
W. Va. — ; 43 S. E. Rep. 114. acres shall be forfeited for everyone
105 Ohio Iron Co. v. Auburn Iron of the required wells not sunk is
Co., 64 Minn. 404; 67 N. W. Rep. void for uncertainty. Thomas v.
221. Kirkbridge, 15 Ohio Cir. Ct. Rep.
106 Thompson v. Christie, 138 Pa. 294; 8 Ohio C. D. 181.
FORFEITURE OF LEASE. 203
on the leased premises are not stated in the lease, the lessee
cannot escape by sinking a single producing well, or even two
or three, if not sufficient to develop and secure all the oil under
the surface. He must sink enough wells to secure all the oil,
especially if it is probably escaping to adjoining premises in
which he is interested ; and if he do not, he will forfeit all that
part of the premises not sufficiently occupied with wells."* By
a number of leases, similar in terms, obtained from several
persons, a lessee acquired the exclusive right in a large terri-
tory^ to drill and operate for oil and gas. He agreed to give
each lessee a certain portion of the oil obtained, and pay a cer-
tain annual sum for each gas well. On pain of forfeiture he
was required to put down one test well within a year from the
date of the leases. The leases were to run ten years. The
putting down of one test well within a year was not considered
sufficient to vest in him an absolute right to the territory cov-
ered by all the leases, it was said, but he must proceed and
develop within a reasonable time after sinking such test well at
least one well on each of the leased premises, and a failure to
do so as to any one lease was an abandonment of the premises
described in it. In passing on the case the court used the fol-
lowing language :
" With the conclusion reached by the lessors that Johnston
(the lessee) had abandoned the leases, we fully concur, and we
further find from the evidence that, as to these particular leases,
it was his intention to do so. Both public and private interests
require that such facts as are disclosed by the testimony in these
cases should be held by a court of equity to constitute abandon-
ment of the leases involved, because of non-development. It
should be kept in mind that Johnston in all these leases was
the party who was to take initiative. He was the actor who
was to commence development and make the search on all the
losColgan v. Forest Oil Co., 30 dergrift, 30 Pittsb. L. J. (N. S.) 39.
Pittsb. L. J. (N. S. ) 68. In this But both cases were reversed, \oung
case twenty days were given in v. Forest Oil Co.^ 194 Pa. St. 243;
which to sink the required wells, 45 Atl. Rep. 121 ; Colgan v. Forest
and if not so done, the unoccupied Oil Co., 194 Pa. St. 234; 45 Ati.
part of the premises were to be for- Rep. 119; Coffinberry v. Sun Oil Co.
feited. Same rule in Young v. Van- (Ohio) 67 N. E. Rep. 1069.
20-1 OIL AND GAS.
land described in them. This he, fur reasons of his own, so far
as these particular leases were concerned, failed to do from
1889 to 1897. He now asks a court of eciuitv, after such un-
reasonable delay on his part, and gross neglect of his implied
duty, and after there has been a material change in the situa-
tion, brought alwut by the efforts of others in interest, to decree
that he is entitled to the possession of the property he had aban-
doned. To so decree would be not only unconscionable, but
would retard tlie development of the country, and at the same
time it would reward those who have been negligent, and punish
those who have been prompt, in the discharge of their contract
duties.
" After Johnston caused the Smitb well tx) Ix' drilled it wns
his privilege to determine — using for that purpose the in-
formation secured by that well — in what direction nml in what
particular tracts of land he would make his subsequent devel-
opments, and, if, in so doing, his conduct and his declarations
resulted in the abandonment of the leases located in other sec-
tions, for any niisfortuno occasioned to him thereby he must
hold his owTi judgment responsible and not the judgment of the
court. It was evidently not the intention of Johnston, when
the numerous leases were executed to him in 1889, amounting
in the aggregate to over twenty thousand acres, to drill wells
upon each and every separate tract, but he intended, using each
separate search as an indicator, to locate, if possible, tlie points
where oil and gas could be found, and, having done that, to
abandon those leases that previous development had sho\\Ti to
be located in unprofitable localities. That he, and those operat-
ing under him, regarded the leases in the Elk Fork region of
Tyler County as worthless, in an oil-producing sense, is, we
think, fully showm by the testimony, and such oonclusion on
his and their part is but another illustration of the uncert.ainty
and surprises that come to those engaged in the development
of oil territory."
An important feature of the case is treated as follows :
" The fact that all the Paova leases contained the following
clause, ' subject to the Johnston lease,' must be considered in
connection mth the circumstances surrounding the parties when
FORFEITIRI-: OF LEASE. 205
they executed the same. In our judgment, the lessors intended
by tliese words to incorporate into their contracts tlie fact that
they had advised their lessee that the land had been theretofore
leased to Johnston, and that he was to take it subject to the old
lease, with the understanding tliat if tlie Johnston lease was
valid," he took nothing by the new gi-ant, but that if it was in-
valid, the conveyance was then to stand as a contract between
the parties. To hold, as insisted upon by counsel for defend-
ants, that said words were intended as an admission of the va-
lidity of the Johnston leases, would be to hold, that the parties
to the new leases, admitted by them that the lessor had nothing
to grant, and that consequently there was notliing for the lessee
to take. Clearly does it appear that such was neither the be-
lief nor the intention of the parties. Under similar circum-
stfinces, learned counsel would doubtless have employed other
and more apt language, but still we think the words used are
sufficient to enable the court to read the contract as we have con-
strued it, and thereby get not only near to, but exactly at, the
intention of the parties." ^"^
§170. Partial development — abandonment.
A partial development may prevent a forfeiture for a failure
to develop, even as to tlie entire premises. Thus where a lease
was for twenty years; two wells to l>e drilled, tlie first within
the first year, and tlie second in two years ; and if the second
produced sufficient gas to be capable of use, tlie consideration
in full for such well to be a certain rental ; if tliere was delay in
the completion of the two wells, die annual rentals were to be
paid and accepted in full consideration for the delay; and the
lessee drilled the first well, but not the second, obtained gas
in sufficient quantity to use it; for more than two years paid
the rental, when the well and casing were plugged, and the
" rig " taken do^\^l ; and tlie lessee never drilled the second well,
nor paid the lessor anything for a failure to do so, it was held
100 Elk Fork Oil and Gas Co. v. Jennings, 84 Fed. Rep. 839.
206 OIL AND GAS.
that these facts did not show an abandonment of the lease.^^*
But where the lessee was to complete a well within six months,
or thereafter within sixty days remove all machinery and build-
ings, in which event the lease was to be null and void, unless
further prosecuted after the first well was drilled — it was held,
after the first well was drilled, that the lease was avoided by
a failure to further operate for mining purposes for a period of
several years."^ A lessee of seventy-four acres, leased on a
royalty for a term of five years, and as much longer " as oil
or gas was found in paying quantities," by the terms of the
lease was required to complete a well thereon witliin three
months. He completed tliis well on time, but drilled no others,
and made no serious effort to do so during the five years, al-
though the lessor repeatedly urged him to do so. The well
drilled was a small producer, not paying the expense of operat-
ing it. After the expiration of the term of five years, the les-
see applied to a court of equity to enforce the lease against the
lessor and those to whom a lease had been given after the ex-
piration of the five years ; but the court refused to do so, basing
its refusal on tlie ground that the plaintiff had not complied
witli the implied condition of tlie lease, which required him to
fievelop the property in good faitli.^^'
gl71. Lessee draining leased premises by wells on adjoining
territory.
A lessee cannot hold the leased premises and drain them by
sinking oil wells on adjoining 2>remises; and if he persist in
-1^ Ahrns v. Chartiers Valley Gas m Heintz v. Shortt, 149 Pa. St.
€o., 18S Pa. St. 249; 41 Atl; Rep. 286; 24 Atl. Rep. 316.
739. See Monfort v. Lanyon Zinc The law recognizes a distinction
Co. (Kan.) 72 Pac. Rep. 783. between the abandonment of opera-
Where no work was commenced, tion under an oil lease and an inten-
it was held there was no abandon- tion to abandon or surrender the
ment of a hundred years' lease to lease itself. Parish Fork Oil Co. v.
tnine coal, even though the lessee Bridgewater Gas Co., 51 W. Va.
Iiad neither paid rent nor searched 583; 42 S. E. Rep. 655.
for coal. Plummer V. Hillside Coal 112 Barnsdall v. Boley, 119 Fed.
and Iron Co., 160 Pa. St. 483; 34 Rep. 191.
\V. N. C. 366; 28 Atl. Kep. 853.
FORFEITURE OF LEASE. 207
such conduct he will forfeit his lease. In an instance of this
character, or at least where there was danger tliat the leased
premises would be drained of its oil by wells operated on ad-
joining premises by the lessee, it was held to be the duty of the
lessee to open as many w^ells on the leased premises as was
necessary to secure the common advantage of the lessor and him-
self, and to prevent the loss of oil under the lessor's land by
drainage into the adjoining wells; in default of which the lease
might be declared forfeited."^
§172. Lessee draining away oil by sinking wells on adjoining
premises.
But if the lessee has complied with the terms of his lease, the
lessor cannot declare a forfeiture on the ground that such lessee
has leased adjoining territory and is draining his, the lessor's,
premises through the wells upon such territory, although the
conduct of the lessee may inflict upon him great damages."*
§173. Inability to complete work. — Inclement weather.
The lessee cannot always urge successfully as an excuse that
the weather was so inclement that he could not drill the wells
within the time fixed by tlie lease, or operate them continuously
after they were drilled. In order to do this he should have
inserted in the lease a clause preventing a forfeiture because of
that fact.""' In the first case cited the lease required one well
to be- completed within five months, a second within one year,,
and a third within two years. The first and second wells wen^
completed on time ; but the third was not, although before the
expiration of the two years the lessee had placed timber upon
the leased premises for a eomjilete carpenter's rig, but was un-
113 Kleppner v. Lemon, 170 Pa. St. Bridpewater Oil Co.. 51 W. Va. 58.'5 ;
.^02; 38 W. N. C. 388; 35 Atl. Hep. 42 S. E. Rep. 655.
109; Coffinberry v. Sun Oil Co. us Cryan v. Ridelsperger, 7 Pa-
(Ohio) 67 N. E. Kep. 1069. Cir. Ct. Rep. 473; Kennedy v. Craw-
114 Ohio Oil Co. V. Harris, 1 Ohio ford, 138 Pa. St. 561; 21 Atl-
Dec. 157 ; same case 1 Ohio N. P. Rep. 19.
132. See Parish Fork Oil Co. v.
208 OIL AND GAS.
able to secure workmen to build tlie rig. The failure to secure
workmen was held to be no excuse, and on trial the lease was
declared forfeited. This was a nisi [jrius decision. But in the
State where this decision was given the Supreme Court held that
if the lessee, on the last day of the period allowed, in good
faith entered on the premises and began o|>erations preparatory
to drilling a well, but was prevented by the lessor from proceed-
ing farther (it being impossible to l)egin the well on time),
there was no forfeiture ; ^^" and in another State where the
lessee was not able to complete the well on time, because the ex-
cessively muddy condition of the roads rendered it impossible
to get the necessaiy machinery on the premises in time, it was
held that there was no forfeiture.^^' Where an excuse was set
up by lessees as a defense that they were working other leases
and were '' approaching these lands as fast as they could, and
that they could not work these lands for want of railroad facili-
ties," it was held that this was an insufficient excuse. " Coun-
sel's contention is," said the court, " that the enterprise could
not be abandoned unless it had been begun. They insist that
the meaning of the contract is that the lease continues to subsist
for tlie full term of twenty years, though not a single thing is
done under it on the land, and even though no intention exists
on the part of the lessees to do anything under the tenns thereof.
We think it quite clear that such was not the intent of the
parties as gathered from the lease itself. Xo reason is \ier-
ceived why it would not l>e as injurious to the lessors to fail to
commence operating the mines and quarries for twelve months
as to cease operating them, after beginning, for a period of
twelve months." ^^^
116 Henderson v. Ferrell. 183 Pa. nsWoodard v. Mitchell, 140 Ind.
St. 547; 38 Atl. Rep. 1018. 406; .39 N. E. Rep. 437.
117 Fleming Oil and Gas Co. v. See where a failure to begin for
South Penn. Oil Co., 37 W, Va. 645; five and a half years to develop a
17 S. E. Rep. 203. See Forney v. mine was held not to work a for-
ward (Tex. Civ. App.), 62 S. W. feiture. Baumgardner a'. Browning,
Rep. 108; Lane v. Gordon. 18 N. Y. 12 Ohio Cir. Ct. Rep. 73; 5 Ohio Cir.
App. Div. 438; 46 N. Y. Supp. 57. Dec. 394.
FORFEITURE OF LEASE. 209
§174. Mortgage of leasehold may work a forfeiture.
A lease may prohibit the lessee placing a mortgage on the
leasehold under the penalty of its forfeiture if he do so. And
if the lease prohibit, under the penalty of forfeiture, a transfer
of it by the lessee, the mortgaging of the leasehold by siicli
lessee, followed by a sale thereunder, will have the same effect
as a transfer of the lease. Where in such an instance, the
leasehold was sold under the mortgage at a constable's sale, it
was said : " The mortgage uix)n the leasehold through which
he claims, fell with the forfeiture. The creation of the mort-
gage was prohibited in substance by tlie lease, and was a ground
of forfeiture. The lessee, having no right to assign his lease,
could not do so indirectly by mortgaging it. As against the
landlord the mortgage was a nullity, and it cannot be success-
fully set up as against the title acquired through the forfeiture
and constable's sale." ^^^
§175. When work must be completed.
Xot only must tlie work l>e commenced within the time speci-
fied, but it must be completed within the time limited, in order
to avoid a forfeiture. But if the work has teen completed in
time, a forfeiture will not l>e declared simply because it has not
been completed in the order specified in the lease. Thus where
two wells were to be completed the first six months of the
second year, and two more the second six months of such year,
a completion of four wells within that year was considered to be
such a substantial compliance with the lease as to defeat a
forfeiture.^"'' Where the lease required a well to be completed
within three months, and all wells within eighteen months, it
was held that the court would not direct how the lessee should
work the premises, or how many wells should be sunk ;■ and that
the lessor could insist on a forfeiture simply because the lessee
had not been suflSciently active in developing the property.^'^
119 Becker v. Werner, 98 Pa. St. 121 Baldwin v. Ohio Oil Co., 1.3
555. Ohio Cir. Ct. Hep. 519; 7 Ohio
120 Thomas v. Kirkbridge, 15 Ohio Dec. 50.
Cir. Ct. Rep. 294; 8 Ohio Dec. 181.
210 OIL AND GAS.
Where a well was to be commenced witliin sixty days and com-
pleted within five months, a failure to complete a well within
five months tliat was begun within the sixty days was held to
work a forfeiture of the lease.^"^
§176. Excavating for oil means bringing it to the surface.
Where a lease provides for tlie diligent prosecution of the un-
dertaking to success or abandonment and for a forfeiture if oil
be not excavated in paying quantities on or before a given date^
the oil must be raised to the surface, and merely finding it in
the earth witliin the time given will not prevent a forfeiture, if
it be not pumi>ed or rise to the surface of tlie earth. ^'^
§177. Failure to pay royalty or report them.
A mere failure to pay royalties due under the lease will not
give the lessor sufficient ground to declare a forfeiture, unless
by the express terms of the lease he is given that right and
power. ^^* But a failure to either develop the leased premises
or pay rent, within the time named, may be sufficient evidence
from which an inference of abandonment may be drawu.^^^ If
the lessor is to receive a certain portion of " all of the profits '^
realized from oil or gas found on the premises, that means the
net profits ; and he cannot declare a forfeiture for neglect of the
lessee to account at a time when the proper expenses of the lease
exceed the receipts.^"® A lease provided for a yearly rental of
122 Cleminger v. Baden Gas Co., Pa. St. 83; 47 All. Rep. 927; Barn-
159 Pa. St. 16; 33 W. N. C. 480; hart v. Lockwood, 152 Pa. St. 82;
28 Atl. Rep. 293. 25 Atl. Rep. 237.
123 Kennedy v. Crawford, 138 Pa. 120 Potterie Gas Co. v. Potterie,
St. 561; 21 Atl. Rep. 19. See Parish 179 Pa. St. 68; 36 Atl. Rep. 232.
Fork Oil Co. v. Bridgewater Oil Co., In such an instance, a stipulation
51 W. Va. 583; 42 S. E. Rep. 655. that the lessee should " use all econ-
124 Wakefield v. Sunday Lake, omy in the conduct and management
etc., Co., 85 j\Iich. 605; 49 N. W. of the mining enterprise," is too un-
Rep. 135; Ammons v. South Penn. certain to be recognized as a condi-
Oil Co., 47 W. Va. 610; 35 S. E. tion, for the breach of which a for-
Rep. 1004. See Edwards v. Tola Gas feiture may be enacted. Benavides
Co., 65 Kan. — ; 69 Pac. Rep. 350. v. Hunt, 79 Tex. 383; 15 S. W. Rep.
125 Marshall v. Forest Oil Co., 198 396.
FORFEITURE OF LEASE. 211
:foiir hundred dollars, payable quarterly, the amount to be de-
ducted from royalties when in excess of that sum. The royal-
ties were payable quarterly on ore as sold and delivered. The
lease also provided that if payments were not made at the time
specified, tlie lease should be void. It was held that a failure
to fully pay all royalties on ore sold and delivered at the end of
each quarter year worked a forfeiture of tlie lease.^"^
§178. Payment of rent will not prevent forfeiture for neglect to
develop.
Payment of tlie rent will not always prevent a forfeiture for
a neglect or failure to develop, or for a neglect to operate after
development. Thus where the lease was for two years, and as.
much longer as oil was found in paying quantities ; and it pro-
vided for the commencement of a well in thirty days, and
its completion in ninety days, or, in default, the payment of an
annual rental of sixty dollars from the time named for the com-
pletion of the well until it should in fact, be completed ; it was
held that the lessee could not keep the lease alive after the two
year limit by the payment of an annual rental merely.^"^ To
hold that he could do so, was considered by the court to convert
the lease into a perpetual option to drill for oil and gas, when
the apparent purpose of the lessor was to compel the develop-
ment of his land within the period of three years." ^'^ If a
lease provide that it shall be forfeited for a neglect to pay any of
127 Boys V. Robinson (N. J. L.), Rep. 1004; Boys v. Robinson (N. J.
38 Ail. Rep. 813. L.), 38 Atl. Rep. 813; American
The amount of deposit made by a Window Glass Co. v. Williams (Ind.
tenant to secure the observance of App.), 66 N. E. Rep. 912.
the conditions of a lease, cannot be 129 Tne Appellate Court cited Hol-
applied to the payment of rent, so lingsworth v. Fry, 4 Dall. 345, and
as to avoid a forfeiture, otherwise Packer v. Noble, 103 Pa. St. 188.
than in conformity to the conditions See National Oil, etc., Co. v. Teel
of the deposit. Rosenquist v. Ca- (Tex. Civ. App) , 67 S. W. Rep. 545;
nary, 15 N. Y. Misc. 148; 36 N. Y. Gadbury v. Ohio, etc., Gas Co.
Supp. 979 ; 72 N. Y. St. Rep. 422. (Ind.), 67 N. E. Rep. 259; Gad-
128 Western Pennsylvania Gas Co. bury v. Ohio, etc.. Gas Co. (Ind.
V. George, 161 Pa. St. 47; 28 Atl. App.), 65 N. E. Rep. 289.
212 OIL AND GAS.
the payments required to be made, a whole payment is meant
and not a balance on a running account."''
§179. Must pay rent although no oil on premises.
If the lease require the lessee to complete an oil well witliin
a certain time, or thereafter pay a certain sum annually until
a well is completed, it is no excuse for not drilling the well
that the premises were worthless for oil, and for tliat reason a
well was never completed. In passing on the case, the court
said :
" I do not think, however, that the fact of there being no oil
or gas on the land, no matter how soon foimd out, could avail the
defendant. The lessors were entitled to insist that this fact
should be made manifest in the very manner agreed upon, or to
demand the sum stipulated to be paid for delay. The covenant
on this subject is absolute and unqualified, and provides for the
doing of nothing that is illegal and improbable. If a clear,
positive covenant, like the one before us, to do a lawful thing
or pay a certain sum of money for not doing it, can be evaded
by showing that the performance of the act did not benefit the
covenantee, it is hard to tell where we could pro|>erly stop in
applying the rule. We might presently reach a point where an
action for liquidated damages for breach of an agreement not
to engage in a certain business within designated limits, might
be defeated by proving that everyone conducting the same busi-
ness in the neighborhood had been losing money, and, for reasons
shown, would probably continue to do so. . . . That the
contract may have proved a losing one to the lessee or his as-
signee, the defendant, is neither here nor there. To quote the
popular saying, ' a contract is a contract ' and no sufficient reason
appears why the one under consideration should not be en-
forced." "^
1-" Westmoreland, etc., Gas Co. v. i3i Springer v. National Gas Co.,
i)eWitt, 130 Pa. St. 235; 18 Atl. 145 Pa. St. 430; 22 Atl. Rep. 986.
Rep. 724; 5 L. R. A. 731.
FOKFEITURE OF LEASE. 213
§180. Lessee must pay past rents. — Damages.
A forfeiture declared by the lessor does not release the lessee
from the payment of rents or royalties or other sums that had
matured at the time of the declaration of forfeiture. And the
same is true in case of a surrender. " The lessees had the right
to surrender the lease at any time, but such surrender was not
a payment of what they then owed." In the case from which
this quotation has just been made the lease provided that the
lessee should commence a ^vell within one month from the date
of tlie lease, or in lieu thereof, pay the lessor two dollars per
day until it was commenced, or surrender the lease. It was
held that upon sun-ender of the lease that the payments contem-
plated were to be made up to the time of the surrender ;
(although not as a condition of the surrender), and, when so
made, they should be in full satisfaction for any damages by
reason of the failure of the lessee to perform the conditions of
the lease."^
§181. Lessor consenting to abandonment.
If tlie lessor consent to the abandonment by the lessee, he
cannot thereafter insist that tlie lessee must pay the penalty or
the rent stipulated for in the lease. Such was decided to be the
case where a test well was drilled, which proved to be a dry
hole, yielding neither gas nor oil, the lessee openly and publicly
removing the machinery from the premises, abandoning all
further operations on the premises ; and the lessor, knowing that
the well was a dry hole and that the premises had been aban-
doned, making no claim upon the lessor for any sum of money
due under the lease for several years, the lessee waiving a writ-
ten notice of forfeiture, and the lessor subsequently granting to
another party an option to buy all the coal underlying the sur-
face of the premises. ^■''^
132 Bettman v. Shadle, 22 Ind. i33 May v. Hazelwood Oil Co.,
App. 542; 53 N. E. Rep. 662. See 152 Pa. St. 518; 25 Atl. Rep. 565.
also Woodland Oil Co. v. Crawford, See Stage v. Boyer, 183 Pa. St.
55 Ohio St. 161; 36 Ohio Wkly. L. 560; 38 Atl. Rep. 1035.
Bull. 231; 44 N. E. Rep. 1093; 34
L. R. A. 62.
214 OIL AND GAS.
§182. Estoppel of lessor.
A lessor by his conduct may estop himself to declare a for-
feiture. Such an instance is where a lessee is given to under-
stand, before forfeiture incurred, that if a partieular covenant
in the lease is not performed on time there will l)c no forfeiture
declared or enforced. Perhaps this might be put on the ground
of waiver, although that term more properly applies to instances
where the forfeiture has been incurred before the acts of
waiver have taken place, yet preceding the declaration of for-
feiture. Any act of the lessor that lulls the activity of the
lessee, and upon which he has a right to rely, tliat takes place be-
fore a forfeiture is incurred, and which would not have been
jiennitted by the lessee without such act of the lessor, may well
be deemed to estop such lessor from insisting upon a forfeiture
for a non-performance of the particular covenant of which lack
of performance is complained and insisted upon by the lessor as
cause for a forfeiture. It would be inequitable to permit a for-
feiture under such circumstances.^^* But an estoppel to assert
one breach cannot be made to apply to another ; as, for instance,
if there is an estoppel to insist upon a forfeiture to commence
a well within sixty days, it cannot be used to prevent a forfeiture
for having failed to complete the well within five months.^^^ An
estoppel may also arise where the lessor, after forfeiture in-
curred, permits the lessee to exjiend considerable, or at least
large, sums of money in developing the premises, knowing, or
at least having good reasons to believe, that the lessee does not
think a forfeiture will be enforced. ^^° This is particularly true
of the payment of rent on the precise day when due, which in
point of time is not always regarded as of the essence of the
contract. " There is a wide distinction even in equity between
forfeiture for failure of punctual payment of money," said the
court in one case, " where time is of the essence of the con-
tract and where it is not. If parties choose to stipulate for
matters as essential, it is not for courts to say they are not so,
i34Steiner v. Marks. 172 Pa. St. 159 Pa. St. 16; 28 Atl. Rep. 293.
400; 33 Atl. Rep. 69.5. iseDiiffield v. Michaels, 102 Fed.
135 Cleminger v. P)aden Gas Co., Rep. 20.
FORFEITURE OF LEASE. 215
l)ut. ill the absence of a clear agreement for materiality, courts
will look into the nature of the transaction and be governed by
the real bearing of the facts upon the intentions and rights of
the parties." '" If the lessor has prevented tlie lessee complet-
ing a well in time, he is estopped to declare a forfeiture for a
failure to keep the covenant of the lease in that respect.'''
§183. Demand for compliance with lease.
If the lessee has made default, unless the lease provide other-
wise, the lessor is not required to make a demand on him to
comply with the lease, especially if he, and not the lessee, is in
possession.^'" This is especially true if the lease authorizes in
terms the lessor to re-enter without demand or notice."''
§184. Abandonment a question of intention.
Abandonment of a lease is a question of intention, and is to
be determined only on an investigation of the facts. Mere
lapse of time may not be sufficient to detennine that question,
but it may be " aided and strengthened by the acts and declara-
tions of the tenant evincing the intention permanently to
abandon." "'
§185. Forfeiture a question for jury.
Usually whether or not there has been a forfeiture or aban-
donment "^is a question for the jurs^ Thus a lessee was to com-
mence drilling a Avell within ninety days from the date of the
lease, and '^ prosecute said drilling with due diligence t.o
success or abandonment"; and it was jirovided that if oil
or gas be not pumped or excavated in ])aying quantities on or
before a certain date, then the lease was to be null and void ;
and the lessee began the work on time and prosecuted it contin-
137 Lynch V. Versailles Fuel Gas i39 Maxwell v. Todd, 112 N. C.
Co 165 Pa. St. 518; 30 Atl. Rep. 677; 16 S. E. Rep. 926.
084 See Northwestern Ohio, etc., i40 Island Coal Co. v. Combs, 152
Gas Co. V. Brownin- 15 Ohio Cir. Ind. 379; 53 N. E. Rep. 452.
Ct Rep. 84; 8 Ohio Cir. Dec. 188. i4i Rams v. Tanner, 66 Pa. St.
i38Stahl V. Van Vleek, 53 Ohio 297: Parish Fork Oil Co. v. Bridge-
St 136; 41 N. E. Rep. 35. water Gas Co.. 51 ^^. Va. oS3; 4-
S. E. Rep. 655.
216 on, AND GAS.
uously until five months after the (hite in the lease set for
its forfeiture, when he withdrew the eiisinij: and left the prem-
ises for five months longer. ITe ehiinied tliat he had found oil in
])aying quantities, but admitted he had never pum})ed any frdui
the well. In an action involving the validity of the lease, it was
held that the lessee had no discretion to delay operations indefi-
nitely, provided he produced oil or gas in paying (pumtities by
the date fixed, but he was bound to exercise diligence dnring the
whole period; and it was a question for the jury whether a
forfeit had been incurred because of a lack of due diligence.^'*"
A lease of certain piremises provided that if no well had been
begun and prosecuted witli due diligence within four months
it should be void. It was held not error to refuse to instruct
the jury that if the lessee, before the tenriination of the lease,
hauled lumber on the premises with the purpose to begin the
well, such act was a beginning of the well within the terms of
the lease ; for the reason as tJie lessee had hauled lumber on the
premises the day before the lease expired, it was not for the
court to determine the question of forfeiture as a matt-er of law,
but the question was one for the jury to decide, in connection
with the testimony as to the general understanding among per-
sons engaged in boring wells as to when a well was begun. ^^^ So
where, under a similar lease, the lessee, within the time drilling
on the well was to be begun, commenced the construction of nec-
essary machinery on the premises, and was engaged in seeking
for contractors to do the work, the question whether the lessee had
used due diligence in constructing the well was considered one
for the JLiry.^** Whether there has been an abandonment by the
lessee is also a question for the jury."^ If there be no dispute as
142 Kennedy V. Crawford, 138 Pa. App.), 62 S. W. Rep. 108. See
St. 561; 27 W. N. C. 306; 21 Atl. Fleming Oil and Gas Co. v. South
Pvep. 19; Rynd v. Rynd Farm Oil Penn. Oil Co., 37 W. Va. 645; 17
Co., 63 Pa. St. 397 ; Karns v. Tan- S. E. Rep. 203.
ner, 66 Pa. St. 297; Wesling v. i" Lane v. Gordon, 18 N. Y. App.
Kroll, 78 Wis. 036; 47 N. W. Rep. Div. 438; 46 N. Y. Supp. 57; Hein-
943; Nelson v. Eachel, 158 Pa. St. ouer v. Jones, 159 Pa. St. 228; 28
372; 33 W. N. C. 281; 27 Atl. Rep. Atl. Rep. 228.
1103. i45Bartley v. Phillips, 165 Pa.
143 Forney v. Ward (Tex. Civ. St. 325; 30 Atl. Rep. 842.
91'
FORFEIT URP: OF LEASE.
to the acta done, and none .-ith reference to the inference to be
drawn from them, it is error to submit the question of forfeiture
to the jury.
§186. Suit to cancel lease for non-development of territory.
A court of equity has full power U, entertain a suit to cancel
a lease for neglect « refusal of the lessee t» develop tlie preuuses
leased Thus where the lease was for twenty years, or so long
as oil and gas should be found in payiug quantities; and seven
vears had elapsed since the time fixed for drilling a test well, it
"was held that a court of equity would cancel the lease t^ie pre-
sumption being that the lessee had abandoned it.- But if the
lessor is in actual possession, and the terms of the lease are
such as to render the lease void if any particular covenant is
not kept, then the lessor cannot maintain an action in equity to
cancel the lease, although he may sue in assumpsit for arreai-s of
royalty, or, possibly in ejectment.- Unusual delay will work
a forfeiture of the right to maintain a suit to cancel a lease,
where the ground of forfeiture is a failure to pay royalties.
In an action to cancel the lease for non-development or failure
to carry on mining oix-rations, it is proper to show tliat the
lessee had failed to fun.ish ,>eriodical statements of the oil pro-
duced, as required by the contract; that he is insolvent, and
creditors are seizing the mining apparatus, and that the property
is likely to be destroyed or injured by discontented and unpaid
..,McK„igKt V. Kreut. 51 Pa. Tex. Civ. App. ^'^-f^^^'^J^Z
" 429- Edwards v. lola Uas ^o., u^
feiture incurred. Anierioan Window dall v. Mey, U^ ^f'^^lJ^^;
Glas. Co. V. Williams (Ind. App.). Pa"sh Folk 0,1 Co. i. End
66 N. E. Kep. 912 ; Gadbnry v. Oli.o, 0,1 Co., »1 « . Va^ 583 ,4
^ ,T J ^ r- XT V Rpn Rep 655; Gadbury v. unio, etc.,
etc., Gas Co. Ind.), Qi N. L. Kep. ^^p. u , j
man v Shadle. 22 Ind. App. 542; 53 1- ; 27 Atl. Rep. 5^«^
N. E. Rep. 662 ; Cowan v. Bra.lfovd was twelve^ y^ar. S^ Co. . N
Iron Co.. 83 Va. 547; 3 S. E. Rep. ^^ ^t-, Co., o- ^^ . Va.
120; Southern Oil Co. v. Wilson, 22 E. Rep. 128.
218 OIL AND GAS.
workmen.^^" Ejectment lies at tlie instance of tlie lessor or his
grantee to recover possession, without making any re-entry, and
Avithout demanding the rent or royalties due and unpaid.'"'
vSo will a suit to quiet title.^^' The lessee Ciinnot stay the for-
feiture proceedings, at least after notice of forfeiture given, by
an appeal to a provision in the lease whereby certain questions
Avere to be submitted to arbitration."^ If the premises in part
have been developed, the suit cannot be maintained for the for-
feiture of tlie entire lease, but must be for damages."* Where
the time of the payment of the rental is not a part of the
essence of the lease, equity may excuse default in its payment,
and will not declare a forfeiture and cancellation of the lease, if
it would be inequitable so to do."^
§187. Relief from forfeiture.
Equity has power to grant relief from a forfeiture incurred
where tlie lessee has not in fact been guilty of any act of neglect,
although he has not carried out the provisions of the lease to
their full extent."*' Such was the case of the failure to deliver
the lessor his share of oil where there was such an extraordinary
and unexpected flow as to make a delivery impracticable. If it
would be unconscionable to allow a forfeiture to be enforced,
a court of equity will grant relief against such forfeiture. '^^
If a forfeiture for non-payment of money, or for failure to per-
form any other act, will admit of accurate and full compen-
sation, and is provided as a mere penalty with a view to enforce
150 Sunday Lake Mining Co. v. is-* Harness v. Eastern Oil Co., 49
Wakefield, 72 Wis. 204; 39 N. W. W. Va. 232; 38 S. E. Rep. 662.
Rep. 13(ik In this case it was also Suit to cancel so much of the lease
held that a court having jurisdic- as pertains to the undeveloped
tion of the parties could grant re- premises will lie. Coffinberry v. Sun
lief from a forfeiture, though the Oil Co. (Ohio) 67 N. E. Rep. 1069.
mines were situated in another iss Edwards v. lola Gas Co., 65
State, and that the court could re- Kan. — ; 69 Pac. Rep. 350.
store the possession of them. isg Edwards v. Tola Gas Co., 65
151 Boys V. Robinson (N. J. L.), Kan. — ; 69 Pac. Rep. 350.
38 Atl. Rep. 813. ist Thompson v. Christie, 138 Pa.
152 Island Coal Co. v. Combs, 152 St. 230; 20 Atl. Rep. 934; 11 L.
Tnd. 379 ; 53 N. E. Rep*' 452. R. A. 236.
153 Acme Coal Co. v. Stroud, 5
Lack. Leg. News (Pa.) 169.
FOBFEITUKE OF LEASE. 21 1>
a performance of another and principal obligation, a court of
equity will gi'ant relief against it, and will not permit it to
be used for a different and inequitable purpose. Thus a lease
provided for rent payable for delay in drilling a well ; but as
no time was specified for the payment of rent, it fell due by
operation of law at the end of each year. For several years,
instead of drilling a well, the lessee paid the rent. He then
began drilling a well, and at great expense obtained oil in pay-
ing quantities. By oversight the lessee failed to pay an annual
rent when it fell due ; and six days after default the lessor
notified him to remove his machinery, and the next day declared
a forfeiture. During these six days the lessee spent consid-
erable money on the leased premises in their development. The
court considered the lessee's action lacked that promptness that
was essential to declare a forfeiture, that his action was uncon-
scionable, and that a forfeiture could not l>e enforced. ^^^ If the
principal thing is to sink a well, then relief in equity will not be
given upon the tender of th.e periodical and unpaid rental, where
neglect to sink the well cannot be compensated for in damages. ^^^
Relief can be afforded by a court having jurisdiction of the
parties, although the premises lie in another State ; and the court
can restore possession of them to the lessee.^*"^ If the time of
payment of the rental is not in express tei*ms or necessary impli-
cation made the essence of the lease, equity may excuse a default
in payment, and will not declare a forfeiture and cancellation
of it in a case where it would be inequitable and unoonscion-
able.^'^
§188. Time to avoid forfeiture.
Usually courts will give some time after the date of forfeiture
fixed in the lease to perfonn the covenant on which the forfeit-
158 Lynch v. Versailles Fuel Gas isa Hukill v. Guffey, 37 W. Va.
Co., 16.5 Pa. St. 518; 30 Atl. Rep. 425; 16 S. E. Rep. 544.
984. Such would be the case where iso Sunday Lake Mining Co. v.
the lessor entered for a failure to Wakefield, 72 Wis. 204; 39 N. W.
pay rent on time, when the payment Rep. 136.
was hindered by his acts. Young v. lei Edwards v. lola Gas Co., 65
Ellis, 91 Va. 297; 21 Atl. Rep. 480. Kan. — ; 69 Pac. Rep. 350.
220 OIL AND GAS.
ure depends. Thus where a lease provided for the drilling of
wells within a stated time, or payment of a yearly sura in ad-
vance, it was held that the lessor could not declare a forfeiture
immediately at the termination (if a year for which such pay-
ment had heen made in, because no wells had been drilled, even
tliough he had the right to refuse payment for a succeeding
year ; for the lessee had a right to a reasonable time after the
expiration of the year paid for to drill a well and operate the
premises.^"" So, in a case of limitation. Thus where a lease
was given for five years and as much longer as gas and oil was
found in paying (luantities, on the failure of a well which had
produced gas in paying quantities for a number of years, and
for which the rental had Ix'en promptly paid, it was held that
the lessee was entitled to a reasonable time to drill at other loca-
tions to find gas or oil in paying (piaiititics, and during such
time and for such purposes the lease continued in force. ^"^
§189. Lessee cannot recover premises after forfeiture.
If the lessee has been ousted for a failure to keep the cove-
nants of the lease, he cannot recover possession.^*''* A part per-
formance will not enable him to recover possession. ^"^
§190. Reimbursement for expenses.
A lessee who has forfeited his lease has no right to be reim-
bursed for his expenses disbursed in attempting to develop the
land.^^*' And if it is an oil lease, but gas is found, the lessee
has no equity to be reimbursed for the expense of drilling the
well, out of the fund produced by the sale of the gas.^''^
162 Northwestern Natural Gas Co. los Kreutz v. McKnight, 53 Pa.
V. Browning. 15 Ohio Cir. Ct. Rep. St. 319.
84; 8 Ohio C. D. 188. ice Palmer v. Truby, 136 Pa. St.
K13 Blair v. Northwestern, etc., 556 ; 20 Atl. Rep. 516.
Co., 12 Ohio Cir. Ct. Rep. 78; 5 io7 Allen v. Palmer. 136 Pa. St.
Ohio C. D. 620. 5i56; 26 W. N. C. 514; 20 Atl. Rep.
104 Oliver v. Goetz, 125 Mo. 370; 516; Palmer v. Truby, 136 Pa. St.
28 S. W. Rep. 441. 556; 20 Atl. Rep. 516.
FORFEITURE OF LEASE. 221
^191. Removal of fixtures and machinery.
When the lease is declared forfeited by the lessor, the lessee
has a right to remove the fixtures without the right being re-
served in the lease.^*^® And if the right to remove the buildings,
fixtures and machinery be reserved in the lease, the right to do
so cannot be disputed. Thus where the lease expressly provided
that the lessee should have such right of removal " unless all
right thereto " had been " forfeited by a forfeiture " of the
lease, or forfeiture for non-payment of the royalty, it was held
not to deprive the lessees of the right to remove the buildings
and other personal property which he had put on the lease,
within a i-easonable time.^*^" The right of the lessee under an
express reservation of the right to remove buildings and
machineiy, has a right to do so, irrespective of any controversy
as to whether or not there is a legal right to abandon the lease
by reason of an alleged failure on his part to complete the work
of development.^'" If the lessee is refused tlie privilege of re-
moving his buildings and machinery, his remedy as to such
buildings and machinery' is an action for conversion and not an
action of ejectment.^^^ All fixtures, buildings and machinery
must be removed ^^^thin a reasonable time after notice of for-
feiture given him by the lessor,^^^ or. else they will be deemed
abandoned, and the lessor may take possession of them for his
o^vn benefit. The lessee, where he has not drilled a well that
yields oil or gas in paying quantities, and for that reason has
abandoned it, has a right to draw and remove the tubing, casing,
and drive pipe from the well at any time prior to the expiration
of his lease. These instniraents are regarded as trade fixtures,
and are not governed by law pertaining to leases for agricul-
tural pursuits. ^^^
168 Cassell V. Crothers, 193 Pa. St. i7i Cassell v. Crothers, supra.
359; 44 Atl. Eep. 446. See Shellar i72Mickle v. Douglas, supra.
V. Shivers, 171 Pa. St. 569. its Siler v. Globe Window Glass
i69Mickle V. Douglas, 75 la. 78; Co., 21 Ohio Cir. Ct. Rep. 284; 11
39 N. W. Pep. 198. Ohio C. D. 784.
1"*^ Patterson v. Hausbeck, 8 Pa.
Super. Ct. Rep. 36.
222 OIL AND GAS.
§192. Damages instead of declaring a forfeiture.
Instead of declaring a forfeiture^ the lessor may waive it,,
affirm the continuance of the lease, and recover tJie amount
specified in such lease as damages for a failure to comply with
its terms.^^* If the lessees do not covenant to pay rent or de-
velop the mine, but the lease contains a provision that the lease
shall become void and all rights cease unless a well should be
completed within a specified period of time, or unless the lessee
pay rent at a certain rate per month or year in advance, the fail-
ure to explore for oil will merely work a forfeiture of the lease
and not impose any pecuniary liability on the lessee.^^^
174 Springer v. Citizens' Natural itg Glasgow v. Chartiers Oil Co.,
Gas Co., 145 Pa. St. 430; 22 Atl. 152 Pa. St. 48; 25 Atl. Rep. 232;
R«p. 986, following Ray v. Gas Co., affirming Glasgow v. Griffith, 22
138 Pa. St. 576; 20 Atl. Rep. 1065. Pittsb. L. J. (N. S.) 181.
CHAPTER VI.
ASSIGNMENT AND SUBLETTING OF LEASE.
§ 1 93. Lessor — lessee.
§194. Interest assignee secures.
§195. Assignee cannot take advantage of default in lease.
§196. Refusing consent to assignment.
§197. Sublease. — Division.
§198. Assignment carries option.
§199. Transfer of lease by judicial sale.
§200. Equitable assignee in possession.
§201. Lease unassignable.
§202. Assignment of royalties. — Administrators.
§203. Assignee of lessee bound by agreements in lease. — Privity of estate.
§204. Ground of assignee's liability to lessor.
§205. Assignee's liability broadened by terms of assignment or by outside
contract.
§206. Extent of assignee's liability.
§207. Liability of assignee of a part interest in lease.
§208. Liability of occupier under unassigned lease.
§209. Assignee not taking possession liable.
§210. Several successive assignees.
§211. Lease not e.xecuted by lessee, but possession taken under lease, effect.
§212. Lessee released by substitution of assignee.
§213. Trustee of lessee and not his cestuis que trustent liable.
§214. Cestuis que trustent may be liable.
§215. Liability of assignee to his assignor.
§216. Assignor liable on account of lease as a surety.
§217. Sublease. — Liability of sublessee.
§193. Lessor — lessee.
As a general nile a lessor may assign his right to an interest
in a lease he has given on his real estate ; or he may convey the
realty itself which would usually carry his rights in the lease.
And also as a general rule the lessee may assign the lease he has
received; or if he has a freehold interest under it, he may
convey by deed his freehold interest.
224 OIL AND GAS.
§194. Interest assignee secures.
The assignee secures just, such int/^rest as his, assignor had at
the time of tlie assignment — at least that is the general rule,
but, under special circumstances, ho may be entitled to assume
the role of a purchaser for value without notice of the rights
of others.^ If he have notice of tlie rights of a prior lessee, he
takes no greater rights than his assigiKu- had acquired." If tlie
lease provide for a forfeiture under certain conditions, the
assignee must at his peril ascertain whether or not a forfeiture
has been incurred.^ The assignee is liable for the taxes on all
improvements ho places on the leasehold ]>remises.* And th.is
is true where the several o^\mers of a lease have so conducted
themselves as to turn their several interests into a partnership.^
§195. Assignee cannot take advantage of default in lease.
If a default has been made in. carrying out the provisions of
the lease, whether made by the lessee or the assignee, neither
such lessee nor his assignee can urge the default as an excuse
for not carrying out its provisions ; for such a provision "' in-
ures to the benefit of the lessor, and is not effective in behalf of
the lessee, unless the lessor so elects." '^
§196. Refusing consent to assignment.
If the lease of oil or mining land contain a covenant prohibitr
ing an assignment without the consent of the lessor, sucli con-
1 Thompson v. Christie, 139 Pa. 5 Brown v. Beeeher, 120 Pa. St.
St. 230; 20 Atl. Rep. 934; 11 L. R. 590; 15 Atl. Rep. 608.
A., 236. A verbal transfer, followed by a
2 Henderson v. Terrell, 183 Pa. change of possession, is probably a
St. 5f7; 41 W. N. C. 404; 38 Atl. valid transfer of the lessee's inter-
Rep. 1018; Simons v. Van Ingen, 86 est. Lockhart v. Rollins, 2 Idaho
Pa. St. 330; In re Huddell, 16 Fed. 503; 21 Pac. Rep. 413.
Rep. 373 ; Caley v. Portland (Colo.), e Edmonds v. Mounsey, 15 Ind.
71 Pac. Rep. 892; Colorado, etc., App. 399; 44 N. E. Rep. 196; Wills
Co. V. Pryor, 25 Colo. 540, 549; 57 v. Mfg., etc., Co., 130 Pa. St. 220;
Pac. Rep. 51. 18 Atl. Rep. 721; Ray v. Western.
•-! Natural Gas Co. v. Philadelphia etc.. Gas Co., 138 Pa. St. 576; 20
Co., 158 Pa. St. 317; 27 Atl. Rep. Atl. Rep. 1065; Creveling v. West
951; Aderhold v. Oil Well Supply End Iron Co., 51 N. J. L. 34; 16
Co., 158 Pa. St. 401; 28 Atl. Rep. 22. Atl. Rep. 184; Cochran v. Pew,
iln re Huddell, 16 Fed. Rep. 373. 159 Pa. St. 184; 28 Atl. Rep. 219.
ASSIGNMENT OF LEASE. 225
sent not to be unreasonably refused, or refused to a person of
resix)nsibilitY and respectability. The lessor mSj reasonably re-
fuse to give his consent to an assignment to a corjwration which
does not take it with the intention to operate the land, for such
corporation is not a person of responsibility and respectability
within tlie meaning of the covenant in the lease, and tliat, too,
even though tliere be no covenant to operate works already on the
lease.^
§197. Sublease. — Division.
A sale of the gas flowing from a gas well, by the lessees, to
a gas company, which takes charge of the gas and conducts it off
the premises, is not an assignment, but a sublease of the well
itself.^ If a lessee has tlie right, by the terms of his lease, to
sublet and subdivide the premises, he may release a part of
tliem set oif in partition to one of several tenants in common,
and retain tlie lease in operation upon the remainder of such
land.'
§198. Assignment carries option.
The assignment of a lease carries with it an option given in
such lease to the lessee ; and the assignee is entitled to exercise
such option ujx>n exactly the same terms as the lessee would
have been entitled to if he had kept tlie lease. Thus where the
lease of a farm for oil purposes gave an option to a lease on an
adjoining tract on " terms that may be equal to the best terms
offered by any person or jiersons therefor " ; and the lessor
falsely represented to the assignee that he had been offered
twenty thousand dollars for a lease of the tract, when he had been
offered only ten thousand dollars for it; and the assignee paid
the larger sum in ignorance of the falsehood, it was held that he
had a right to exercise the option given by the terms of the lease
tlie same as the lessee had, and could recover back one-half the
sum he had paid (with interest).^*'
T Harrison v. Barrow, 63 L. T. Co., 5 Ohio C. D. 620; 12 Ohio Cir.
Rep. 834. Ct. Rep. 78.
«Akin V. Marshall Oil Co., 188 lo Guffey v. Claver, 146 Pa. St.
Pa. St. 614; 41 Atl. Rep. 748. 548; 23 Atl. Rep. 161.
9 Blair v. Northwestern, etc., Gas
226 OIL AND GAS.
^199. Transfer of lease by judicial sale.
A lease may be traiisfcriYnl bv n jndieial or sheriff's snle of
the lessee's interest in it, and the pnrehaser takes the latt(^r's
place, standing \\\yon no liii!,li(>r ])lane in any respect, and, liki-
the tenant, is liable for all taxes or improvements placed by him-
self n]X)n the leased preraises.^^ The sale of the lease carries
with it all the right of the lessee.^' If the sale is by a receiver
of a court, no title to the lease passes until tJie sale and assign-
ment of the lease has been approved by the court ; and until then
the purchaser is not liable on the covenants and agreements con-
tained in the lease even if he take possession. The lessor, in
such an instance, has the burden t<> show that all ste|)s necessarv'
to vest the title to the lease in the assignee or purchaser were
taken. ^^ The fact that the lessor makes a new agreement with
the assignee will not release the lessee from his liability under
the terms of the lease as they were when the assignment was
made.^* The fact that the lessee may have intended to assign
the lease to a company that was to he formed, will not release
him from liability on the covenants of the lease, even though the
lessor knew of the possibility of the assignment.^^ Where tlie
l6ase provided that the lessee should pay five hundred dollars
for the first well drilled, and five hundred for each well there-
after drilled ; and after the first well was drilled he assigned
the lease, and then the assignee put down a well, it was held tliat
the lessee was liable to pay five hundred dollars for the well the
assignee put do^\^l.^®
*i-In re Huddell, 16 Fed. Rep. i3 Heller v. Dailey, 28 Ind. App.
373; Lykens Valley Co. v. Dock, 555; Q,i N. E. Rep. 490.
62 Pa. St. 232 ; Aderhold v. Oil Well i* Fisher v. Milliken, 8 Pa. St.
Supply Co., 158 Pa. St. 401; 28 111.
Atl. Rep. 22; Jashanosky v. Vol- is Sanders v. Sharp, 153 Pa. St.
rath, 59 Ohio St. 540; 53 N. E. Rep. 555; 31 W. N. C. 374; 25 Atl. Rep.
46; 69 Am. St. Rep. 786; Simons v. 524.
Van Ingen, 86 Pa. St. 330; Acklin ^s Pittsburgh, etc., Co. v. Green-
V. Waltermier. 10 Ohio C. C. Dec. le, 164 Pa. St. 549; 30 Atl. Rep.
t629; 19 Ohio C. C. Rep. 372. 489.
12 Murphy v. Hardee, 12 Ohio Cir.
Ct. Dec. 837.
ASSIGNMENT OF LEASE. 22
§200. Equitable assignee in possession.
An equitable assignee, tlioiigh he takes possession under the
lease, is not a legal assignee, nor is he liable on the covenants of
the lease to tne lessor. Thus where a lease was not assignable
without the consent of the lessor, but the lessee agreed in writ-
ing to assign the lease to certain i>ersons, who took possession
of^'the premises and worked the mines upon them, but no deed
of assignment was ever executed to them ; and these persons
afterward assigned over all their interests to an indigent work-
man, the court declared the assignment to be a good equitable
one under the agreement, but the persons with whom the agree-
ment Avas made were not liable at the suit of the lessor for the
performance of the covenants, for tlie agreements in the lease
were not between the lessor and such persons, and a court of
equity could not treat the agTcement as a tenancy." But where
the lease was to a trustee for five other persons, who entered
and worked the mines ; and the trustee becoming insolvent, tho
lessor sued these five i)ersons for the rent, it was decreed that an
account should be taken of the amount due the lessor, by the
trustee, and if he made default, then an account should be taken
of the moneys of these five persons in his hands, and the amount
due the lessor paid thereout ; and in case such moneys should not
be sufficient to pay the lessor, then such five i^ersons were to
each pay one-fifth part of the deficiency; and they should con-
tinue to pay so long as the rents became due.^®
§201. Lease unassignable.
If a lease be unassignable — as, for instance, if it have nnr
w^ords in it making it run to the assigns of the lessee, or if there
is an express statement in it that it is not or can not be assigned
that Avill not permit one who takes possession under it by
virtue of an attempted assignment to escape liability to the
lessor. In such an instance the occupant of the gi'ound is
17 Cox V Bishop, 8 De G. M. and i«Lee v. Roundwood Colliery Co,
G 815- 26 L J. Ch. 389; 3.Ji.r. [1897], 1 Ch. 373; 66 L. J. Ch. 186;
(N. S.) 499; 29 L. T. 44; 5 W. R. 75 L. T. 641; 45 W. R. 324.
4.57.
228 OIL AXD GAS.
liable to the owner upon an implied assumpsit to pay a reasona-
ble compensa.tion for his occupation, or for trespass for the
wrongful occupation/" And the lessor may obtain a right
against the assignee where he and the latter have entered into
an agi*eemeut with res}3ect to the occupancy of the premises by
reason, of such assignee having taken possession under tlie at-
tempted assigiiment. Such was the case where an agreement
was entered into between the lessor and assignee for an exten-
sion of the time of performance of the covenants of the lease,
for the payment of increased royalties, and also into a provision
that the lease " shall remain in full force in all particulars in
which the same is not hereby modified." This gave the assignee
all the rights of the original lessee, even to a renewal of the
lease."**
§202. Assignment of royalties. — Administrator.
A lessor may assign a lease he has given, eitlier by proper
Avords of assig-nment on the lease, if he can obtain possession of
it, or by a separate instrument ; and his assignment will carry
the rent or royalties thereafter falling due, but not those that
have fallen due before the date of the assignment, unless tlie
19 Walters v. Northern Coal Min- on the tract, to have and to holfi
ing Co., 25 L. J. Ch. (N. S.) 633; the land as long as they should
5 De G. M. and G. 629; 26 L. T. deem it worthy of searching for
167; 4 W. R. 140; 2 Jur. (N. S.) minerals, in which they agree to not
1. But see Oil Creek, etc., v. Stan- use the land for any other pur-
ton Oil Co., 23 Pa. Co. Ct. Rep. poses, is an unassignable lease; be-
153; 30 Pittsb. L. J. (N. S.) 286. cause the personal skill of the
' 20 Guffey V. Clever, 146 Pa. St. miners has been contracted for.
548^.23 Atl. Rep. 161. Hodgson v. Perkins, 84 Va. 706; 5
A lease contained a clause that it S. h. Rep. 710.
shoula terminate on " a sale or An oil well on a lease to continue
transfer " of the property during as long as oil could be procured
the term, it was held that the word from the premises in paying quan-
" transfer " related to a transfer of tities, was abandoned by the les-
tlie title, and not a mere transfer sees, because of the failure of the
of the right of possession. Ober v. output. It was held that the as-
Schenck, 23 Utah 614; 65 Pac. Rep. signment of the lease thei'eaftcr
1073. gave no title to the assignee, even
A deed conferring upon skilled though the lessees had first attempt-
miners the privilege to raise ore, ed to renew it. Cole v. Taylor, 8
with the use of timbers and water Super. Ct. (Pa.) 19.
ASSIGXMEXT OF LEASE. 229
right to them is also assigTied. In order to assign the lease it
is not necessary to make a sale or transfer of his reversionary in-
terest in the land. A lease was assigned afjter it had expired,
by the use of the following language endorsed upon it : " For
value received we hereby sell, transfer and assign all our in-
terests, right and title in and to the original contract to," a
person being named as assignee. It was claimed that this did
not pass the right to collect damages then due by the terms of
the lease, but the court held otherwise. " They had a right of
action under the contract," said the court, " and when they as-
signed all their rights and interest therein, they assigned this
right of action. The time for which the land was leased having
expired, there remained nothing but this right of action to be
transferred. To hold that the assignment transferred only the
original instrument would be too narrow a construction." ^^
So where the owner of land executes a gas or oil lease upon it,
and afterward conveys the land by an ordinary quit claim or
warranty deed the grantee is entitled to the rents maturing after
the conveyance."" But where a lease for years reserves a cer-
tain royalty for all oil or gas produced, the royalty reserved
goes to the personal representatives of the deceased lessor, and
not to his heirs. "^ So where the royalty reserved was a certain
fraction of the oil produced ; and afterward the lessor gave the
land to his children, reserving to himself a life estate in it, it
21 Indianapolis, etc.. Gas Co. v. Woodburn's Estate, 138 Pa. St. 606;
Pierce, 25 Ind. App. 116; 56 N. E. 21 Atl. Rep. 16; 21 Am. St. Rep.
Rep. 137. See Morgan v. Yard, 13 932 (oil and gas) ; Manderbach v.
Pittsb. L. J. (X. S.) 178; 12 W. N. Bethany, etc.. Home, 109 Pa. St.
C. 449; Chandler V. Pittsburgh, etc., 231; 2 Atl. Rep. 422 (rent for
Co., 20 Ind. App. 165; 50 X. E. Rep. water from a spring). See Butt v.
400. . Ellett, 19 Wall. 544; Van Rensse-
22 Chandler v. Pittsburgh, etc., laer v. Hays, 19 X. Y. 68; 75 Am.
Co., 20 Ind. App. 165; 50 X. E. Rep. Dec. 278; Peerrin v. Lepper, 34
400. In Svvint v. McCalmont Oil Mien. 292; McGuffie v. Carter. 42
Co.. 184 Pa. St. 202, 38 Atl. Rep. Mich. 497; 4 X. W. Rep. 211; Page
1021, it was assumed that the rents v. Culver, 55 Mo. App. 606; West
passed to the grantee. Undue rents Shore Mills Co. v. Edwards, 24 Ore.
for coal pass. Hendrix v. ]\IcBeth, 475; 33 Pac. Rep. 987; Morrow v.
61 Ind. 473; 28 Amer. Rep. 680; Sawyer, 82 Ga. 226 ; 8 S. E. Rep. 51.
Hendrix v. Hendrix, 65 Tnd. 329; 23 Brunot's Estate, 29 Pittsb. L.
McDowell V. Hendrix, 67 Ind. 513; J. (X. S.) 105.
230
OIL AND GAS.
was held tliat he was entitled to the royalty, i,mder tlie rule
that tlie life-tenant is entitled to work all wells open at tlie time
the tenancy is created.^* Where a testator owned six hundred
acres of land, divided into three adjoining fanns, ujx^n all of
which was an oil lease, in which a certain royalty was reserved
and which had twelve years to run at his death ; and wells,
Avhen he died, were in operation on one farm only, which was
given by his will to one of his three children, and the other two
farms to his other two children severally, the court decided
that the royalties should also be divided, and one-tliird given to
each devisee ; for the reason that the working of the oil wells on
the one farm had the effect to drain the oil from the other two
farms, and thus the devisee of those two farms would receive
no benefit from the lease which covered their farms. "^ If the
owner of the reversion has sold the premises, he cannot maintain
an action in his own name for the use of his vendee, for a breach
of a covenant that has occurred after ho has made the sale.'"'
24Koen V. Bartlett, 41 W. Va.
559; 23 S. E. Rep. 6G4; 31 L. R.
A. 128.
Where the owner of land con-
veyed it, reserving for life one-eighth
of the oil produced, and the gi'antee
leased the land, reserving to him-
self one-eighth, it was held that the
last reservation was one-eighth of
seven-eighths, for it could not be
contended that when he made his
reservation he intended to reserve
any part of the oil reserved by the
original grantor, but he reserved a
share only of that which he was en-
titled to under his grant. Harris v.
Cobb, 49 W. Va. 350; 38 S. E. Rep.
559.
25 Wettengel v. Gormley, 160 Pa.
St. 550; 28 Atl. Rep. 934; 40 Am.
St. Rep. 733; Wettengel v. Gorm-
ley, 184 Pa. St. 3G4; 39 Atl. Rep.
1118. But spp where the Ohio Su-
preme Court refused to follow these
cases. Northwestern Ohio Nat. Gas
Co. v. Ullery, 67 N. E. Rep. 494.
2C Stoddard v. Emery, 128 Pa. St.
436; 18 Atl. Rep. 339.
Tlie owner of oil land conveyed
an undivided interest in it, and
gave to the gi-antees the right to
drill for oil on the portion uncon-
veyed, reserving a royalty to him-
self. Afterward he sold tlie remain-
ing undivided interest, subject to
the oil lease, of which he finally be-
came the assignee. By will he left
all his property to his devisees, and
they conveyed to third parties, re-
citing in the deed that it was their
intention to convey all lands and
premises owned^ by them, and in
which they had an interest. It was
held that the conveyance passed no
rights under the oil lease, for it
was a mere incorporeal right, which
the conveyance did not embrace.
Wagner v. IMallory. 41 N. Y. App.
DiA^ 126; 58 N. Y. Supp. 526;
affirmed 169 N. Y. 501; 62 N. E.
Rep. 584. But did not tlie holders
of the lease have an interest in the
ASSIGNMENT OF LEASE. 231
If there has been a joint reservation of royalties, an assignment
of his interest in the lease by one of those jointly interested does
not amount to a severance of the royalties nor apportion-
ment of them among the co-lessors, but the assignee becomes a
tenant in common of the royalties with the co-lessors, and any
one of them can' receipt for the same.'^
§203. Assignee of lessee bound by agreements in lease. — Privity
of estate.
The assignee of a lessee of a lease takes the position of his
assignor and becomes bound by all the terms, agreements and
covenants of the lease to the lessor, to be performed while he
holds the lease, the same as if he had been the original lessee.
" The original lessee is bound by the contract," to quote from
an opinion of tlie Court of Indiana, " to make the payments.
The assignees are bound by tlieir acceptance of the lease, to
make good the covenants to pay rent, therein contained. Their
liability is upon the covenants, and arises, not from any express
assumption or agreement to pay it, which might be contained in
the written assignment, but from the privity of estate by reason
of their ownership and right to enjoy the benefit of the lease.
Covenants to pay rent and royalties run with tlie land." "*
" The assignee is answerable for the rent," said the Supreme
Court of California, " during his ownership of the terms under
the assignment, and his liability therefor arises out of the privity
of estate, and this, without reference to any obligation assumed
by liiin in the contract of assignment." "^ The Supreme Court
laiKlV See Heller v. Dailey, 28 Ind. Garrett. L. R. 5 Exch. 132; 39 L.
App. r,.-).-); 63 N. E. Rep. 490. J. Exch. 69; 22 L. T. 343; 18 W.
2T Swint V. MeCalmont Oil Co., R. 697.
184 Pa. St. 202; 41 W. N. C. 491; 29 Bonetti v. Treat, 91 Cal. 223;
38 Atl. Rep. 1021. 27 Pac. Rep. 612; Breckenridge v.
28 Eilmonds v. Mounsey, 15 Ind. Parrott, 15 Ind. App. 411; 44 N.
App. 399; 44 N. E. Rep. 196. citinfj E. Rep. 66; Goddard's Appeal.
Watson Coal. etc.. Co. v. Casteel. 1 Walker (Pa.) 97 Bradford
73 Ind. 296; McDowell v. Hendrix. Oil Co. v. Blair, 113 Pa. St.
67 Ind. 513; Gordon v. Georfre. 12 83: 4 .\tl. Rep. 218; Washington,
Ind. 408: Stewart v. Lon? Island etc.. Ga.s Co. v. Johnson, 123 Pa.
Ry. Co.. 102 N. Y. 601; Moule v. St. 576; 16 Atl. Rep. 799; 11 Morr.
232 OIL AND GAS.
of Pennsylvania Ims stated the rule in a sinc^le sontcnce, thus:
" It is settled law that covenants to pay rent or royalty rnn with
the land, and that the assignee of the lease is liable for the pay-
ment of all rents or royalties wliich accrue while he held the
assignment of the lease." ^^ Of course, when the lessor seeks
to hold the assignee liable on the covenants and agreements in
the lease, he has the burden to show that an actual assignment
was made.^^
§204. Ground of assignee's liability to lessor.
By the assignment of the lease a privity of estate is not
created between the assignee and the lessor for that period prior
to the assignment, nor for the part of the lease remaining after
he has ceased to enjoy it, " The assignee, having entered under
an assignment and thus come into privity, that privity con-
tinues as long as his beneficial cnjoynicnt of the demised
property or right to it remains." "'" The liability of the assignee
to the lessor is, tKerefore, based upon their ]U'ivity of estate,
and not necessarily upon an agreement to keep tlie covenants of
the lease. " A lessee," said Judge Simonton, " remains liable
on his express obligation, notwithstanding he may have as-
signed his lease. And the lessor may sue at his election either
the lessee or the assignee, or may pursue tliis remedy against
both at the same time, tliough, of course, with but oae satisfac-
tion. In such oaseS', the liability of the original lessee depends
upon privity of contract and continues during the whole term,
while the liability of the assignee depends upon privity of estate,
created by the assignment and continues only during tlie time
Min. Rep. 165 ; Goss v. Fire Brick Walters v. Northern, etc., Co.. 25 L.
Co., 4 Super. Ct. (Pa.) 167; Fen- J. Ch. (N. S.) 633; 5 De G. M. and
nell V. Guffey, 139 Pa. St. 341; 20 G. 629; 26 L. T. 167; 4 W. R. 140;
Atl. Rep. 1048; Williams v. Short, 2 Jur. (N. S.) 1.
155 Pa. St. 480; 26 Atl. Rep. 662; 3o Fennell v. Guffey. 139 Pa. St.
Comegys V. Russell. 175 Pa. St. 166; 341; 20 Atl. Rep. 1048; Heller v.
34 Atl. Rep. 657; Fennell v. Guffey, Dailey. 28 Ind. App. 555; 63 N. E.
155 Pa. St. 38; 25 Atl. Rep. 785; Rep. 490.
Springer v. Citizens', etc., Gas Co., 3i Heller v. Dailey. 28 Ind. App.
145 Pa. St. 430; 22 Atl. Rep. 986; 555; 63 N. E. Rep. 490.
Aderhold v. Oil Well Supply Co., 32 Negley v. Morgan, 46 Pa. St.
158 Pa. St. 401; 28 Atl. Rep. 22; 281.
ASSIGNMENT OF LEASE. 233
he holds legal title to the leasehold estate during the assign-
ment." ^^ " For, although there was no privity of eontract be-
tween the lessor and the assignee of the lessees, yet there was
a privity of estate between them, as long as the assignee re-
mained in possession of the demised premises, which created
the debt for the rent or royalty reserved in the lease, in favor
of the lessor and against the assignee." ^'^ " Turning then to
the question raised by the points," said the Supreme Court of
Pennsylvania, '' we find the facts to be assumed therein, and the
liability of the gas company to depend upon the extent to
which the covenants of Guffey run with the land. That they
continued liable, notwithstanding their assignment to Kobbins,
is very clear. The covenant was their own, and their privity
of contract with their lessors continued notwithstanding their
assignment of the lease. Their assignee, Robbins, who was
in possession when the time for performance arrived, was also
liable, because of the privity of estate which arose upon his ac-
ceptance of the assignment. Acquiring the leasehold estate by
the assignment of the lease, he is fixed with notice of its
covenants, and he takes the estate of his assignor cum onere.
But as his liability grows out of privity of estate, it ceases when
the privity ceases. If he had assigiied before the time for per-
formance, his liability would have ceased with his title, and
liability would have attached to bis assignee by reason of priv-
ity ; but he would not be liable for those previously broken, or
subsequently maturing, because of the absence of any contract
relation with the lessor. While he holds the estate and enjoys
its benefits, he bears its burdens by assignment, even though, as
is said is done in the case, his assignment be to a beggar." ^^
And the court referred to the claim that a certain case ^^ held
33 McBee v. Sampson, 66 1 ed. Rep. Ind. 408 ; Carley v. Lewis, 24 Ind.
416; Childs v. Clark, 3 Barb. Ch. 23; McDowell v. Hendrix, 67 Ind.
52; 49 Am. Dec. 164; Johnson v. 513.
Sherman. 15 Cal. 287 ; 76 Am. Dec. 35 Washington, etc., Gas Co. v.
481; Wall v. Hinds, 4 Gray 256; Johnson. 123 Pa. St. 576; 16 Atl.
Smith V. Harrison, 42 Ohio St. 180. Rep. 799.
3* Watson, etc.. Co. v. Casteel. 73 so Bradford Oil Co. v. Blair, 113
Ind. 296, citing Rowland v. Coffin, Pa. St. 83; 4 Atl. Rep. 218.
9 Pick. 52; Gordon v. George, 12
234 OIL AND GAS.
a different rule, and declared it was clearly distinguishable from
the case then in hand. " The covenant which it was sought to
enforce in that case was not for the completion of successive
•wells at successive dates, but it was for the commencement of
the work of developing Blair's farm at a time certain, and to
^ continue with due diligence and without delay to prosecute
the business to success or abandonment, and, if successful, to
prosecute the same without intcnniption.' Two wells were com-
pleted, and were successful oil wells. The assignee of the lease
owned adjoining lands upon which it was operating, and it
stoj^jped work on the Blair farm. The action rested on the
breach of the covenant to pTosecute the business of producing
oil from the land of the lessor with due diligence and ' without
interruption.' The obligation of a covenant to prosecute the
business developing the land of the lessor w^ithout delay and
without interruption, is a continuing one. The breach for
which the Bradford Oil Co. was held liable was not that of
some previous holder of the title, but its owner.'
>5 37
§205. Assignee's liability broadened by terms of assignment or
by outside contract.
■ The liability of an assigiiee may be broadened by the terms of
the assignment, or by a contract outside of it. If there be
express covenants in the assignment, they are so many additions
to the covenants of the lease, and the lessor may take advantage
of them if they run in his favor.^* Thus if the assignment
provides that the assignee shall hold the lease under the terms
of the lease and subject to the rents and covenants therein on
the part of the lessee, and he accepts it, he will be liable for
rentals which had matured and remained unpaid at the time
37 Akin V. Marsliall Oil Co., 188 . See the excellent statement of the
Pa. St. 614; 41 Atl. Rep. 748; Ader- liability in Heller v. Dailey, 2S In 1.
hold V. Oil Well Supply Co.. 1.58 Pa. App. 555; 6.3 N. E. Rep. 490.
St. 401: 28 Atl. Rep. 22; Drake v. 38 Consolidated Coal Co. v. Peers.
Lacoe, 157 Pa. St. 17; 27 Atl. Rep. .39 111. App. 453; same case. 150 111.
538; Borland's Appeal. 66 Pa. St. 344; 37 N. E. Rep. 937; Goddard's
470; Goss v. Brick Co., 4 Super. Ct. Appeal, 1 Walk. (Pa.) 97.
(Pa.) 167.
ASSIGNMENT OF LEASE. 235
it was executed.^" An agreement to perform the covenants
of the lease renders the assignee liable for the unperformed
covenants; and also renders him liable for the rent or royal-
ties accruing after he may have also assigned the lease to an-
other.*"^
§206. Extent of assignee's liability.
While the assignee is liable for the carrying out of tbe terms
of the. lease, yet he is liable only for those obligations that ac-
crue while he enjoys its privileges, or, as it has been said, dur-
ing the continuance of his own estate. His agreement is that
during his estate he will pay tlie rents or royalties due under
and perform the covenants of the lease.*^ He is not liable,
\vithout an. express agreement in the assignment, to pay for
rents or royalties that had accrued, or for the performance of
covenants that were to performed in point of time before the
assignment. Thus where the assigiied lease provided tliat a
well should be completed within a certain time, and if not a
specified sum of money per year should be paid for each year
during which the completion of a well was delayed, it was held
that the assignee was not liable for the payment of such sum,
where he assigned the lease before the lapse of the year ; for
the amount due did not and could not accrue before he assigned
the lease, and consequently he was not liable.*" Xor is the as-
signee liable for damages for failure to dig a well upon the
demised premises when the time for the completion of the well
expired before the lease was assigned.*^ If the time for the
39 Woodland Oil Co. v. Crawford, 11 Morr. Min. Rep. 165; Walters
55 Ohio St. 161; 36 Ohio L. Bull. v. Northern Coal Mining Co.. 25 L.
231; 44 X. E. Rep. 1093; 34 L. R. J. (N. S.) Ch. 633; 5 De G. M.
A. 62. and G. 629; 26 L. T. 167; 4 W. R.
40 Port V. Jackson, 17 Johns. 239; 140; 2 Jur. (N. S.) 1; Heller v.
Martineau v. Steele, 14 Wis. 272. Dailey, 28 Ind. App. 555; 63 N. E.
41 Wolveridge v. Steward, 1 C. Rep. 490.
and M. 644; 2 L. J. Exch. 303; 3 42 Watt v. Equitable Gas Co., 8
Tyr. 637; Moule v. Garrett, L. R. Super. Ct. (Pa.) 618; 29 Pittsb. L.
5 Exch. 132; 39 L. J. Exch. 69; J. (N. S.) 221 ; 43 W. N. C. 215.
22 L. T. 343; 18 W. R. 697; Wash- 43 W'ashington, etc.. Gas Co. v.
ington, etc.. Gas Co. v. .Johnson, Johnson, supra.
123 Pa. St. 576; 16 Atl. Rep. 709;
23G on. AND GAS.
completion of tlio well had expired after the assignment, the
assignee wonld have been liable.** In a coal lease it was pro-
vided that royalties slionld be paid senii-annnallv, and if the
amount dne at the end of any half year remained due at the
end of a year thereafter, the lease by reason of such delinquency
was forfeited, and the lessor was authorized " to enter and take
possession without recourse to law^" Four years after its ex-
ecution the lessee gave E and others an option to purchase the
lease, one of the conditions being that they should test the
character of the oil veins on the land by boring down through
them. After the boring was done, and nearly a year after the
option was given, E notified the lessee that they accepted his
option. More than a year after this notice was given, E and
his associates called upon the lessor to pay any royalties then
due, and were told by him that none were due, but if there
were, he would not take them from them — from E and his
associates. Two months aftenvards the lessor re-entered for
the non-payment of tlie royalties within a year after they had
accrued. It was shown that the lessor knew that E and his
associates had been boring upon the land, and that he had
pointed out to them the boundary lines of the tract. It was
held that E and his associates were bound to take notice of the
covenants of the lease ; that the fact the lessor knew of the
negotiations for the assignment of the lease gave E and his as-
sociates no rights as against the lessor, except such as the lessee
had, and imposed no duties on the lessor toward them, except
such as he was bound to the lessee under the terms of the lease ;
that E and those with him were bound to take notice^ whether
th(i. royalties had been and were being paid, what was the state
of the accounts, the responsibility for which they were about to
assume; that as they had neither paid nor offered to pay the
royalties they had no higher standing than the lessee so far as
their contract rights were concerned ; and that the les-
sor was not estopped as against them by the fact that he knew
the boring was going on, or by what he had said to them.*^ A
44Aderhold v. Oil Well Supply 45 Comegys v. Russell. 175 Pa.
Co., 158 Pa. St. 401; 28 Atl. St. 166; 34 Atl. Rep. 657.
Rep. 22.
ASSIG^rMENT OF LEASE. '3o7
lessee assigned an oil lease, in consideration of which it was
agreed that if the assignee or his assignees should " operate
under the said leaseholds, that on each of the leases he so
operates, and if the oil is found in paying quantities, the said
assignee or his assignees agree to pay the lessee " one hundred
dollars for the leasehold upon which a paying well was found.
The assignee surrendered the leases to the lessors and took new
ones containing the same provisions, which he assigned to in-
nocent parties. It was held that the lessee's claim for payment
could be enforced only when oil had been found on the land in
paying quantities; and in that case, by whomsoever found, a
recovery could be had against the assignee ; but the fact of the
surrender gave no cause of action.*** When the lessor sues the
assignee on the covenants of the lease', he has the burden to
show an actual assignment. And where tlie receiver of a lessee
assigned the lease, but the assignment or transfer was never ap^
proved by the court, it was held that the assignee was not liable
on the covenants contained in the lease. *^
§207. Liability of assignee of a part interest in lease.
Where the lessee assigns only a part of the lease, as an un-
divided fourth part, and he and the assignee operate the lease
together as partners, the liability of the assignee may be broader
than it otliei-wise would have been.** Thus a "\\Titten assign-
ment of an undi\aded one-half of a lessee's interest in an oil
and gas' lease, together with his entire gas right therein, was
held to make the assig-nee a joint owner of the lease, and jointly
liable thereunder with the original lessee.*** The court was also
of the opinion that the assignee of a. one-half or other distinct
interest in the lease was jointly liable for the performance of a
covenant therein to sink an oil well or pay a monthly rental.
46 Smith V. Munliall, 139 Pa. St. 4s Boydston, v. Meacham, 28 Mo.
253; 21 Atl. Rep. 735. See Breck- App. 494.
enridge v. Parrott, 15 Ind. App. ^^ Jackson v. O'Hara, 183 Pa. St.
411; 44 X. E. Pep. 66. 233; 38 Atl. Rep. 624.
*~ Heller v. Dailey, 28 Ind. App.
555; 63 X. E. Rep. 490.
238 OIL AND GAS.
The assignee of an undivided interest of a partner in the usual
oil or gas lease takes it subject to the partnership debts.'^*'
§208. Liability of occupier under unassi^ed lease.
If the lessee merely permit one to occupy the leased premises,
such occupier is not liable to the lessor for the rent, nor for
use and occupation of the premises ; but if the occupier has an
agreement for an assignment of the lease, and he call upon the
lessee to make his agreement good, then the lessor may look to
the occupier for the rents and performance of the covenants
falling due during the time he is in possession of the prem-
ises.^^
§209. Assignee not taking possession liable.
The assignee of an oil lease cannot escape liability on the
ground that he never took actual possession, nor commenced
loperations on the leased premises without fault of the lessor.
This is true according to the greater number of authorities.^"
This is 2>articularly true of the ordinary oil or gas lease. In
speaking of an instance where possession had not been taken
under an oil lease assigned, the court used the following lan-
guage : " Whatever may be the rule as to an ordinary lease,
where the subject matter is susceptible of actual possession and
physical enjoyment, as to rights created by leases, such as this,
where, until the well is completed, there can be no further en-
joyment than the possession of the right, which may be exer-
tjo Chamberlain v. Dow, 16 W. N. Kaym. 367; Babcock v. Scoville, .56
C. 532. 111. 461; Board v. Boatman's Ins.
51 Walters v. Northern Coal Min- Co., 5 Mo. App. 91; Smith v. Brin-
ing Co., 25 L. J. Ch. (N. S.) 633; ker, 17 Mo. 148; Willi v. Dryden,
6 De G. M, and G. 629; 26 L. T. 52 Mo. 319; University of Vermont
167; 4 W. R. 140; 2 Jur. (N. S.) 1. v.' Joslyn, 21 Vt. 52; Damainville
52 Edmonds v. Mounsey, lo Ind. v. Mann, 32 N. Y. 197; Carter v.
App. 399; 44 N. E. Rep. 196; Wal- Hammett, 18 Barb. 608; Fennell v.
ton V. Cronly. 14 Wend. 63; Wil- Guffey. 155 Pa. St. 38; 26 Atl. Rep.
iiams V. Bosanquet, 1 Brod. and 785; Heller v. Dailey, 28 Ind. App.
Birg. 238; Burton v. Barclay, 7 555; 63 N. E. Rep. 490.
Bing. 745; Cook v. Harris, 1 Ld.
ASSIGN MEXT OF LEASE.
2S9
cised at will, the author ities bearing directly upon the propusi-
tion involved, authorizes us to declare that the obligations of
the assignees are not postponed until the actual entry upon the
land." ''
§210. Several successive assignees.
If there be several successive assignees, each will be liabTe
for the perfonnance of the covenants or agi'eements contained
in the lease which matured or required ]TerforTnancc while he
was in possession or enjoying the estate, or, in other words, so
long as he held the lease.^*
§211. Lease not executed by lessee, but possession taken under
the lease, effect.
" It can make no difference in principle that the lease is not
executed by the person to whom the demise is made — excejit
that (in such a case) the landlord may not be able to maintain
an action of covenant ; but if the person to whom the demise
is made accepts the lease, either by occupying the demised
pToperty himself or by |>ermitting others (as his nominees or
as his cestuis que trustent) to do so, tlie non-execution of the^
instrument of demise will not prevent the lessor from recovering"
the rent l)y distress or by action of debt against the lessee. Of
course, where the demise is made to a ]5erson who neither ex-
ecutes the lease nor adopts it by entry or otherwise, he (the'
lessee) is a mere stranger against whom the landlord can have
no rights ; and if (in such last-mentioned case) other persons'-
enter claiming to be the nominees or the cestuis que trustent of
such non-executing and non-adopting lessee, the landlord's rem-
edy must be by distress or {semhle, by action of trespass), and
is not either in debt or on covenant." ^^
53 Edmonds v. Mounsey, supra. Morr. Min. Rep. 152 ; Heller v. Dai-
54 Bradford Oil Co. v. Blair, 113 ley, 28 Ind. App. 555; 63 N. E-
Pa. St. 83; 4 Atl. Rep. 218; Wash- Rep. 490.
in^on, etc.. Gas Co. v. Johnson, 123 ss Bainbridge on Mines (5th ed.)^
Pa. St. 576: 16 Atl. Rep. 799; 11 p. 294.
240 OIL AND GAS.
^212. Lessee released by substitution of assignee.
But a lessee may be released bv tlie art of the lessor in ac-
cepting and substituting' the assignee in place of the lessee.
Thus in an Indiana case it was said by the court: "' There has
been a diversity of decision both as to the facts which may
cojistitute a surrender by operation of law and as to the legal
principles applicable thereto. We will not undertake to dis-
cuss the general subject, but will confine our observations to the
instance of a substitution of tenants and to the case where there
has been an assigiiment by the lessee to a third pers^)n. If the
law will imply a surrender in a given case, it would seem to
be reasonably clear that the implication will arise from the
acts of the parties, and will not be based upon proof of an oral
agreement between lessor and lessee. The one, whether lessor
or lessee, against whom such a surrender is asserted by the
other, must have been a party to some action from which a
surrender may pro])erly be presumed by the court. The sur-
render should be indicated by acts. We Avill not pause to seek
to reconcile the various opinions as to the principle of law on
which this conclusion of the court should proceed. If the les-
see assign to a third person, and the lessor accept rents from
the assignee in peaceable possession, it may l>e presumed, from
this act of the lessor in accepting the rent due from the lessee
through hands of another in jx)ssession, that tlie lessor acquiesces
in the assignment; but such conduct does not necessarily indi-
cate that the lessor has been a party to the creation of a new
tenancy. Such facts may constitute evidence of an assigniment,
but not of a surrender, and if a surrender may be established by
the further proof of a parol agreement between the lessor and
the lessee, to which the assigiiee was not a party, this would be
basing the essential fact constituting the surrender upon parol
evidence of an express contract, and not deriving it by act and
o|>eration of law. In Frank v. Maquire,*^^ it is said: 'it
surely is not necessary to cite cases to prove that a tenant is
bound by his express contract to pay rent, even after he has
*55 42 Pa. St. 82.
ASSIGNMENT OF LEASE. 241
assigned the term with his huullord's assent, and thongli tlie
landlord has accepted the assignee as his tenant and received
rent from him.' In Creveling v. De Hart, ^" an action by a
lessor to recover from the lessee for non-payment of rent, a
plea was held insufficient which stated that the lessee entered
into negotiations with a third party named, and notified the
lessor, who encouraged the lessee to sell and assign the lease to
a third party, and therefore the lessee dnly assigned and con-
veyed tlie same to sncli third party, who entered upon the de-
raised premises and was dnly accepted by the lessor as his
tenant, and that lessor collected rent from the assignee, and
recovered a judgment for rent which afterwards fell due. It
was held that to make the plea show snrrencler in law it needed
an averment that the assiivnee was substituted in place of the
original lessee with the intent on the uart. of the parties to the
demise to annul its obligations. In Grommes v. Trust Co.,*^"
is the following language: ' ISTor did the sale of the saloon
by the tenant to Ruse, nor the taking of possession by Ruse,
nor the acceptance of rent from the latter by tlie landlord,
operate as a discharge of the grantors. The assignee of a lease-
hold estate is liable for rent according to the terms of tlie lease,
and the fact of his liability after the assignment does not dis-
charge the lessee from his covenant to pay rent. In case the
rent is not paid by the assignee as it becomes due, an action
may be sustained against the lessee therefor; and it makes no
difference in tliis respect that the lessor may have received
rent from the assignee, and accepted him as tenant of the prem-
ises. Where there is an express covenant to pay rent for a
term of years, the mere acceptance of rent by the lessor from
the assignee of the lessee does not discharge the lessee. The
contract of the latter continues in force, notwitlistanding he
may have parted with his interest in tlie estate, unless tlie lessor
enters into such stipulations with the assignee as to accept him
as sole tenant and absolve the original lessee. If there be not
a substitution of the assignee in place of the original lessee, and
56 54 N. J. Law 338; 23 Atl. Rep. *56 147 111. C34-648; 35 N. E.
611. Rep. 823; 37 Am. St. Rep. 248.
242 OIL AND GAS.
a clear intent to make a new contract with the former and dis-
charge the latter from furtJier liability nnder the lease, both
will be held liable to the lessor. We do not hold it necessary to
show an express contract between tlie lessor and the assignee,
but it seems to be reqnisite to show that the landlord, by his
conduct, as between himself and the assignee, does not hold the
latter merely to the obligation of an assignee of the term in
possession, but has assumed an attitude inconsistent with the
continuance of the contract relation between him and the orig-
inal lessee, and has treated the assignee as his own tenant by
sul)'Stitution." ''' There must be a surrender, either in fact or
by operation of law, of the premises by tlie lessee and a substi-
tution of his assig-nee, to release the former from his liability
on the covenants of the lease. That result must be attained
before the lessee is free from liability.*^^
§213. Trustee of lessee and not his cestuis que trustent liable.
" In Walter v. Xorthem Coal Mining Co.,^^ where certain
(coal) mines had been leased to a trustee for tlie defendant
company at a fixed or certain rent, and at a tonnage (or ten
tale) rent beyond ; and the term was for forty years, determin-
able by the lessee at the end of every third year by giving one
year's previous notice ; and the defendant company entered into
possession and worked the mines under the lease for a little
over a year, and then abandoned the mines as unprofitable —
never having paid any rent, or given any notice to determine
the term ; and about nine years afterwards the company went
into liquidation, and the liquidator gave the notice to determine
the term, protesting also that the lease was not a good lease ;
^•T Heller v. Dailcy, 28 1ml. App. W. 85; Lynch v. I ynrOi. (> Irish L.
5.-).-,: 63 N. K. Rep. 400. Rop. 131; Lewis v. Brooks, 8 Up.
On the question of suhstitution. Can. Q. B. 576.
see Way v. Reed, (i Allen 364; *5T Donahoe v. Rich, 2 Ind. App.
Hoerdt v. Ilalme. 01 111. App. 514; 540; 28 N. E. Rep. 1001.
Detroit Pharmaeal Co. v. P.nrt. 124 r.s 25 L. J. Ch. 633; 5 De G. M.
IMich. 220; 82 N. W. Rep. 893; and G. 629; 26 L. T. 167; 4 W. R.
I>evering v. Langley, 8 INIinn. 107 140; 2 Jur. (N. S.) 1.
(Gil. 82); Lyon v. Reed, 13 :\I. &
ASSIGNMENT OF LEASE. 243
:and tlie plaintiff (tlie lessor) thereupon commenced this action
to recover from the company the alleged arrears of rent, alleg-
ing that it was a debt in equity of tlie company — the court
said, tliat the lessor should have sued the trustee-lessee, and not
-the company (the cestui que trust), the relation being a purely
legal relation." *"^
§214. Cestuis que tmstent may be liable.
" If there should be an express contract between the cestuis
que trustent and the landlord, that he (the landlord) should
grant, and that they (the cestuis que trustent) or their trustees
should accept, the lease, tlie landlord would in that case be en-
titled to a specific performance of the contract., and the cestuis
quyc trustent would be compelled to fulfil their contract, and
(either by themselves or by their trustees) to execute a counter-
part of the lease, the landlord having first executed the lease —
and after such lease and counterpart had been executed, the
legal relations above enumerated would apply as between the
landlord and his lessee (and the assignee of the lessee) — but
otherwise tlie cestuis c^ue trustent would remain exempt as be-
fore, the lessee only (or his assignee) being and remaining
liable to the landlord." '''
§215. Liability of assignee to his assignor.
Between tlie assignee and his assignor tliere is such a privity
of contract as renders the latter liable to the former, without
an express contract to that effect, for a failure to cany out the
covenants or agreements of the lease. If the lessee (the as-
:sigTior) has to pay the rent falling due after the assigTiment, he
Tnay recover from the assignee the amoimt paid ; and so if the
lessee has to eavry out any of the covenants, performance of
which was to be made, by the terms of the lease, after the time
of the assignment, the assigTiee will be liable to him for his
*58 Bainbridge on Mines {5th so p.ainbridge on Mines (5th ed.),
■ed.), p. 294. p. 204.
244 OIL AND GAS.
failure to perform such covenants."*' So the first assignee is
liable for tlie rents accruing, or the covenants to be carried out,
after he has assigned the lease ; and if he has been compelled
to paj or carry out he may recover the amount paid from his
assignee; so the assignor (tlie lessee) may sue such remote as-
signee for default made during the time he holds the lease.*^^
There is an implied promise on the part of each successive as-
signee of a lease to indemnify the lessee against any breach of
a covenant in a lease committed by the assignee during the
continuance of his (the assignee's) estate — which implied
promise is additional to (and not excluded by) the express
covenant of indemnity which each assignee enters into with his
o^vn assignor.''" The contract, however, between the lessee (the
assignor) and the assignee may be such as to modify or relieve
the latter from liability to the former, though it cannot relieve
such assignee from liability to the lessor for rents or royalties,
or the like, accniing during the time he holds the lease.*'^ But
where a second assignee of tlie lease was to pay a cash sum as
the consideration for the assignment, and an additional sum to
be paid if oil be found on tlie premises, it was held that the
lessor could not recover such additional sum, after oil was
found by him ; for the reason tliat it was merely a bonus to be
paid to tlie first assignee and not a covenant to run with the
land.*'* By no arrangement between the lessor and tlie assignee
can tliey lessen tlie liability of the latter to the lessee, or ren-
der the latter's rights less valuable. Thus where a first lessee
sublet a portion of his lease, and the sublessee agreed to drill
tw^o wells and pa}^ the first lessee one- fourth of the product
f roni- tlieni ; and after completing one well, the sublesseo pro-
oured a lease direct from the owner, which did not require
00 Burnett v. Lynch, 5 B. and C. Bright, 180 Pa. St. 181; 40 Atl.
.580; 8 D. and R. 368; 4 L. J. (0. Rep. 414.
S.) K. B. 274; Humble ■ v. Langs- caMoule v. Garrett, L. R. 5 Exch.
ton, 7 M. and W. 517; Steward v. 132; 39 L. J. Exch. 69; 22 L. T.
Wolveridge, 9 Bing. 60; Heller v. 343; 18 W. R. 697.
Dailey, 28 Ind. App. .555; 63 N. E. os Fisher V. Guffey. 193 Pa. St.
■Rep. 490. 393; 44 Atl. Rep. 459.
01 Brinkley v. Hambleton, 67 i\Id. g4 Fisher v. Guffey, supra.
169; 8 Atl. Rep. 904; Knupp v.
ASSIGXMEXT OF LEASE. 245
two wells to be dug, nor the payment of royalties if they were
dug, it was lield that this second lease was a fraud upon the
first lessee. "^^
§216. Assignor liable on account of lease as a surety.
The assignment of the lease- does not release the assignor from
the fulfillment of the covenants or engagements contained in
it; and while tlie assignee continues to enjoy it, such assignor
is in the jwsition towards him of a surety, and such assignee is
regarded in fact as the principal debtor."*' Even though the
lessor accept the assignee as a tenant that will not release tlie
lessee from his covenant to pay rent or royalties; but his lia-
bility continues by privity of contract until the lease shall
terminate. *'" The collection of rent from the assignee or sub-
tenant will not amount to a surrender.*'^ iS'or can the assignee
relieve himself from liability for a year's rent by surrendering
the lease before the end of the year, for which the rent is to
be paid, because of the failure to complete an oil or gas well,
in the absence of any agreement to release or acquit the pay-
ment."^
65 Akin V. Marshall Oil Co., 188 quire. 42 Pa. St. 77; Heller v. Dai-
Pa. St. 602; 41 Atl. Rep. 748. ley, 28 Ind. App. .55.5 ; 63 N. E. Rep.
66 Burnett v. Lynch, 5 B. and C. 490; Harris v. Heachman. 62 la.
589; 8 D. and R. 368; 4 L. J. (O. 411; 17 X. W. Rep. -592; Shaw v.
S.) K. B. 274; Humble v. Langston, Patridge, 17 Vt. 626; Way v. Reed,
7 M. and W. 517; Washington, etc., 6 Allen 364; Hoerdt v. Hahne, 91
Gas Co. V. Johnson, 123 Pa. St. 576; El. App. 514; Detroit Pharmacal
16 Atl. Rep. 799; 16 Morr. Min. Co. v. Burt, 124 Mich. 220; 82 N.
Rep. 165; Heller v. Dailey. 28 Ind. W. Rep. 893; Charlees v. Froebel,
App. 555; 63 N. E. Ptep. 490; Con- 47 ^Mo. App. 45; Lewis v. Brooks,
solidated Coal Co. v. Peers. 150 111. 8 Up. Can. Q. B. 576; Levering v.
344; 37 N. E. Rep. 937; Sanders Langley, 8 Minn. 107.
V. Sharp. 153 Pa. St. 555; 25 Atl. cs Jones v. Barnes, 45 Mo. App.
Rep. 524. 590.
67Bonetti v. Treat, 91 Cal. 223; 69 Breckenridge v. Parrott. 15
27 Pac. Rep. 612; Creveling v. De- Ind. App. 411; 44 N. E. Rep. 66.
Hart, 54 N. J. L. 338; 23 Atl. Rep. A lessee of a gas lease was to
611; Fisher v. Milliken. 8 Pa. St. pay a certain royalty. He assigned
111; Grommes v. St. Paul Trust an undivided one-half interest there-
Co., 147 111. 6.34; 35 N. E. Rep. 823 ; in to a corporation, to hold sub-
37 Am. St. Rep. 248; Frank v. Ma- ject to the royalty contained in the
246 OIL AND GAS.
§217. Sublease — liability of sublessee.
A sublease is always less tlian the lease of the sublessor; it
is only a part of the lease. Or, in other words, if die lessee
parts with all his estate except such as he reserves, however
:small the reservation may be, this amounts to a sublease ; while
if he part with the whole leasehold estate, it will be an assign-
ment. Some interest in the part of the premises sublet must
remain in the lessee ; henoe if he assign a distinct portion of the
premises — as one-half, by metes and bounds — it is an assign-
ment and not a subletting.^" If, however, as an illustration, a
lease be for ten years, and the lessee should demise a distinct
part or the whole of it for six years, that would be a subletting
and not an assignment.^^ Unlike the assignee of a lease, there
is no privity of estate between the original lessor and a sub-
lessee, and the latter is not liable to the former for any part of
the rent due him nor for the performance of the covenants in
the original lease.^" But the terms of the original lease must
be carried out, either by tlie lessee or the sublessee, or the orig-
inal lessor will have a right to terminate the lease, or have
right of action for damages, as the case may be.^^ Of course, if
a sublessee is accepted by the original lessor as his tenant, he
then" becomes liable to him tlie same as if he had his lease di-
rectly from such lessor.''^* If the original lease contain a pro-
hibition against subleasing, it will not prevent an assignment ;
and so, vice versa."^^ If a subletting be prohibited by the orig-
lease, and thereafter assigned the ^i Post v. Kearney, 2 N. Y. 394;
other one-half interest to a second Pingrey v. Watkins, 15 Vt. 479;
company. Tlie first corporation Collins v. Hasbrouck, 56 N. Y. 157;
operated the land under an agree- 15 Am. Rep. 407.
ment to account to the second com- 72Halford v. Hatch, Dougl. 187;
pany for one-half of the proceeds, Dartmouth College v. Clough, 8
the latter company to pay one-half N. H. 22; McFarlan v. Watson, 3
of the expenses. It was held that N. Y. 286; Gibson v. Mullican, 58
the first company was liable for the Tex. 430; Jennings v. Alexander, 1
■entire royalty. Burton v. Forest Oil Hilt. (N. Y. ) 154; Fulton v. Stuart,
€o. (Pa.), 54 Atl. Rep. 266. 2 Ohio 215.
70 Palmer v. Edwards, Doug. 187, t.'? Elms v. Randall, 4 Dana 519.
note; Sands v. Hughes, 53 N. Y. 74 Stimmel v. Waters, 2 Bush,
287; Bedford v. Terhune. 30 N. Y. 282.
457 ; Boardman v. Wilson, L. R. 75 Greenway v. Adams, 12 Ves. Jr.
4 C B. 57. 395: Boekover v. Post, 25 N. J. L.
ASSIGNMENT OF LEASE.
247
inal lease, a violation of it in this respect will give the original
lessor a riglit to have such original lease canceled ; ^"^ which,
of course, would carry down with it the sublease. But the lease
is not avoided merely because tliere has been an assignment or
subletting contrary to its provisions; it is merely voidable, at
the option of the original lessor." If the lessor accepts rent
of the assignee or sublessee, after the assignment or subletting,
with knowledge of such assignment or subletting, he will waive
the right to re-enter and declare tlie original lease avoided.'^
A sale by the lessees of an oil or gas well, of all the oil or gas
pumped or flowing from it, to a company taking charge of it
and conducting the oil or gas off the premises, is not an assign-
ment but a subletting."'' In such an instance, equity has power
to enteitain a bill for discovery to ascertain the rights and rela-
tions of th^ parties to the lease and sublease, and to compel an
accounting for the profits from the sale of oil and gas."" Under
a right to sublet and subdivide, a lessee may release a part of
the premises set off in i>artition to one of several tenants in com-
mon, and retain the lease in operation u]X)n the remainder of
the land.«^
285; Lynde v. Hough, 27 Barb. 415;
Hargrave v. King. 5 Ired. Eq. 430.
76 Stimmel v. Waters, 2 Bush.
282.
TT Collier v. Cunningham. 2 Ind.
App. 254; 28 X. E. Rep. 341; Jack-
son V. Groat. 7 Cow. 285; Cooney
V. Hayes. 40 Vt. 478 ; Burnes v. Mc-
Cubbin, 3 Kan. 221; Eldredge v.
Bell, 64 la. 125; 19 X. W. Rep. 879;
Khattuck V. Lovejoy, 8 Gray 204.
7s O'Keefe v. Kennedy, 3 Cush.
325; Heeter v. Eckstein, 50 How.
Pr. 445; ilurray v. Harway. 50 X.
Y. 337.
79 Akin V. Marshall Oil Co., 188
Pa. St. 602; 41 Atl. Rep. 748.
80 Ibid.
81 Blair v. Xorthwestern, etc., Co.,
12 Ohio Cir. Ct. Rep. 78; 5 Ohio C.
D. C. G20.
CHAPTER Vll.
RENTS AND ROYALTIES.
§218. Limitations of chapter.
§219. Construction of leases.
§220. Various methods of fixing rents or royalties.
§221. A royalty is rent. — '' Mining rent."
§222. Definition of rent and rent charges.
§223. Payment so much per well.
§224. Royalty, percentage of profits or income.
§225. Payment of operating expenses first. — Free gas.
§226. Free gas.
§227. Roj'alty in gas or oil used to operate leased premises.
§228. When royalty due. — Removal of oil from premises.
§229. When rent is due for failure to develop land.
§230. To whom payable. — Joint lessors.
§231. Damages for failure to deliver lessor his share.
§232. Interest on royalties.
§233. Waiver. — Parol evidence.
§234. Surrender. — Tract " retained."
§23.5. Interdependent conditions.
§236. New lease.
§237. Termination of lease by failure to keep its terms.
§238. Lessee cannot avoid payment by taking advantage of forfeiture
clause.
§239. Forfeiture clauses and liability for rent.
§240. Surrender of lease necessary to escape liability for rent.
§241. Eviction.
§242. Rent to be paid if well not drilled.
§243. Minimum production allowed.
§244. Consideration for lease may be purchase money.
§245. Consideration for grant part of minerals, creates an exception.
§24G. One well draining two tracts of land.
§247. Oral change of lease discharging or changing rents.
§248. Failure of oil, royalty ceases.
8249. Rent for exhausted well. — Flooded well.
§250. Instances of lessee's liability.
§251. Account rendered.
§252. How collected.
§253. Lien of royalty accruing during receivership.
§254. Assignment of ]ea,se does not carry oil in tank on premises.
248
RENTS AND ROYALTIES. 249
§218. Limitations of chapter.
The discussion of the subject of Rents and Royalties in this
chapter must necessarily be limited, in order to avoid repeti-
tions. The questions involved here are so intimately bound up
with the subjects discussed in other chapters, that it is impos-
sible to discuss all the cases without unnecessarily increasing
the size of this volume. Under the chapters on " Duration of
Leases," " Mortgagor and Mortgagee," " Life Tenants," " For-
feitures," " Assig-nments," will be found many cases on the
subject of Rents^and Royalties, that are pertinent to the sev-
eral subjects of those chapters.
§219. Construction of leases.
In discussing the right of a lessor to rent or royalties, it must
be borne in mind that oil and gas leases are usually construed
favorably, in this respect, to the lessor, if there be a doubt con-
cerning the right to rent or royalty, and its amount. The gen-
eral rule is undoubtedly that a deed is construed most strongly
against the grantor and in favor of the grantee. But such is
not the case in an instance of an oil or gas lease ; and the reason
for this arises out of the well kno^vn transactions of oil and
gas operators. These contracts are looked upon somewhat m
Sie same light as contracts of insurance. By long experience
insurance compmies have been enabled to draw a policy which
is often difficult to detennine just what their liability may be.
They have tiieir attorneys who have spent years in studying
contracts of insurance and the decisions of the courts, until
they have become thoroughly versed in all phases of such con-
tracts. On the other hand, the insured is usually without ad-
vice when entering into a contract of insurance, and he is almost
universally ignorant of the rules of law applicable to such obli-
gations. To such an extent is this true that the courts have
adopted a construction, in cases of doubt or obscurity, favorable
to the insured. WTiat is true of insurance contracts, may be
said to be true of oil or gas leases fif not of mining leases)
The lessor usuallv knows nothing of tlie law applicable to such
250 OIL AND GAS.
instruments; while the operator is usually well informed. Years
of experience have shown the operator how to draw a lease giving
him many advantages, of which the lessor has not even tlmu^lil.
For this reason the courts have adopted a rule to the ctreet to
construe an oil or gas lease most favorably to the lessor, where
its teniis can be so construed without doing violence to the lan-
guage used.^
§220. Various methods of fixings rents or royalties.
There are various methods in vogue in fixing the rents or
royalties that shall be paid for a mining or oil lease. Thus the
rent may be (1) a fixed sum ; or an (2) annual or other period-
ical Slim; or (3) a royalty on the amount of the minerals or
oil mined or produced, payable at fixed intervals or times ; or
(4) a royalty, not, however, less in the aggregate than a speci-
fied sum each year; or (5) a royalty accompanied by a covenant
to mine a certain minimum amount or pay a certain sum there-
on; or (6) in case of a gas lease, to bore so many wells and pay
so much a well, or forfeit a certain sum per well for a failure to
bore the required number; or (7) in case of an oil lease, to
pay a, certain percentage of the oil taken out of the premises.
It is believed that these divisions practically cover all methods
used in fixing the amount the lessee shall pay tlie lessor, aside
from the covenants to erect, improvements on the leased lands,
or make repairs, or develop the premises leased.
§221. A royalty is rent — " Mining rent."
Royalty is another term for rent, but is limited (except such
as given an author for the privilege of publishing his book, or
a patentee for the use of a patent) to rents due for the right or
privilege of taking minerals, oil or gas out of a designated
tract of land. In the discussion hereafter, a distinction will
be drawn between " rent " as such and " purchase money ''
under an instrument selling mineral and oil beneath the surface
iSteelsmith v. Gartlan, 45 W. R. A. 107; Huggins v. Daley, 911
Va. 27 ; 29 N. E. Rep. 978 ; 44 L. Fed. Rep. 606 ; 48 L. R. A. .320.
RENTS AND ROYALTIES. 251
of a specified tract; and in siicli an instance whatever would
not be a " rent " cannot be a " royalty," but must be " pur-
chase money." In practice the temi " mining rent " is used
to designate the consideration given for a mining lease, whether
such lease creates a tenancy, conveys a fee, or grants an incor-
poreal right or a mere license. Its true significance must be
read or determined in connection with the rights granted.^
§222. Definition of rent and rent charges.
Rent has been defined as " a certain profit issuing yearly out
of lands," as " return to the landlord for their annual use." ^
Again : " Rent is a sum stipulated to be paid for the actual
use and enjoyment of another's land, and is supposed to come
out of the profits of the estate." * A more extensive definition
is as follows : " Rent, or render, reditus, signifies a compensa-
tion, or return, it being in the nature of an acknowledgment or
recompense given for the possession of some corporeal in-
heritance. It must be a certain profit issuing out of lands and
tenements corporal; that is, from some inheritance whereunto
tlie owner or grantee of rent might (anciently) have recourse
to restrain." ^ A rent charge has been defined as " a rent
granted out of lands by him who is the owner thereof, with an
express clause of distress " and the reason assigned for this
definition is because the lands were charged with the distress,
and the grantee, without the clause, had no right of distress,
because there was no fealty annexed to the grant." " In an-
other case it is said that a " rent charge is a rent reserved where
the landlord has no reversionaiy interest. He would have," it
was said, " for such rent, no right to distrain, unless the power
be contained in the lease." ^ And a rent charge has been distin-
2 Where royalty on coal was con- 4 Marsh v. Butterworth. 4 oMicJi.
sidered part of the corpus of the 575.
estate and not a profit issuing out •''> Van Wicklen v. Paulson, 14
of it, see Duff's Appeal, 21 W. M. Barb. 654. See Bloodworth v. Ste-
C. 490; Hope's Appeal, 3 Ati. Rep. vens, 51 Miss. 475; Zouche v.
23; 2 Cent. Rep. 43; 33 Pittsb. L. Dalbaic L. B. 10 Exch. 177; Peo-
J. (N. S.) 270. pie V. Van Rensselaer, 8 Barb. 189.
3 Boyd V. McCombs, 4 Pa. St. 146. e Spencer v. Austin, 38 Vt. 258.
7 Cornell v. Lamb, 2 Cow. 652..
252 OIL AND GAS.
guished from an annuity by saying tliat a " rent charge is a
burden imposed upon and issuing out of lands, whereas an
annuity is chargeable only upon the person of the grantor." *
By these definitions it will be observed that rent, strictly speak-
ing, is not a part of the real estate, but is profit issuing out of
it. It will be necessary to bear these definitions in mind in
determining the status of a rent or royalty reserved for the
right to dig minerals or take oil or gas out of lands.
§223, Payment so much per well.
Occasionally a provision in a lease provides that the lessor's
compensation shall be so much per well drilled or to be drilled.
This is more frequently the case with respect to gas than oil
wells ; but occasionally it is applied to the latter. Thus a
lease for gas and oil provided if gas only be found, the lessee
should pay a stipulated sum per annum for each well " while
the same is being used off the premises," but contained no
clause inconsistent with this provision. It was held that the
lessee was not required to pay such sum for a gas well whose
product was not used, even though it might be used off the
premises without loss to the lessee.^ In the printed part of a
lease' it was stipulated that the lessee should have the exclusive
right to drill wells and operate tliem on a small plot of ground,
for which it was to furnish gas for four residences, free of
charge, so long as gas was obtained in paying quantities, and
to pay a rental of two hundred dollars a year for each well
completed. In the written portion it was stipulated that of
the we,ll rental, one hundred dollars should be paid in cash
and one hundred dollars in gas. The cash payment was to be
annually in advance, beginning with a certain date, to quote,
" whether a gas well is drilled or not. The gas payment above
7iamed begins with this date," which was the date of the lease.
The contract was carried out for two years according to the
provisions in the AA^itten stipulations. A contention arising
between the lessor and lessee, it was held that the cash and gas
8 Wagstaflf V. Lowerre. 23 Barb. n Ohio Oil Co. v. Lane, 50 Ohio
209. St. 307; 52 N. E. Rep. 791.
EEIS'TS AXD ROYALTIES. 253
payment were to be paid annually, whether a gas well was
drilled or not/" It is no defense to an action for rent, on a
lessee's failure to drill more than two wells, where a lease re-
quired him to drill three wells within a specified time, or pay
a year's rent, and also pay for all marketable wells two hun-
dred dollars, that to drill a tliird well would destroy the other
two, and would be of no use.^^ Where for the first well so
much was to be paid if it produced a specified amount of oil,
and so much more if the amount was greater; and if a second
well was put down, a specified additional amount ; and the first
well failed, but the second was productive, it was held that the
lessee must pay the additional sum for the second well, as pro-
vided for in the lease, even though the first well failed/" A
lease provided that a well should be .drilled within sixty days,
a second within four months, a third within eight months, and
a fourth within a year, the lessee " to pay one hundred and
fifty dollars for each location," the location to be selected by
both the lessor and lessee. The lessee was to hold fifteen acres
only for eadi well drilled, unless they were all completed as
agreed. The lease was held not to require the payment of lo-
cation money for any well drilled in addition to the four pro-
vided for, for the reason that the lessee, on the completion of
the four, was entitled to the oil right to the entire tract, and
in that event an increased number of wells would benefit the
lessor."
§224. Royalty, percentage of profits or income.
The word " profit " used in an agreement to pay a certain
portion " of all the profits realized from oil or gas " found on
loKokomo, etc.. Gas Co. v. Al- Dec. 650; reversing 4 Ohio N. P.
bright, 18 Ind. App. 151; 47 :N'. E. 407.
Rep. 682. As to release of rent per well and
11 Young V. Equitable Gas Co., 5 substitution of another rent, by
Pa. Super. Ct. 232; 28 Pittsb. L. J. changing the number of wells, see.
(N. S.) 75; 41 W. N. C. 24. Meeker v. Browing. 9 Ohio C D.
12 Brushwood, etc.. Co. v. Hickey 108; 17 Ohio C. C. .548; and Hunter
(Pa.). 16 Atl. Rep. 70. v. Apollo Oil and Gas Co. (Pa.), 54
13 Ft. Orange Oil Co. v. Wiehman, Atl. Rep. 274.
17 Ohio Cir. Ct. Rep. 57; 9 Ohio
254 OIL AND GAS.
the leased premisee, means the net amount realized after de-
ducting the expenses, and is not the equivalent of " income." ^*
Where the agreement was to give a certain portion of the profits
of all gas " conducted off the premises, for use or sale," above
the costs, all expenses, including cost of pipes and materials, and
payments for right of way and for employees' salaries, must be
deducted from the sales.^^ If there be no net profits, in such
instances, the lessee is not liable, not even if he permit another
to work the premises with the same understanding, who fails
to realize profits, if the lease does not prohibit subletting.^*'
But where the royalty was fixed at a certain portion of the oil
to be delivered, free of expense, in tanks or pipe lines, and on
gas " at the rate of one-eighth of income dollars per year," it
was held that the " income " referred to is the gross, not tbe
net income.^^
§225. Payment of operating expenses first. — Free gas.
A lease j>rovide.d for the payment of a royalty on the gas
actually produced, and also contained the following clause:
" If gas is obtained in sufficient quantities and utilized off these
premises, the consideration shall be the use thereof for domes-
tic purposes and one-eighth of the gas sold for every gas well
drilled on the premises herein described and piped off the
same." The lease also provided that the lessees should have suf-
ficient gas for the operation of the lease. It was held that the
lessor had the right to the gas if it was obtained in sufficient
quantities, only after the lessee had used gas for the purpose
of operating his lease in a proper and reasonable manner.^*
§226. Free gas.
A very common provision in oil or gas leases is that the les-
sor shall have sufficieiit gas, if any be found, for domestic or
i^Potterie Gas Co. v. Potterie, i^ Busby v. Russell, 18 Ohio Cir.
179 Pa. St. G8; 36 Atl. Rep. 232. Ct. Rep. 12; 10 Ohio C. D. 23.
15 Akin V. Marshall Oil Co., 188 is Fanker v. Anderson, 173 Pa.
Pa. St. 602; 41 Atl. Rep. 748. St. 86; 34 Atl. Rep. 434. See Akin
leCaley v. Portland, 12 Colo. v. Marshall 0^'' r-n.. 188 Pa. St. 602;.
App. 397; 56 Pac. Rep. 350. 41 Atl. Rep. 748.
RENTS AND ROYALTIES. 255
a specified use, in addition to pay for the lease or a certain
]X)rtion of the oil produced. This " free gas " may be re-
garded as a part of the royalty, as it in fact is. Such a con-
tract is binding upon the lessee. Thus where a contract pro-
vided that one of the parties should have sufficient natural gas
with which to oi^erate his electric light plant so long as a gas
well belonging to the other party would supply it, but allowing
such other party to use gas from the well for other purposes, it
Avas held valid ; and as the lessor had erected an electric lighting
plant at a large expense, which could be operated only with
gas, and there was no other gas obtainable or accessible to the
plant without great delay and expense, an injunction was issued
to prevent the cutting off of the supply.^''* A lease, executed
July 25, required the lessees to drill a well within twelve months,
or pay the lessor fifty-six dollars yearly as rent. It also pro-
vided that the lessee should furnish gas to heat and light the
dwelling on the leased premises on or before ]S[ovember 15th,
of the same year. It was held, notwithstanding these inconsis-
tent provisions, that they were independent and lawful, and
that the lessee was not excused from liability for a failure to
furnish gas within the specified time by their neglect, to drill
a well. In this case the lessee assigned the lease. The lessor
sold the premises leased in 1896 to the plaintiff, who occupied
them for some time thereafter. In 1898 this purchaser ex-
ecuted a deed absolute on its face, but only intended to secure
a debt he owed to his grantees. This deed provided that the
grantees were " to have the proceeds accruing from said lease."
In 1899 these grantees conveyed the leased premises by quit
claim deed to one M. at the request of the plaintiff. This quit
-claim deed was to secure M. for money he had loaned the plain-
tiff to pay the grantee in the deed of 1898. The plaintiff
brought suit for a breach of the agreement in the lease to fur-
nish gas for the dwelling on the leased premises. It was held
that the plaintiff who occupied and used the leased land was
19 Xenia Real Estate Co. v. Maey. Rep. 283, and Whitman v. Fay-
147 Ind. 568; 47 N. E. Rep. 147. ette Fuel Gas Co., 139 Pa. St. 492;
The court cited Graves v. Key City 20 Atl. Rep. 1062, which have been
Gas Co., 83 Iowa 714; 50 N. W. discussed elsewhere.
256 OIL AXD GAS.
the only one damaged by a .breach of the agreement, and that
he could maintain the action, and not the grantees in the deed
— the word " proceeds " referring to the rentals stipulated in
the lease, and being transferred on a condition never enforced.^*
A lease contained a provision requiring the lessee to furnish the
lessor gas free for the latter's residence on the premises. It
gave tlie lessee the privilege to remove his machinery' and
fixtures, but provided if he abandoned the lease while there was
a well furnishing gas sufficient for the residence, the well should
be left in such a condition as it could be used by the lessor.
It was held that the lessee could not remove the pipe from the
well, diereby cutting off the supply of gas to the residence, re-
gardless of the fact whether or not such pipe was personal
property ; and a complaint charging that he did remove the pipe,
whereby the gas was wrongfully cut off, stated a good cause of
action."^ Where a gas company entered into a contract with
plaintiff, who was not the owTier of the premises leased, to
furnish gas for dwelling house purposes so long as a suflficient
amount of gas would flow from its well ; and a few years
thereafter the company gave notice that it would cut off the
supply of gas, claiming that the flow was no longer sufiieient
to supply the plaintiff, it was held he was not entitled to an
injunction restraining the company cutting off the gas, in the
absence of a showing that he had no other means of heating or
lighting his dwelling."' Under a provision that if gas be ob-
tained on the leased premises in suflHcient quantities and used
off the premises, the lessor shall be entitled to the free use
thereof for domestic purposes, the right of the lessor to the use
of ^ for such purposes is conditioned u]X)n there being a suffi-
cient quantity for that purpose remaining after its use in a rea-
sonable manner by the lessee in the operation of the lease. ''^ A
right given a lessor to use gas for his mill and three houses is
confined to an attachment to a well drilled on his oavu premises,
20 Indiana Natural Gas and Oil — Loy v. Madison, etc.. Gas Co.,
Co. V. Hinton, 1.50 Ind. ■; 64 N. 156 Ind. 332; 58 N. E. Rep. 844.
E. Rep. 224. 23 Fanker v. Anderson, 173 Pa.
21 Ohio Oil Co. V. Geiest, 30 Ind. St. 86 ; 34 Atl. Rep. 434.
App. — ; 65 N. E. Rep. 534.
RENTS AND ROYALTIES. 2J5 <
and he cannot insist tliat lio receive gas from a pipe line con-
veying gas from otlier wells beside that upon his own premises,
although he was originally permitted to attach to a different
piix3 lino which had l>een taken np. In this case — a case of a
grist mill — the substitution of the roller process instead of the
old bun' process was held not a violation of the contract for free
gas for the mill "" as now erected and built," the change not
involving an increase in tlie consumption of gas.^'* If a city
or town gi'ant a gas company the exclusive right to the use of
its streets', on condition that it funiish it with free gas " so long
as they shall have the exclusive right to use the streets and
alleys of said city for tlieir pipes," such company is only com-
pelled to furnish the gas so long as they have the only right
granted, and the granting of the privilege to another company
giving it the right to lay pipes in the streets for the same pur-
poses as tlie first grant, relieves the first company from its
obligation to furnish free gas. In this case the second contract
contained a condition precedent to the effect that such company
should have such right if one or more gas wells were in opera-
tion within one year; and. it was held that the holders of the
original frandiise were not relieved from furnishing free gas
to the city until the condition in the second contract, had been
perfomied and the right to occupy the streets with its pi}>es by
the second company acquired.""
§227. Royalty in gas or oil used to operate leased premises.
It has been held in the case of a coal mine that upon coal
consumed in running an engine to hoist the coal from tlie mine,
24Pearce v. Bridgewater Gas Co., Gas Trust Co. (Ind.), 29 N. E. Rep.
28 Pittsb. Leg. J. (N. S.) 171. 398. 31 L. R. A. 673. was one con-
25 Newark Gas and Fuel Co. v. taining a question of "free gas,"
Newark, 8 Ohio S. and C. P. Dec. but a rehearing in it was granted,
418; 7 Ohio N. P. 76. and no second opinion filed.
An assignee of the lease is bound If a lessor land owmer use free
to comply with the provision in the gas after forfeiture incurred, he will
lease for free gas. Peers v. Con- not waive his right to declare a for-
solidated Coal Co., 59 111. App. ,59.5; feiture. American Window Glass
Consolidated Coal Co. v. Peers, 59 Co. v. Williams (Ind. App.), 66 N.
111. App. 604. E. Rep. 912.
The case of Evans v. Consumers'
258 OIL AND GAS.
no royalty was due. In that instance the lease, provided for a
royalty per ton on all coal mined, the ton in all cases to be
2,240 pounds prepared coal ; and it was shown that it was the
custom at the time of the execution of the lease to hoist ])ro-
pared coal from the mines by the use of steam power obtained
hj the incidental consumption of the coal itself.'*^ But where
Ihe lessee agreed to give a portion of all the oil and one-fourth
oi the profits of all gas " conducted off the premises or sold, it
was held that in ascertaining the amount due lessor, all tlie ex-
penses, including the cost of ]>i|Tes and materials, payments for
right of way and for employees' salaries must first be deducted,
and one-fourth of the remainder paid him; and that gas used
by the lessee should be charged for at the same rates as if sold
to others.-^
^228. When royalty due, — removal of oil from premises.
The usual lease fixes the time when the royalty shall be
paid — as, where it provides for payment of a royalty on all oil
produced during the month. In such an event the royalty is
due, of course, at the end of that period of time. As a rule
little controversy can arise over the point of time when the
royalty is payable. If the lease should provide that it was
payable on each barrel of oil " mined, taken, or removed from
the premises," then the royalty is due when the oil is removed
from the well, and its maturity is not postponed until after its
shipment. "^
^ Wright V. Warrior Run Coal in quarterly installments. It was
€o., 182 Pa. St. .514; 41 W. N. C. held that the year for which the
170; 9 Kulp. 1; 28 Pittsb. \j. J. payments were to be made oom-
(N. S.) 202; .38 Atl. Rep. 491. menced from the beginning of the
27 Akin V. Marshall Oil Co.. 188 actual " mining year," and not from
Pa. St. 614; 41 Atl. Rep. 748. See the time at which the lessee had
also Meeker v. Browning, 9 Ohio C. procured his machinery and was
D. 108. ready to proceed with mining opera-
28 Higgins V. California, etc., Co., tions. Flynn v. White Breast Cnnl
109 Cal. .304; 41 Pac. Rep. 1087. Co., 72 Iowa 738; 32 N. W. Rep.
A coal lease provided that the 471.
lessee* should mine a certain quan- Lessees of a stone quarry agreed
tity of coal yearly, and pay royalty to pay a certain rate for stone
RENTS AXD ROYALTIES. 259
§229. When rent is due for failure to develop land.
Frequently leases require tlie premises to be developed by a
certain time, and if not developed, then the payment of a
monthly or yearly rental. In such instances it becomes a ques"
tiqn when the rent is payable. In one case a lease required a
Avell to he completed within ninety days, and, " in case of
failure so to do, to pay a yearly rental from the expiration of
the ninety days until such well shall be completed." It was
held that the annual rental was due only at the end of one year
after the default, and not from the beginning of the lease. ^'^
Where the lease required tlie payment of eight dollars per
annum from the time of its execution until a fixed date, and
thereafter one hundred dollars annually for each gas well after
its completion, but until a well was drilled the rent should be
eight dollars, there being no clause binding the lessee to drill
a well, it was held that the higher rental was not due until the
well was completed.^"
§230. To whom payable — joint lessors.
Royalties or rent is payable, of course, to the lesssor or his
agent, or to the person designated in the lease as the beneficiary
or recipient. On such a proposition as this, there can be no
dispute. Of course, if the lessor assign or convey the lease, or
convey the fee in the leased premises, without reserving the
right to the rent or royalty, then it will be payable to his
assignee or grantee. And if the lease be granted by two or
more joint owners of tlie premises, and the rent or royalties-
" shipped " by them. It was held without a second opinion beino^ filed,
that no royalty was due for stone It is not known on what point thT
quarried and ready for shipment, rehearing was granted,
but not actually shipped. Crawford See Edmonds v. Mounsey, 15 Ind,
V. Oman, etc., Co. (S. C)., 12 S. E. App. .399; 44 N. E. Rep. 196, and
Rep. 929. Breckenridge v. Parrott. 15 Ind,
29 Evans v. Consumers' Gas Trust App. 411; 44 X. E. Rep. 66.
Co. (Ind.), 29 N. E. Rep. 398; 31 so Diamond Plate Glass Co. v,
L. R. A. 673. A rehearing was Tennell. 22 Ind. App. 346; 52 N. E,
granted, however, in this case; and Rep. 782.
after that the appeal dismissed
260 OIL AND GAS,
fixed in it is reserved to tliem jointly, witliout a designation of
any particular part due any of the lessors, payment to one will
be a payment to all, especially so if there be no objection upon
.the part of the lessors not receiving them.^^ And if the rent is
payable to two lessors, one of whom in fact had no interest in
the premises, in an action to recover one-half of the rent brought
by the party having no interest in the premises, the lessee may
show the circumstances under which such lessor signed the lease,
not to deny his landlord's title, but to deny that, as to such al-
leged lessor, the lease created that relation.^" In such a case
the assignment by the owner of his interest in the lease, does
not amount to a severance of his interest nor an apportionment
of the rent, as a matter of law.^'^ Where a lease was put upon
six hundred acres, divided into three faruis, and the lessor
dying devised them to his three cliildren ; and the lease provided
that all its conditions should extend to the lessor's heiirs, as-
signs and j>ersonal representatives, it was held that each child
was entitled to a share in the royalties, proportioned according
as his holdings bore to the six hundred acres, although the wells
were all on one farm.^* The grantor of leased premises may
be' entitled to the royalties, even though he made no reservation
in his deed ; and the lessee may show this fact when sued by the
grantee in the deed of conveyance ; and this was held particu-
larly true Avhere a wife and her husband, in a conveyance of
her property, at the time of such conveyance, expected that a
mortgage of the oil interests would be paid off, and that the
rights would revert to them.^^ If the lessee assign the lease,
resei'ving rent to himself, then his portion must be paid to him,
while the portion to the lessor must be paid to such lessor.^®
31 Swint V. McCalmont Oil Co., 34 Wettengel v. Gormley, 184 Pa.
184 Pa. St. 202; 41 W. N. C. 491; St. 354; 39 Atl. Rep. 57.
38 Atl. Kep. 1021; 28 Pittsb. L. J. 35 Simmons v. Buckeye Supply
(N. S.) 319; Harness v. Eastern Oil Co., 21 Ohio Cir. Ct. Rep. 455; 11
Co., 49 W. Va. 232; 38 S. E. Rep. Ohio C. D. 690.
662. 30 Harris v. Cobb, 49 W. Va. 350 ;
32 Ibid. 38 S. E. Rep. 559.
33 Ibid.
EENTS AND ROYALTIES. 261
§231. Damages for failure to deliver lessor his share.
If a lessee fail or refuse to deliver tlie lessor his share of the
oil reserved as royalty he will be liable for the actual market
value of the oil at the date of refusal to deliver, with interest
from that date.^'^
§232. Interest on royalties.
Interest begins to run on royalties from the date they are
due, or if a demand for them is necessary before suit brought,
then from the date of the demand. Where a notice of for-
feiture was of no effect, for the reason that the demand for
unpaid royalties was excessive, it was held that the lessee was
only required to pay with interest whatever was due at the
time the notice had been given, and the royalties on coal which
had been actually mined after the date of the demand and
before suit brought, with interest, when a tender had been
made.^^
§233. Waiver — parol evidence.
In an action to recover rent or royalties due under a written
lease for a year, parol evidence was held admissible to show a
written waiver of such rent or royalty.^®
§234. Surrender — tract " retained."
A lease covered several tracts of land. It provided that in
the event any tract failed to yield the lessor a certain royalty,
the lessee should pay a certain named rental upon each tract
" retained." It was held that the word " retained " referred
37 Union Oil Company's Appeal, 3 Storch, 5 Lack. Leg. N. 189; 7 Del.
Penny. (Pa.) 504. The court re- Co. Rep. 467.
fused to apply the rule applicable 39 Crawford v. Bellevue, etc.. Gas
to stocks in an instance of a refusal Co., 183 Pa. St. 227; 38 Atl. Rep.
to deliver. 595; Wilgus v. \Miitehead, 89 Pa.
38 West Ridge Coal Co. v. Van St. 131.
262 OIL AND GAS.
to the right to operate, which right continued so long as the
lessee had made no formal surrender.**'
§235. Interdependent conditions.
A lessor was to receive one-eighth of all oil produced under
a lease. Subsequently he and the lessee entered into a written
supplemental contract in reference to an existing oil well then
on the farm, in which it was agreed that if it should produce a
daily average of five barrels of oil for thirty days, the lessee
should pay the lessor $250 ; if ten barrels, $500 ; " should the
second well provided for in lease in like manner produce fifteen
barrels, the lessee to pay the lessor the further sum of $1,000.
Explanations : The understanding and agreement in regard to
the test well being that plaintiff is in uo event to receive exceed-
ing the sum of $500." The first well, being old ceased to pro-
duce oil; but the second produced more than fifteen barrels for
thirty days. The lessee claimed that the words " in like man-
ner " and " further" showed that the sum to be paid upon tlie
production of tlie second well was dependent upon the produc-
tion of the first, and as that had failed, nothing was payable on
the second. But the court held that the sums to be paid were
in the nature of a bonus, to be paid upon the production of the
wells, and that the lessee was bound for the payment on the sec-
ond well, though the first produced nothing.*^
§236. New lease.
If the lessor give the lessee a new lease for the premises, it
will amount to a surrender of the old one if the lessee accept it ;
and will release the lessee from his obligation to pay rental or
royalties under the old lease from the date of the surrender,
though not from those that had accrued at the time of its ac-
ceptance.*^ In such an event, if the lessee has assigned the
40 Jamestown, etc. Co. v. Egbert, 42 Smith v. Munhall, 139 Pa. St.
152 Pa. St. 53; 25 Atl. Rep. 151. 253; 21 Atl. Rep. 735; Meeker v.
41 Brushwood DeA'eloping Co. v. Browning, 9 Ohio C. D. 108; IT
Hickey (Pa.). 16 Atl. Rep. 70; 2 Ohio C. C. Dec. 548.
Mon. (Pa.) 65.
RENTS AND ROYALTIES. 263
lease, but a forfeiture had taken place, before the assignment,
though not declared until afterward, and the lessor give the
lessee a new lease, its acceptance will l)e a surrender of the old
one, depriving the assignee of all rights under it, but releasing
him from tlience on for the rents and royalties/^
§237. Termination of lease by failure to keep its terms.
Although the right to declare a forfeiture of a lease is for
the benefit of the lessor, and tJie lessee cannot avail himself of
an actual forfeiture on his part, yet the lease may be so con-
ditioned tliat a failure to keep tlie condition, even on the part
of the lessee, vnW tenninate its existence and relieve him from
any liability, or any further liability, for rents or royalties. In
such instances the life of the lease is made to depend upon the
performance of the condition imposed. Thus where a grant
was made of the oil, gas and minerals underlying a certain
tract of land, on the condition that the grantor was to have a
certain portion of the product mined ; and the deod provided
that if no well was completed within a certain period of time
from its date, the grant should be null and void, unless the
grantee should pay the grantor a specified rental for each year
the completion of the well was delayed, and it was also stipr
ulated that the grantee might surrender tlie lease at any time
by paying the rental on the land to the time of the surrender,
it was held, in as much as it was optional with the grantee as
to whetlier he would do anything, and as no well had been
drilled, there was no obligation resting upon him to pay any
rent, or to make compensation for oil or gas.** Where an oil
or gas lease was given for a period of twenty years ; and if gas
was found in sufficient quantities, and was used, there should be
paid five hundred dollars per annum for each well drilled ; one
well was to be completed within six months, and if it was not,
then the lessee was to pay a certain sum per annum in full for
43 Natural Gas Co. v. Philadel- 624; 57 N. E. Rep. 260. See Snod-
phia Co., 158 Pa. St. 317; 27 Atl. grass v. South Penn. Oil Co., 47 W.
Rep. 051. Va. 509; 35 S. E. Rep. 820.
4* Brooks V. Kunkle, 24 Ind. App.
2Q4: OIL AND GAS.
such yearly dela^', until tlie well was completed ; and a failure
to complete within that period, or pay such rental, rendered the
lease void ; and if neither gas nor oil was found on the prop-
erty within two years from the date of the leasfe, then the lease
was " to expire and he of no effect " ; and the lessee permanently
ceased to use a gas well drilled on the premises before the ex-
piration of the twenty years for the reason that the gas supply
was exhausted, it was held that he was not liable for the annual
rent after so ceasing to use the premises. ^^ Where a lease con-
tained no covenant to pay rent or develop the premises, .merely
providing that it should become null and void, and all rights
cease, unless a well should be co^mpleted on the premises within
a month, or unless rent be paid in advance at a certain rate per
month, it was held that the lessee was under no obligation to
continue his explorations, and was under no obligation to pay
rent.**"
§238. Lessee cannot avoid payment by taking advantage of
forfeiture clause.
It is a trite rule of law that a man cannot take advantage of
his own default to avoid liability. Nor can he tiake advantage
of his default in the development of leased property to avoid
payment of rent. Where a twenty-year lease provided that if a
well was not commenced within three months, the lessee should,
after that period, pay a certain monthly rental until the work
was commenced ; and a clause provided that in no case should
the commencement of tlie well be delayed beyond six months,
and if no well was begun within that period, the lease should
be forfeited; it was held that the clause of forfeiture was for
tliQfc -benefit of the lessor, and until he elected to enforce it, the
lessee's liability to pay rent continued.*' A stronger case arose
45 Williams V. Guffey, 178 Pa. St. Co. v. Curless, 22 Ind. App. 34G;
342; 35 Atl. Rep. 875. 52 N. E. Re^). 782.
46 Glasgow V. Chartiers Gas Co.. *" Matthews v. People's, etc., Gas
152 Pa. St. 48; 25 Atl. Rep. 232; Co., 179 Pa. St. 165; 39 W. N. C.
contra, Chamberlain v. Parker. 45 544; 36 Atl. Rep. 216; Brown v.
N. Y. 569. See Diamond Plate Glass Vandergrift, 80 Pa. St. 142.
REACTS AXD ROYAl.TIES. 265
in the same State. It was provided in a lease, among other
things, that if the lessee did not pay rent within ten days after
it was dne the lease should be void, and neither party, after
snch failure, shonld have a right of action by reason of the
breach. It was held that the lessee conld not relieve himself
from liability for the rent, or prevent the lessor from main-
taining an action therefor, by making defanlt in its payment.'***
So where a lease provided that if the lessee failed to complete a
Avell within a month he should, after that time, pay a certain
rental, until a well was completed ; and that a failure to com-
plete a well or pay the rental should annul the lease, the " lessee
having the option to drill said Avell or not, or pay said rental
or not, as he may elect," it was held that he must drill a well
or pay the rent, and that he could not avoid the liability by re-
fusing to do either.*'' But where the lessee was to deliver a
part of the oil and pay a certain sum for gas, and the lease was
to be null and void unless a well was completed within a year,
or unless the lessee paid a certain amount quarterly in advance
for each additional three months the completion of well was de-
layed, it w^as held that the lease did not bind the lessee to pay
any rent for the land or for delay in commencing to bore for oil
or gas, as the only consequence that could result from his failure
would be a forfeiture of the lease. ^°
§239. Forfeiture clauses and liability for rent.
A twenty-year lease required operations to be begiui in ninety
days, to be prosecuted diligently and continuously, and a well
to be completed by a certain date. Failure to do so rendered
the lessee liable for an annual sum, payable quarterly in ad-
vance. Xo work was done, but the first quarter was paid volun-
tarily, and a judgment recovered for the second quarter, which
was paid ; and an action was brought to recover for tJie third
*** Coiio-le V. National, etc., Co.. •''•*> Snodgrass v. South Penn. Oil
165 Pa. St. 561; 30 Atl. Rep. 1038; Co., 47 W. Va. 509; 35 S. E. Rep.
Roberts v. Bettman, 45 W. Va. 143 ; 820 ; Glasgow v. Chartiers Gas Co.,
30 S. E. Rep. 95. 152 Pa. St. 48; 25 Atl. Rep. 232;
40 Jackson v. O'Hara, 183 Pa. St. affirming Glasgow v. Griffith, 22
233; 38 Atl. Rep. 624. Pittsb. L. J. (N. S.) 181.
266 OIL AND GAS.
and fourth quarters, to whidi the lessee set up as a defense ihc
clause in the lease providing that if he failed to perform all
the covenants of the lease, sudi failure to perform, or breach
of the covenants, should " work an absolute forfeiture of " the
grant. It was held that this was no defense ; for the reason that
only tlie lessor could take advantage of the violation of its pro-
visions.^^ And where tlie clause was that a failure to complete
a well within the time and place described should " render the
lease null and void, and to remain without any force and effect
between the parties," a similar iiiling was made.^" In another
case the lease provided that work should begin within sixty
days, and a well be completed within three months after com-
mencing it. If there was a failure to complete a well, the les-
see was to pay tlie lessor for such delay one thousand dollars
annually within three months after a well was completed. It
was also" es[>ecially provided that a failure to complete one well
or to make such payment within the time specified should ren-
der the lease null and void, and to remain without effect between
the lessor and lessee. The lessee neither drilled a well nor paid
any sum of money. The lessee, when sued for a breach of the
covenants of the lease, claimed that his failure to keep them
avoided the lease from the beginning, and therefore he was not
bound by them ; but the court held that no such construction
should be given to tlie lease, and that he could not set up his
own default as a defense.^^ A like ruling was made where the
lease provided that a failure to keep its covenants on the part
of the lessee should " render the agreement null and void,"
and no right of action should after such failure accrue to either
party on account of the breach of any promise or agreement "
cx)ntained in. it.^* Even where a lease provided it should be
void and of no force and effect without the consent of both the
lessor and lessee, it was considered that it was for the lessor to
51 Wills V. Manufacturing, etc., ss Galey v. Kellerman, 123 Pa. St.
Co., 130 Pa. St. 222; 18 Atl. Rep. 491; 16 Atl. Rep. 474.
721; 5 L. R. A. 603. s* Ogden v. Hatry, 14.5 Pa. St.
52 Ray V. Western, etc., Co., 138 640; 23 Atl. Rep. 334; Leatherman
Pa. St. 576; 20 Atl. Rep. 1065; 12 v. Oliver, 151 Pa. St. 646; 25 Atl.
L,. R. A. 290; Cochran v. Pew, 159 Rep. 309.
Pa. St. 184; 28 Atl. Rep. 219.
RENTS AND ROYALTIES. 267
declare a forfeiture and not the lessee, and unless tlie former
did declare one, the latter was bound. ^'^
§240. Surrender of lease necessary to escape liability for rent.
So long as a lessee holds possession of the leased premises
under tlie lease, he must pay rent, even though the lease provide
that in a certain event it was to be null and void. Thus, where
the term of a coal lease was to end when the workable coal on
it was exhausted, but it gave the lessee the use of a part of the
demised premises, in connection with mining of coal on ad-
joining land, the lessee was required to pay the minimum rent
provided for in the lease, so long as he retained possession for
any purpose under it, although the coal had been exhausted.^"
And if the lease provide that its surrender should release the
lessee from all its covenants and for money due, yet he will not
be released by the surrender unless he pay all rents due up to
the time he gives up such lease ; ^^ for such a provision applies
only to future rent, and not to rent due at the time of the sur-
render.^^ Where re;it was to be paid if no well was completed
within the first year, a surrender at the end of the first ten
months of the year did not relieve the lessee for the year's
rent.^''
55 Phillips V. Vandergrift, 146 Pa. Co. v. Blake, 13 Ind. App. 680; 42
St. 357; 23 Ail. Rep. 347; .Jackson N. E. Rep. 234; Smiley v. Western,
V. O'Hara, 183 Pa. St. 233; 38 Atl. etc., Co., 138 Pa. St. 576; 21 Atl.
Hep. 624. Rep. 1; Leatherman v. Oliver, 151
56 Lennox v. Vandalia Coal Co., Pa. St. 64G; 25 Atl. Rep. 309; Og-
ee Mo. App. 560; 158 Mo. 473; 59 den v. Hatry, 145 Pa. St. 640; 23
S. W. Rep. 242; Roberts v. Rett- Atl. Rep. 334.
man, 45 W. Va. 143; 30 S. E. Rep. 5o Rreckenridge v. Parrott, 15 Ind.
95. ' App. 411; 44 N. E. Rep. 66.
57 Douthett V. Gibson. 11 Pa. Sup. Whether a surrender can be made
Ct. Rep. 543; Aderhold v. Oil Well by answer to a complaint to recover
Supply Co., 158 Pa. St. 401; 28 royalties due arose in Bettman v.
Atl. Rep. 22. Shadle, supra, but was not decided.
5s Edmonds v. Mounsey, 15 Ind. See also Douthett v. Gibson, 11 Pa.
App. 399; 44 N. E. Rep. 196; Bett- Sup. Ct. Rep. 543, where a surren-
man v. Shadle, 22 Ind. App. 542; der was made after suit brought,
.53 N. E. Rep. 662; Columbian Oil but full rent recovered.
268 OIL AND GAS.
§241. Eviction.
If the lessor convey the leased premises, witliout any reserva-
tion of the lessee's right to enter and drill for oil or gas, his
act will be a constructive eviction, whicli will terminate the les-
see's liability for rent.^" Eviction by the lessor, of course,
terminates the lease. *'^ But where the eviction is by another,
the usual rules with regard to the rights of landlord and tenant
prevail. If there be a covenant for quiet enjoyment, either im-
plied or expressed, and the lessee be evicted by a stranger, he
will not be liable for rent, thereafter at least. *^' Where the
owner of coal land sold the coal underneath it, reserving to
himself the right to drill three oil wells on the premises, and
then leased the land above the coal for oil purposes; and the
lessee, to avoid litigation with the purchasers of the coal, who
denie.d his right to drill the w^ells, paid them a certain sum, it
was held that, though the lease contained words of grant, tliis
did not imply a covenant for quiet enjoyment, since the lease
was a mere right to operate, and that tlie act of the lessee in
compromising with the coal OA\mers was no defense to a suit for
the amount due under the lease.*'^
§242. Rent to be paid if well not drilled.
It is a very common clause in oil or gas leases that if a well
be .not dug, or if it be not dug by a certain time, then rent for
the tract leased shall be paid, either after a certain time, or
from the date of the lease if the well be not dug by a certain
date. Thus where a lease provided that tlie lessee should have
the right to enter on certain described premises, drill and
60 Mathews v. People's Natural lessor, see Line v. Stephenson, 5
Gas Co., 179 Pa. St. 165; 39 W. N. Bing. N. C. 183; 7 L. J. C. P.
C. .^4; 36 Atl. Rep. 216. What is 263; 7 Scott 69; 1 Arn. 385; Mer-
not an eviction, see Tiley v. Moyers, rill v. Frame, 4 Taunt. 329.
43 Pa. St. 404. 63 Chambers v. Smith, 183 Pa. St.
61 Miller v. Michel, 13 Ind. App. 122; 38 Atl. Rep. 522. For an evio-
190; 41 N. E. Rep. 407. tion the lessee has an action for
62 Noke's Case, 4 Rep. 80 b. Cro. damages. Hoosac Mining, etc., Co.
Eliz. 674. If the covenant is only v. Donat, 10 Co'o. 529; 16 Pac. Rep.
for a quiet enjoyment as against the 157.
RENTS AND ROYALTIES. 269
operate for oil and gas, erect buildings and lay all necessary
pi}3es for tlie production and transportation of them from the
pa-emises, reserving a certain portion of the gas and oil, but
provided tliat the lessor leased '' one acre anywhere out of tlie
above described tract for a test well, and, if oil or gas is found,
then " the lessee " has the balance of the above land to drill at
the same royalty as tlie within lease," upon the condition that
if gas only be found the lessor should receive one hundred dol-
lars for " each well " ; and tlie lessee was to commence oj^era-
tions within thirty days from the dat-e of the lease, and failing
to do so, to pay the lessor annually five dollars per acre until
a well was completed; it was held that the right granted was
absolute to take all the gas and oil under the entire tract, and
failing to make the test well, five dollars per acre was to be
annually paid the lessor.*''* Where the well was to be dug within
six months, and on failure to do so, a rent of five hundred dol-
lars a year was to l>e paid until the well was completed, but
the tenant had the right to protect himself from " further pay-
ments or liabilities " accndng under the lease, by a surrender
of it, it was held that a surrender made eighteen months after
its date did not release the lessee from the five hundred dol-
lars' rent for the previous year."^ Where a lease provided for
a certain annual rental, payable quarterly, for the product of
each well, and reserving a right in the lessee to put an end to
the lease by a reconveyance, it was held that the liability for
gas used off the premises was not limited to the jieriod of time
when gas was actually used, but if gas was used when the year
commenced the whole amount for that year then became due
and payable, even though the gas was not used for the entire
year.*'*' If a lease provide for a periodical rental until a well
be completed, or until the expiration of a certain fixed term,
the lessee is bound to pay the rental, even though he does not
mthin such term enter on the land and complete a well, unless
64 Columbian Oil Co. v. Blake, 13 Co., 158 Pa. St. 401 ; 33 W. N. C.
Ind. App. 680; 42 N. E. Rep. 234. 336; 28 Atl. Rep. 22.
65 Aderhold v. Oil Well Supply sg Coulter v. Conemaugh Gas Co.,
30 Pittsb. L. J. (X. S.) 281.
270 OIL AND GAS.
the lessor prevent him from doing so.*'^ A provision, in in-
stances of the kind given above, that the surrender of the lease
shall he a satisfaction of all damages between the lessor and
lessee applies only to future rent, and not to rent due at the
time of the surrender. ''^ So where the lease contained a pro-
vision that it should bind the assignee, and provided that a well
should be completed within a year, or, on default the lessee
pay " for further delay a yearly rental " until the well was
completed, it was held that one becoming the owner of a one-
half interest soon after the lease was executed, and shortly after
the expiration of the first year becoming, by assignment from
the original lessee of the remaining interest, the sole owner of
the lease, was liable for the rent due for the second year, the
well not having been completed.®" A lease provided that the
lessee should have the right to drill for gas in three tracts of
land out of a one hundred-acre tract, and bound the lessor not
to grant any other person the right to drill on this one hundred-
flcre tract. The lessee agreed to furnish gas for a dwelling-
house and the lease as long as the lease was in force, to pay one
hundred dollars annual rental for each well, pay a like amount
a year until a well should be drilled ; and to drill one well by
.a certain date, and pay for it whether drilled or not. When-
aever gas ceased to be used generally for manufacturing jDur-
poses in the county, the lease was to terminate. It was held
that the lessee was bound to drill at least one well, and, failing
to do so, he must pay one hundred dollars yearly and supply
-gas for the dwelling house, for the reason that, during the con-
tinuance of the lease, the lessor and his grantees or assigns,
could not drill or permit any one to drill on the one hundred-
;acre. tract.^" So where a well was to be put down by a certain
lime, or thereafter the lessee must pay the lessor a certain sum
annually until a well was completed, it was held that it was no
excuse for the lessee that " soon " after the lease was executed
6T Lawson v. Kirchner, 50 W. Va. 69 Breckenridge v. Parrott. 15
•344; 40 S. E. Rep. 344. Ind. App. 411; 44 N. E. Rep. 66.
68 Edmonds v. Mounsey, 15 Ind. 'o Simpson v. Pittsburgh, etc., Co.,
App. 399; 44 N. E. Rep. 196. 28 Ind. App. 343; 62 N. E. Rep.
753.
KENTS AND ROYA"LTIES. 271
it was discovered that the territory was wortliless for gas or
oil, and for that reason the well was not completed. The lessee-
was compelled to pay the annual rent.'^ Where a stipnlated
sum was to be annually paid if there was delay in completing
a well, and no date was fixed when the rent should be paid,
it was held that it fell due by operation of law at the end of
each year/"
§243. Minimum production allowed.
In instances of mining leases there is often a requirement
tliat not less than a certain amount of ore shall be mined and
so much royalty per bushel or ton paid annually ; and if less
than the amount be mined, yet the gross amount of royalty shall
be the same as if the requisite amount had been mined ; and
if more than the requisite amount, then the gross sum of royal-
ties shall be increased by the surplus bushels or tonnage. In
an instance of this kind, where the lessor had the power to
terminate the lease if the lessee should not be able to find sufii-
cient ore, it was held that until tJie lease was terminated by
the lessor, the lessee continued liable for the least annual sunf
provided for by the leaseJ^ Occasionally leases of this char-
acter allow the surplus in one year to be applied to the deficiency
<irising in another, in which event it is not necessary for the
deficiency to occur before the excess is produced, and an excess"-
paid for in one year may be applied to the deficiency of a sub-
sequent year.'* Where mining works are closed a part of tluv
year, without the lessee's fault, he must pay an amount of the'
minimum royalty bearing the same proportion to the whole that
"1 Springer v. Citizens' Natural not limited to a recovery of liquidat-
fias Co., 145 Pa. St. 430; 22 Atl. ed damages.
Rep. 986. 73 Lehigh Zinc and Iron Co. v..
72 Lynch V. Versailles Gas Co., Bamford, 150 U. S. 005; 14 Sup.
105 Pa. St. 518; 30 Atl. Pvep. 984. Ct. Rep. 210, affirming 33 Fed. Rep.
See also Woodland Oil Co. v. Craw- 077. This rental was poyahle a'l-
ford, 55 Ohio St. 101; 30 Ohio nually, and not postponed to the
Wkly. L. Bull. 231 ; 44 N. E. Rep. end of the term.
1093; 34 L. R. A. 02, where it was 74 Mclntyre v. Mclnt.yre Coal Co.^
lield that the sum recoverable was 105 N. Y. 204; 11 N. E. Rep. 645.
rentals as such, and the lessor was
272 OIL AND GAS.
the part of tlie year mining ojDerations were carried on bears
to the whole year.'^ In an instance of the kind nnder discus-
sion, where the lease provided for the payment of a certain sum
j>er month as the minimum amount of royalty, even though no
coal were mined, the minimum royalty was regarded as liquida-
ted damages, and not as a penalty.'"
§244. Consideration for lease may be purchase money.
The consideration of a lease or an instrument giving a right
to take mineral, oil or gas from the premises, may not be rent
at all, but purchase money for the mineral or oil taken out of
the earth. Thus where the o^vner of land sold all the mineral
under it, granting to the vendee the right to enter on the prem-
ises and dig, explore therein, and occupy them with all necessary
structures, and mine and remove all coal, paying to the vendor
a certain ]>rice jier ton of coal removed, payable quarterly, it
was held that the stipulated price was purchase money of the
real estate, not of the mineral removed, for which the vendor
had a lien on the coal not mined and removed, the payment of
so much per ton being only n mode of determining the amount of
the purchase money to be paid.^" So a lease of all the coal in
a certain tract of land until it should all l)e mined and removed,
the consideration being tlie payment of a royalty and also an
annual minimum rental, whether coal was mined or not, and
providing for a forfeiture, was held to be a sale of the coal and
"Coaldale, etc., Co. v. Clark, 43 S.) 342; 7 W. R. 141; 33 L. T. 11;
W. Va. 84; 27 S. E. Rep. 294. Hope's Appeal (Pa.), 3 Atl. Rep.
70 Consolidated Coal Co. v. Peers, 23; 2 Cent. Rep. 43; 29 W. N. C.
150 111. 344; 37 N. E. Rep. 937. 365; Lazarus' Est., 145 Pa. St. 1;
•77 Manning v. Frazier, 96 111. 279; 29 W. N. C. 36; Hancock's Est, 7
Faircjjild v. Fairchild (Pa.). 9 Atl. Kiilp. 36; Kingsley v. Hillside Coal
Rep. 255; Duflf's Appeal, 21 W. N. Co., 144 Pa. St. 613; 29 W. N. C.
C. (Pa.) 491; Hatherton v. Brad- 368; 23 Atl. Rep. 253; Finnegan v.
bourne. 13 Sim. 599; 13 L. J. Cli. Pennsylvania Trust Co., 144 Pa.
171; 7 Jur. 1100; Taylor v. Evans, St. 613; Delaware, etc., Co. v. San-
1 H. and N. 101; 25 L. J. Exch. derson, 109 Pa. St. 583; 1 Atl. Rep.
269; Foley v. Fletcher. 3 H. and N. 394.
779: 2 L. J. E.xch. 100; 5 Jur. (N.
ke:!^ts axd royalties. 273
the rental and royalty purchase money ; but a failure to pay the
rent ended the lease."^
§245. Consideration for g^rant part of minerals, creates an ex-
ception.
It will readily he observed that when the grantor or lessor
reserves a part of the minerals, oil or gas mined or taken out of
the earth, such mineral, oil or gas thus reserved cannot be said
to be strictly " rent," within the meaning of the definition of
that term as applied to letting land generally, for it is not a
profit issuing out of tlie land, but a part of the land itself. It is
in fact neither a rent nor a resen'ation, but an exception. Tne
interest in the part resented or retained never passes out of the
lessor, but remains in him."^" Thus a wiie, and her husband
conveyed real estate in fee simple by deed, reserving by recital
to themselves, and did not convey by the deed, the equal one-
half part of the usual royalty of one-eighth of all the oil under-
lying the tract. The grantee then leased the premises, giving
the exclusive right to drill and operate for oil and gas, reserv-
ing onereighth of all the oil obtained as produced in the crude
state. It was held that the recital in the lease was a reser\'a-
tion to the gi'antee (or lessor) of onei-eighth of the oil which
had vested in him, and not of the one-sixteenth which was out-
standing in the wife. It was considered that he had not reserved
any part of the oil which was considered to be vested in the
wife.'**
§246. One well draining two tracts of land.
The o^^^lel's of two separate tracts made a joint lease of them.
The lessee drilled a well only on one tract, but this well drained
the other tract. It was held that the o^^^ler of the tract on
78 Lehigh, etc.. Co. v. Wright. 177 ^9 Harris v. Cobb, 49 W. Va. 350;
Pa. St. 387; 35 Atl. Rep. 219; Le- 38 S. E. Rep. 559; Busbey v. Rus-
high. etc., Co. V. Wilkesbarre, etc., sell, 18 Ohio Cir. Ct. Rep. 12; 10
Co., 8 Kulp. (Pa.) .540. But see Ohio C. D. 23.
Barrs v. Lea, 33 L. J. Ch. 437. so Harris v. Cobb, supra.
274 on. AND GAS.
which the well was drilled was not entitled to a royalty on all
the oil produced through the Avell, on the theory of confusion of
goods; but was entitled to an amount equal to the area his
land bore to the entire area of the two tracts.®^ Where a lessee
took a separate lease for oil on A and B tracts, which adjoined
each other, stnd then, drilling a well on tract A near the line be-
tween the two, by agi'eement of all concenied, he gave notice to
the owner of tract B on which he had drilled no well, that if the
well drilled on tract A proved to be a paying well, he would put
doAvn another one on tract B near the line as an offset; and this-
was done. It was held that he did not have to account to the
o^^mer of tract A for the oil taken from the well on tract B.^"
§247. Oral change of lease discharging or changing rents.
A written lease, after its execution, may be so modified by
parol as to discharge the lessee from all liability to pay rent
that was due imder it according to its written terms ; "'' or the
amount of the royalty may be reduced by parol. And if the
reduction be made in order to induce the lessee to remain in
possession, the reduction will l)e supported by a sufficient con-
sideration to make it binding where it is acted upon and carried
out for many years to the accejitance of all concerned, although
the lessee might have been liable for damages if he had refused
to carry out the original lease.***
§248. Failure of oil, royalty ceases.
If the oil is exhausted the royalty ceases, even tliough the en-
gagement of the lessee is to pay during the tenu a royalty on
so much oil whether produced or not. Thus where an iron
8J».Kleppner v. Lemon, 108 Pa. St. 505. See INIeeker v. Browning,
581; 48 Atl. Rep. 483. Ohio C. D. 108; 17 Ohio C. C. 548.
s2Colgan V. Forest Oil Co., 104 si Sargent v. Eobertson. 17 Inrl.
Pa. St. 234; 75 Am. St. Rep. 605; App. 411; 46 N. E. Rep. 925; Mon-
30 Pittsb. L. J. (N. S.) 213; 45 Atl. roe v. Perkins, 9 Pick. 298; Latti-
Rep. 119. more v. Harsen. 14 Johns. 330. See
83 Crawford v. Bellevup, etc. Gas Hunter v. Apollo Oil and Gas Co.
Co., 183 Pa. St. 227; 38 Atl. Hep. (Pa.). 54 Atl. Rep. 274.
EENTS AND ROYALTIES. 275
-mining lease was taken for a term of years, the lessee to mine
annually siicli quantities of ore as would produce a stipulated
sum of royalty, and if he did not mine it, pay the royalty any
way, and the ore became exhausted before the end of the term —
it was held that the obligation to pay royalty ceased with the
exhaustion of the ore.^^
§249. Rent for exhausted well, — flooded well.
So thoroughly embedded in the law pertaining to the pro-
duction of oil and gas is the idea that all liabilities and rights
must turn upon a productive field or lease, that a failure of a
gas or oil well may stop the accruing of periodical rent,
even where the express language of the lease makes no reference
to a cessure of payment in case the well should become ex-
hausted. Thus where the lease was to run twenty years, and
for each gas well a rent of five hundred dollars jx?r annum was
to he paid ; and before the end of the second year the well, with-
out fault of the o|5erators, was flooded with salt water and eeas^^d
to produce gas, it was held that the third year's rent could not
be collected, for the reason tliat there should be read into the
lease this implied agreement or understanding that the well to
be paid for at the stipulated price was not only to be a gas well
but to remain a gas well, and that when it ceased to produce gas
it ceased to be a gas well.*''
§250. Instances of lessee's liability.
A notice of an election on the part of the lessee of his determi-
nation to terminate the lease at the beginning of the next en-
suing year will not relieve him from the payment of the rent
for the current year ; and where the lease began from a certain
day, to run twenty-one years, on which day the lessee paid a
«5 Hewitt Iron Mining Co. v. Des- 346. See also Williams v. Guffey,
sail Co., 129 Mich. — ;; 80 X. W. 178 Pa. St. 342; 35 Atl. Eep. 875,
Rep. 365. See Adams v. Stage, 18 and McKnight v. ]\Ianufacturers',
Pa. Super. Ct. 308. etc.. Cxas Co.. 146 Pa. St. 185; 23
86McConnell v. Lawrence, etc.. Atl. Pvcp. 164; 28 Am. St. Rep. 790.
■Gas Co., 30 Pittsb. L. J. (X. S.)
276 OIL AND GAS.
year's rental, and on the same day one year thereafter he gave
notice of his intention to terminate the lease, it was held that he
was liable for a second year's rent, for npon that day a second
year's rent was due and the notice not having been given "until
then, he was liable for it.^^ If the lessor neglect to demand rent
for the lessee's failure to complete a well by a certain time, that
will not defeat its collection thereafter.^* Such action is not
laches. Where the lessee is to receive so much per well so long
as gas is sold oif the premises, and the lessee desires to escape on
the ground that gas has not been sold off the premises during
the period for which the action is brought to recover rent, he
must show, and he has the burden to do so, a legal excuse wdiy
gas has not been sold, to escaj^e liability.*^ If the measure of
his liability is to pay so long as the w^ells produce gas, and the
flow ceases, he will be relieved from his liability ; and if he was
to pay an annual rental, and the flow ceased during the year,
he will be liable to pay only such a portion of the yearly amount
as the time the wells produced bears to the entire year.®" A
payment of an installment or installments when not liable, will
not prevent the lessee setting np the invalidity of the lease for
installments falling due thereafter.®^ Somewhat at variance
with the case given above is an Ohio case. A lease gave the right
to ojierate for oil and gas, and if only gas was found, the lessee
should pay a fixed sum per year for each well '' while the same
is being used off the premises," but contained no stipulation in-
consistent therewith ; it was held that the lessee w^as not liable
to pay such sum for a gas well whose product was not so used,
even though it might be nsed off the premises without loss to
the lessee.""
87 Nesbit V. Godfrey, 155 Pa. St. oo Moon v. Pittsburgh, etc., Co.,
251-i^ 25 Atl. Rep. 621. 24 Ind. App. 34; 56 N. E. Rep. 108.
S8 Pittsburgh Consolidated Coal oi Diamond Plate Glass Co. v.
Co. V. Greenlee, 164 Pa. St. 549; 30 Tennell, 22 Ind. App. 132; 52 N. E.
Atl. Rep. 489. Rep. 168.
89 lams V. Carnegie, etc., Co., 194 02 Ohio Oil Co. v. Lane, 59 Ohio
Pa. St. 72; 45 Atl. Rep. 54. See St. 307; 52 N. E. Rep. 791; 40
Ohio Oil Co. V. Lane, 59 Ohio St. Wkly. L. Bull. 404; 41 Wkly L.
307; 52 N. E. Rep. 791, below. Bull. 121.
RENTS AND KOYALTIES. 27T
§251. Account rendered.
Where tlie lessee is to render to the lessor periodical accounts
of tlie amount mined, and he renders snch accounts and makes
payments based thereon, which are received without objection,
such accounts are conclusive on the lessor, in the absence of full
and satisfactory evidence of fraud and mistake. They are re-
garded in the nature of settlements."^
§252. How collected.
What kind of an action must be brought to recover rent or
royalty due will depend on the circumstances of each particular
case. Thus if the amount is dependent on the amount of oil
or mineral taken out, a bill in equity will lie to compel an ac-
counting by the lessee.'** Where a lease was for the privilege to
bore salt wells and manufacture salt, the rent being every
tAvelfth barrel manufactured ; and oil rose in the well, which the
lessee converted to his own use, claiming a right to all of it, it
was held that trover would not lie for the lessor to recover his
share, for he had never had possession of any part, of it ; but his
remedy was an action for an accounting."^ If periodical pay-
ments are to be made of fixed amounts at specified times, then
the action must be upon the covenants in the lease when it is
under seal, which would be an action of debt or covenant."" If
the lease be not under seal, or if the letting be an oral one, then
an assumpsit lies where the amount is fixed and definite."^ An
93 Sillingford v. Good, 9.5 Pa. St. 95 Kier v. Peterson, 41 Pa. St.
25; Drake v. Lacoe, 157 Pa. St. 17; 357. See National Transit Co. v.
27 Atl. Rep. 538. Weston, 121 Pa. 485; 15 Atl. Rep.
If the rent is payable in bank in 560.
cash, payment by check drawn in so Richards v. Killani, 10 Mass.
favor of lessor and deposited in the 239; Warren v. Ferdinand, 9 Allen
bank, will operate as a payment. 357; Codman v. Jenkins, 14 Mass.
Friend v. Mallory, 52 W. Va. — ; 93; Boston v. Binney, 11 Pick. 1;
43 S. E. Rep. 114. Burnham v. Roberts, 103 Mass. 379;
8* Swearingen v. Steers, 49 W. Va. Smiley v. McLauthlin, 138 Mass.
312; 38 S. E. Rep. 510; Bishop of ,363; Miller v. Blow, 68 111. 304;
Winchester v. Knight, 1 P. Wms. York v. Jones, 2 N. H. 454.
406; Clavering v. Westley, 3 P. o- wills v. Manufacturers', etc..
Wms. 402. Gas Co., 130 Pa. St. 222; 18 Atl.
278
OIL AND GAS.
allegation, in a complaint to recover payments under a lease,
that such payments were due and payable under its terms is a
sufficient allegation that the lease is still in force."^ Mere delay
in bringing an action if it is not barred by the Statute of Lim-
itations is no defense."^
§253. Lien of royalty accruing during receivership.
If royalty accrue from an insolvent mining corporation during
a receivership-, it will be a first charge on the funds in the hands
of the receiver.^""
§254. Assignment of lease does not carry oil in tank on premises.
A sale of a lease does not carry the oil pumped out and in the
tank on the premises; and parol evidence is not admissible to
show that it was intended by a sale of the lease to sell the oil
that had been pimiped from the well.^"^
Rep. 721; 5 L. R. A. 602. See
Brown v. Magorty, 156 Mass. 209;
30 N. E. Rep. 1021.
98 Central Trust Co. v. Berwind-
White Coal Co., 95 Fed. Rep. 391.
A lessor reserving a lien on " all
ore mined," for royalties, may re-
cover, in an action of tort, of the
lessee who not only fails to pay
royalties, but sells the ore with-
out reserving the lien. Iron Duke
Mine v. Braasted, 112 Mich. 79; 70
N. W. Rep. 414. .
99 Ahrns v. Chartiers Valley Gas
Co., 188 Pa. St. 249; 41 Atl. Rep.
739.
In Greenough's Appeal, 9 Pa. St.
18, it was held that distress lay for
royalty due from a coal mine. The
rent was also considered a preferred
claim. See also Oram's Estate, 5
Kulp. (Pa.) 423, and Jones v.
Strong, 5 Kulp. (Pa.) 7.
100 Allison V. Coal Creek, etc., Co.
(Tenn.), 3 Pick. 60; 9 S. W. Rep.
226.
loiMcGuire v. Wright, 18 W. Va.
507. See Dresser v. Transportation
Co., 8 W. Va. 553.
CHAPTER VIII.
WHO IWAY MAKE A LEASE.
§255. Owner of land may grant.
§250. Infants.— Lunatics.
§957 ;MarritHl women.
§258. Wife joining l.usband in lease— Homestead.
^255. Owner of land may grant.
It is elcuentavv to say that, the (.vntcr of the fee simple of a
tract of laml may give a lease to bore for gas or o.l tipon it He
mav .10 this as readily as he may sell the fee; a.d to d.seuss
the matter farther would l>e a useless act.
8256. Infants. — Lunatics.
Gas an.l ..il in land are a part of it, and an infant o^ing the
„nd has no more power over them than he has over the ee s.m,|^e
of such land. They are minerals, a part of the land. He can no
more grant a lease of the land to bore for oil or gas than he
can ™nt a lease of the land for agricultural purposes, or con-
vey Sie fee simple of it. A lease of the land for gas or o,l pur-
poses must be made by the infant's guardian, as m an instance
of a lease of an infant's lands for coal mining. In the case
of a lunatic the lease must be execute.l by his committee.- bsu-
allv the court will authorize the execution of a lease, if it be
shm™ that it would be for the benefit of the infant,' or tlie
lunatic.' Where a statute requires the court to approve a con-
\ i> Q71 3 Camden v Murrcv, Ifi Cli. Div.
iLyddal V. Clavenng, Amb. 3^1, ^^™^"" ' ] ^^ ^ T. 661;
note- Tullit v. Tullit, Amb. 3.0. 161 ; oO L. J. Ch. -«- , 4i
Stoughton's Appeal. 88 Pa. St. 108 29 W. R. 190.
2 }n re Sm7th. L. E. 10 Cb. App. parte Tabbart,. 6 Ves. 428.
70; 23 W. R. 207.
279
280 OIL AND GAS.
veyance or lease of a ward's lands by his guardian, a lease for gas
•or oil must be approved by the court, or it will be void.^ Where
a will gave seven-tenths of certain real estate to infants, subject
to a life estate, giving power to api)()int the life-tenant, it was
held that the interest of the infants was a vested one ; and that
any judicial sale under a decree to which they were not parties,
except by representation, was void. It was also held that
neither the life-tenant nor the owners of the other three-tenths
had any right to drill for gas or oil ; and the fact that the
grantee had expended large sums in developing the premises
was not sufficient to esto]> the infant remaindermen from en-
joining the purchaser or his grantee from taking oil or gas from
the land. N^or was the fact, that they had not made themselves
parties to the suit, or that they knew other claimants to the land
had been bought off, sufficient to estop them.** Of course an in-
fant's conveyance or lease is voidable, and not void;' and tlu'
same is true of an insane jjerson not adjudged insane and under
guardianship.® But a sale by the guardian, in case of insanity,
without the approval of the court, where a statute requires an
approval, is void, not voidable ; and this is tnie of a guardian's
lease of such land for oil purjx)ses.^ A father cannot sell his
children's land nor the mineral in it; and if he sell the land,
although he give his children other lands in the lieu of those
sold, the title of the land still remains vested in them, and they
may recover from the purchaser the value of the minerals
mined. ^°
§257. Married women.
A married womau can no more give a lease of her lands for
gas, oil or mining purposes without her husband joining her
5 Stou_iohton's Appeal, supra. s Riggan v. Green, 80 N. C. 23G ;
, G Williamson v. Jones, 39 W. Va. Grouse v. Holdman, 19 Ind. 30.
231; 19 S. E. 436; 25 L. R. A. 222; o South Penn. Oil Go. v. Mclntiro,
Williamson v. Jones, 43 W. Va. 44 W. Va. 29G; 28 S. E. Rep. 922;
562; 27 S. E. Rep. 411; 38 L. R. A. Stoughton's Appeal. 88 Pa. St. 198.
094. I'' Keyes v. Pittsburgh, etc., Co.,
TEngleberth v. Troxell, 40 Neb. 58 Ohio St. 246; 50 N. E. Rep. 911;
195; 58 N. W. Rop. 852; Gole v. 41 L. R. A. 681.
Pennoyer, 14 111. 158.
WHO MAY MAKE A LEASE. 281
than she can convey such lands without her husband joining in
the conveyance. In the case of a deed, the separate deed of tlio
wife is void; ^^ and to make conveyance of her land valid her
husband must join with her in the deed of conveyance ; the title
cannot be conveyed by their separate deeds. ^' The deed must
conform Avith the law of the State where the land lies or it will
be void." The same rules apply to a married woman execut-
ing a lease on her lands for oil or gas purposes. Thus where all
the disabilities of a married woman were canceled by a statute,
it being provided that " all the rents, issues, income and profits "
of her real estate should " be and remain her own separate
])roperty, under her control, the same as if she were unmar-
ried " ; but it was also provided that a married woman should
have no power to convey or encumber her property without her
husband joined her in the deed of conveyance or in the instru-
ment placing an incumbrance on her land, it was held that her
contract conveying all the oil or gas on a certain named tract of
land, and giving the right to enter on the premises at all times
for tlie purpose of drilling and oj^erating for oil or gas, and to
erect and maintain all necessary structures, and lay all pipes
necessary for the production and transportation of oil and gas
taken from the premises, was void. This lease was void, because
the husband of the owner had not joined her in its execution.
■" While oil and gas," said tlie court, " remain in the earth with-
in their natural reservoirs or pockets they are parts of the realty
itself as much as are stone, coal, lead or iron or any other solid
or suKstantive mineral, and the sale of the real estate carries
with it the ownership to all that lies beneath the soil, which, in
case it be stone, coal, lead or iron, vests in the purchaser the
absolute ownership therein, while, if there is water, oil or gas
in or on the land the purchaser's OA\mership is absolute so long
as it remains in or on his land, but when it escapes therefrom
11 Kinnaman V. Pyle, 44 Ind. 275; isStull v. Harris, 51 Ark. 294 ; 11
Mettler v. Miller, 129 111. 630; 22 S. W. Rep. 104.
N. E. Rep. 529; Central Land Co. i-5 Glidden v. Simpler, 52 Pa. St.
V. Laidley. 32 W. Va. 134; 9 S. E. 400; Central Land Co. v. Laidley,
Rep. 61; White v. Wager, 25 N. Y. supra; Leftwieh v. Neal, 7 W. Va.
328; Winans v. Peebles, 32 N. Y. 569.
423.
282 OIL AND GAS.
it is lost. In this view of the case, if the ii})pellee could sell
the gas or oil which might be found in or under her real estate
without her husband joining with her, she could also sell tlie
stone, coal, lead and iron which might be found there, < r even
the soil itself, thus, if not parting with, in fact destroying, tlu'
real estate itself. But if we were to hold the gas and oil found
beneath the soil is not a part of the land itself the result in this
case must be the same, for under the terms of this contract the
appellant had the right to go upon the premises not only to sink
gas and oil wells, but also to erect and maintain thereon ' all
buildings and structures and lay all pipes necessary for the pro-
duction and transportation of oil taken from said premises.'
These rights are of necessity exclusive in their nature and would
vest in the appellant rights in the property or real estate itself^
and, if valid, might be enforced to the exclusion of the appellee.
The statute especially withholds from married women the right
in any manner to encumber or convey away their separate real
estate except their husbands join with them." It was further
held, that inasmuch as her lease was void, slie could not encum-
ber it against her lessee, the lease binding neither the lessor nor
the lessee.^* In that State an ordinary lease of agricultural
lands, for the purpose of cultivation, although carrying an in-
terest in land, has been held not to fall witliin the inhibition of
the statute quoted above.^^ And in a case by the Supreme Court
of th^^t State, decided after the case was decided by the Appel-
late Court of the same State from which the quotation above was
made,^*' it was held that a married woman could execute, witli-
out her husband joining, a lease on her land for the purpose of
operating on it a gas or oil well, it not being an encumbrance or
conveyance of the land within the meaning of the statute pro-
hibiting a married woman incumbering or conveying her land
1* Columbian Oil Co. v. Blake, 13 the amount involved, and in rare
Ind. App. 680; 42 N. E. Rep. 234. instances an appeal lies from the
15 Pearcy v. Henley, 82 Ind. 129; Appellate to the Supreme Court.
Nash V. Berkmeir, 83 Ind. 536. See The former is bound by the law as
Indianapolis v. Kingsbury, 101 Ind. declared by the latter, whether
200; 51 Am. Rep. 749. there is an appeal from one court
10 The jurisdiction of the two to the other or not.
courts depends, in civil cases, upon
WHO MAY MAKE A LEASE.
283
without her husband joining in tlie execution of the instrument
of conveyance or incumbrance. " Leases of the dxaraeter of
the present," said the court, '' differ from the ordinary agricul-
tural lease, in that the former may carry a substantial and en-
during interest in the freehold, while the latter vests but a tran-
sient and temporaiy interest, that of raising and removing crops.
The fonner, however, in their primary effect, part with no im-
mediate title or estate, and carry but right of exploration, any
title or estate which may be contemplated remaining inchoate
and of no effect until the oil or gas is found." For the purposes
of prospecting, such leases involve a mere use, and part with no
greater interest in the freehold than the ordinary agricultural
lease. We have here no question of the effect of the instru-
ment of ^[rs. Swain to carry a freehold estate, the question being
as to the validity of tlie lease to the appellees in vesting the ex-
clusive right of prospecting or operating for gas and oil. For
such purposes we do not doubt the power of Mrs. Swain to lease
without her husband joining." '^ It will be observed that the
temis of the two leases drawn in question were different; and on
this difference the eases may be reconciled. Where husband
and wife owned lands as tenants in common, and the lessee, sup-
posing that the husband o^^^^ed the entire interest in tliem, took
a lease of them, wherein he was to pay a certain rent or complete
certain work by a fixed date, or rent where no operations were
begim, and none were begun ; and after the demand for rent the
lessee ascertained that the wife had an interest in the premises,
and he then demanded that the wife should join in the lease, to
which the lessor assented, but he never secured his wife's signa-
ture ; and the wife was present during all the negotiations for
the lease, but never then or afterwards made objection ; it was
held that the lessee must pay the full amount of the rent.^''
17 Citing Venture Oil Co. v. lo Kunkle v. People's, etc., Gas
Fretts 152 Pa. St. 451; 25 All. Co., 165 Pa. St. 133; 30 All. Rep.
j^ep, 732. 719; 35 W. N. C. 465. See Sim-
is Heal V. Niagara Oil Co., 150 mons v. Buckeye Supply Co., 21
Ind. 483; 50 N. E. Rep. 482. Ohio Cir. Ct. Rep. 455; 11 Ohio C.
D. 690.
284r OIL AND GAS.
§258. Wife joining husband in lease — homestead.
A wife should join her husband in a lease of his lands ; for
upon his death, if she did not join him in its execution, she could
assert her marital rights, to the probable injury of an existing
lease on the land. So if a lease is made of the homestead, she
should join in its execution, not only for the reason given, but
for the reason that in those States requiring her consent to the
transfer or encumbrance of the homestead to make the transfer
or encumbrance valid the same consent is required in granting a
lease for mining or oil pur]X)6es. Thus a lease of a homestead
where such a statute prevails, granting the privilege for gas, oil,
and other minerals at the lessee's pleasiire, and to erect all
derricks, engine houses, and buildings necessary in mining, ex-
cavating mines, and piping oil and gas, is such an alienation as
to require the wife's signature, and if she does not sign it, the
lease is void.'*' They must join in the same instrument, and
cannot sign separate instruments so as to bind the land or either
of them."^ A power of attorney authorizing a sale of the prem-
ises must be executed in the same way."^
20 Frantlin Land Co. v. \Yea Gas donment of a homestead leased for
and Coal Co., 4.3 Kan. 518; 23 Pac. gas, where husband and wife remove
Rep. 630 ; Palmer Oil and Gas Co. from it, because of its undesirabil-
V. Parish, 61 Kan. 311; 59 Pac. ity as a residence. See Palmer Oil
Rep. 640. See Pilcher v. Atchison, and Gas Co. v. Parish, supra.
etc., Ry. Co., 38 Kan. 516; 16 Pac. In Texas, where property was
Rep. 945; Evans v. Grand Rapids. held as community property, and
etc., Ry., 68 Mich. 602; 36 N. W. the lessor's husband represented to
Rep. 687. the defendants he would extend the
21 Ott v. Spragxie, 27 Kan. 620; time, and, on the faith of such rcp-
Wallaee v. Travelers' Ins. Co.. 54 resentation, the defendants went on
Kan. 442; 38 Pac. Rep. 489; Gage to expend moneys and carry out
V. Wheeler, 129 111. 197; 21 N. E. their part of the contract, the les-
Rep. 1075. sor was held boimd by such waiver.
22 Wallace v. Travelers' Ins. Co., Preside Mining Co. v. Bullis (Tex.),
supra. 4 S. W. Rep. 860.
As to what will not be an aban-
CHAPTER IX.
TENANTS FOR YEARS.
§259. May work open mines.
§260. When may open new mines.
§259. May work open mines.
Unless restricted by the terais of his lease, a tenant for years
may work mines opened at the time his lease was granted ; but
he may not open new mines.^ And if an owner of land upon
which there is a mine opened, make a general lease of it, without
any reference to the mine, the lessee has a right to work the
mine for he has a lease of all the land, and it is intended that
his interest is as general as his lease."
§260. When may open new mines.
But the terms of the lease, though for years, may be such as
to exclude the right to mine ; or it may be such as to authorize
the lessee to open new mines. Thus a demise for agricultural
purposes only is sudi a limitation as to exclude the right of the
lessee to take out stones from a quarry on .the premises, although
open at the time of tlie lease.^ And where the lease contained
the following clause : " To have and to hold the above granted
and demised premises, with every privilege, right and appurte-
nance whatsoever, to the said premises belonging or in any wise
appertaining, whether ways, waters, water courses, mines, and
1 Harlow v. Lake Superior, etc., ~ Owings v. Emery. 6 Gill. 260.
Co., 36 :Mich. 105; Shaw v. Wallace, 3 Freer v. Stotenbur. 2 Keyes 467 ;
25 N. J. L. 455; Kier v. Peterson, 2 Abb. Dec. 189; reversirg 36 Barb.
41 Pa. St. 361; Pennsylvania Salt 641.
Co. V. Xeel, 54 Pa. St. 9; Guffin v.
Fellows, SlVa Pa. St. 114.
285
286 OIL AND GAS.
minerals of whatever description," it was held that he was en-
titled to open and work new mines. If there be a lease of land
with the mines in it," said the court, " and there he no open
mines, the lessee may dig for mines, otherwise the grant as to
mines will not take effect," * If the land he leased for coal min-
ing purposes, of course the lessee may open new mines and take
out coal.^
* Griffin v. Fellows, Sly. Pa. St. Qartside v. Outley, 58 111. 210;
114; contra, Harlow v. Lake Su- Franklin Land Co. v. Wea Gas and
perior, etc., Co., supra. Coal Co., 43 Kan. 518; 23 Pac. Rep.
eHeil v. Strong, 44 Pa. St. 264; 630.
CHAPTER X.
TENANCIES FOR LIFE.-DOWER.
§261. May work mines or oil wells already open.
§262. Rule concerning life tenants applies to oil leases.
§263. May not open new mines or bore new wells.
•§264. Curtesy estate of husband.
§265. When mines may be opened or wells bored.
§266. Mineral lands unfit for any other purposes than mining.
§267. Reversioner or remainderman opening wells.
§268. Life-tenant must account for waste.
§269. Title to mineral or oil severed.
§270. Destruction of cot-pus of the estate.
§271. Oil or gas may be exhausted. ,
§272. Estoppel of remainderman.
§273. Assignment of dower in mines.
^261. May work mines or oil wells already open.
In an instance of ooal ami the like minerals, a tenant for
life may work mine.s already opened, even to their exhaustion,
carrying on the mining skillfully so as not to injure the inheri-
tance; and he may even sink new shafts or wells to the vein
already open. This is also true of a widow's dower. She has
the right to work mines that were open at her husband's death,
which have been assigned to her.^ And the life tenant may
iLemfer v. Henke, 73 111. 405; Eq. 86; Coates v. Cheever, 1 Cow.
Priddy v. Griffith. 150 111. 560; 37 460; Rutland v. Gie, 1 Sid. ir2
N. E. Rep. 999; Hendrix v. McBeth, 1 Lev. 107; Neel v. Neel, 19 Pa. St
61 Ind. 473; Elias v. Snowdon State 323; Brooks v. Hanna, 19 Ohio C
Co.. 1.. R. 4 App. Cas. 454; Moore Ct. Rep. 216; 10 Ohio Dec. 480
v. Rollins, 45 Me. 493; Billings v. Irwin v. Covode, 24 Pa. St. 163
Taylor, 10 Pick. 460; Kier v. Peter- Lynn's Appeal, 31 Pa. St. 44; West
son, 41 Pa. St. 361; Seager v. JNIc- moreland Co.'s Appeal, 85 Pa. St
Cabe, 92 Mich. 186; 52 N. W. Rep. 344; Eley's Appeal, 103 Pa. St. 300
299; Campbell v. Wardlow, L. R. Sayers v. Hoskinson, 110 Pa. St
8 App. Cas. 641; Reed v. Reed, 16 473; 1 Atl. Rep. 308; Fairchild v
N. J. Eq. 248 ; Gaines V. Mining Co., Fairchild (Pa.), 9 Atl. Rep. 255
33 N. J. Eq. 603, reversing 32 N. J. Woodburn's Est., 138 Pa. St. 606;
287
288 OIL AND GAS.
even penetrate through a seam already ojjen to a new seam
lying nnderneath the one jDenetrated.' And if the owner of an
entire estate lease them for mining operations, and die, his
widow is entitled to the royalty of a mine tliereafter opened on
the portion assigned to her under such lease, it being considered
that the mine was practically opened at the owner's death.' The
life tenant may work mines once opened, although they have not
been worked for many years before he acquired his life estate ;
but abandonment of the mine, for a day even, with the intention
to devote the land to other purposes, will be fatal to the
tenant.* It is immaterial how the life estate has been created.^
And if a life estate he given in lands upon which mines are
already leased, the life tenant will be entitled to the royalties
accruing under the le^se.®
^'262. Rule concerning life tenant applies to oil leases.
The rule concerning the right of a life tenant to open new
mines or work old ones applies to oil or gas wells upon the life
estate. Thus where oil wells had been sunk, in the testator's
life, under a lease, and one was being sunk when he died, it was
held that the life-tenant was entitled to the royalties under the
lease." But if no well has been sunk in the land owner's life
time, his life-tenant cannot sink an oil well, nor lease the land ;
21 Atl. Rep. 16; Clift v. Clift. 6 Shoemaker's Appeal. 106 Pa. St.
3 Pickle (Tenn.) 17; 9 S. W. Rep. 392; Jones v. Strong, 5 Kulp. 7.
360; Findlay t. Smith, 6 Mumf. The rule that the de^asee of a life
134; 8 Am. Dec. 733. See Gannon estate is entitled to work a mine
V. Petterson. 193 111. 372; 62 X. E. already opened does not apply where
Rep. 210. there is no life estate, but a dis-
2 Crouch V. Puryear. 1 Rand. 258. tribution of income in one propor-
3 Priddy v. GrifiBth. 150 111. 560; tion. and the corpus in another pro-
37 X. E. Rep. 999. portion. In such a ease the royalty
4 Gaines v. Green Pond Iron Min- of a coal lease is part of the princi-
ing Co., 33 X. .J. Eq. 603, reversing pal, and is not income. Brooks v.
32 X. J. Eq. 86. See Bogot v. Bo- Hanna, 19 Ohio C. Ct. Rep. 216;
got. 32 Beav. 509; Stoughton v. 10 Ohio Dec. 480.
Leisrh. 1 Taunt. 410; Bartlett v. t Woodburn's Estate. 138 Pa. St.
Phillips. 4 De G. and J. 414; Viner 60fi: 21 Atl. Rep. 16; Koen v. Bart-
V. Vaughan. 2 Beav. 466. lett. 41 W. Va. 559: 23 S. E. Rep.
5Neel V. Xeel, 19 Pa. St. 323. 664; 31 L. R. A. 128.
TENANCIES FOE LIFE. DOWER. 2S9
and if he do lease it, he cannot recover the rent under the lease.^
The life-tenant cannot justify his conduct in boring oil or gas
wells by claiming tliat if he did not take out the oil or gas the
neighboring land owners will drain the land ; for the oil or gas
belongs to tlie remainderman.® Where the o^vner of land, after
leasing it for mining of oil and gas, conveyed it to his children,
reserving to himself a life estate in it, it was held that he was
entitled to the royalties imder the lease.'"
§263. May not open new mines or bore new wells.
A' life tenant may not ojien new mines uix)n the life estate;
for him to do so is waste ;" even though, as in ease of oil, it be
necessan' to secure it where adjoining land owners have opened
wells on their ovra lands, and the effect is to draw the oil from
the land in which the life estate exists.'" If a stranger dig and
carry away coal from land in possession of a life tenant, upon
which no mine has been ojx^ned, the remainderman must bring
the action to recover damages.'^
§264. Curtesy estate of husband.
The right of a husband to royalties in his wife's land by
reason of the estate in curtesy he holds, is the same as her dower
8 Marshall v. Mellon. 179 Pa. St. HarTios.^. 42 W. Va. 433; 26 S. E.
371; 36 Atl. Rep. 201; 27 Pittsb. Rep. 271.
L.J. (X. S.) 214; 35 L. R. A. 816; lo Koen v. Bartlett. 41 W. Va.
67 Am. St. Rep. 601; Gerkins v. 559; 23 S. E. Rep. 664; 31 L. R.
Kentucky Salt Co., 100 Ky. 734; A. 128.
39 S. W. Rep. 444; Gerkins v. Ken- n Priddy v. Griffiths. 150 111. 560;
tueky Salt Co. (Ky.), 36 S. W. Rep. 37 X. E. Rep. 999; Coates v. Chee-
1; Kenton Gas, etc., Co. v. Dorney, ver, 1 Cow. 460; Whitfield v. Bewit,
17 Ohio Cir. Ct. Rep. 101; 9 Oliio 2 P. Wms. 240; Clavcring v. Claver-
C. Dec. 694; Findlay v. Smith, 6 ing. 2 P. Wm.«. 388: Hook v. Gar-
Munf. 134; 8 Am. Dec. 733 (salt field Coal Co., 112 la. 210: 83 N. W.
wells). See Wilson v. Youst, 43 W. Rep. 963.
Va. 826; 28 S. E. Rep. 781. 12 Blakeley v. Marshall. 174 Pa.
9 Blakeley v. ^Marshall. 174 Pa. St. St. 425; 34 Atl. Rep. 564; 38 W. N.
425; 34 Atl. Rep. 564; 38 W. X. C. 74; Marshall v. Mellon. 179 Pa.
C. 74; Williamson v. Jones. 43 W. St. 371; 36 Atl. Rep. 201; 35 L. R.
Va. 562; 27 S. E. Rep. 411; 38 L. A. 816.
R. A. 694; Childeers v. Xeely. 47 i3 Franklin Coal Co. v. McMillan,
W. Va. 70: 34 S. E. Rep. 828: 49 49 Md. 549. Marshall v. :\rellon.
L. R. A. 468. See also Bettman v. sup)-a.
290 OIL AND GAS.
right in his lands/'* A tenant by curtesy cannot convey the
right to a lease to extract oil from the land. Such a lease or
grant is void.^"
§265. When mines may be opened or wells bored.
There are circumstances under which a mine may be oixined
or a well dug, for the benefit of the life-tenant. These arise
by reason of some act of the original owner. Thus where ex-
ecutors, under a jwwer conferred by the will of their testator,
executed a coal lease on the testator's land, it was held that the
royalties received were income, distributable as such, and not
as a part of the corjms of the estate. And it was also held tliat
where the chief or sole value of lands is for coal mining, and
the only profit to be derived from them is by sale or lease of the
coal, which the executors may do, as they see fit, the executor
may claim the royalties of a lease they make as income of the
estate.^^ The royalties, of course, eventually went to the life-
tenants.^' Where land was valuable only as coal land, and the
executors were to collect and give all the income of the estate
to the testator's wife, and were given power to sell or lease the
lands, as they thought best, it was held that the power to " lease "
gave them power to lease the land for mining purjwses, although
no mine had ever been opened on them; and that the rental
arising from such a lease went to the life-tenant as income.^*
Where a testator bequeathed one-half of his residuaiy estate to
his daughter, and directed the rest to be invested for her use
14 Alderson v. Alderson, 46 W. Va. as personal property, was not profits
242; 33 S. E. Rep. 228; Stoughton of the real estate, and was not the
V. Leigh, 1 Taunt. 410; 2 Inst. 299; subject of curtesy. Fairchild v.
Sampson v. Grogan, 21 R. I. 174; Fairchild (Pa.) ; 9 Atl. Rep. 25.5.
■42 Atl. Rep. 712; 44 L. R. A. 711. is Barnsdall v. Boley, 119 Fed.
Where- there had been a demise of Rep. 191.
all the coal under the surface of i*^ Reynolds v. Hanna, 5.") Fed.
a certain described tract of land, it Rep. 783. See Rankin's Appeal, 1
was held to be a sale of the coal, Mong. 308 (Pa.), 2 L. R. A. 429.
and the amounts due from the lessee it Eley's Appeal, 103 Pa. St. 300
to the lessor as royalties were not (a like case) ; McClintock v. Dana,
rents, but tlie purchase money of 106 Pa. St. 386; Shoemaker's Ap-
ical estate. Such royalty was held peal, 106 Pa. St. 392.
to be collectible by the legal rep- is Wentz's Appeal, 106 Pa. St.
resentatives of the deceased owner 301.
TENANCIES FOR LIFE. DOWER. 291
during life, giving to his executors power " to sell and convert
my estate into money, or to lease my coal interest," and to invest
the proceeds of the coal lands so as produce a permanent revenue,
the income from which was to be paid to the daughter ; and after
making his will he leased the land, receiving a royalty for the
lease, it was held as this royalty was a part of the residuary
estate one-half of it went to the daughter, and the other half
must be invested for her use.^"'* So where 'husband and wife
conveyed unopened coal lands to trustees, with power to " con-
trol, lease, demise, and to mine-let " such lands, and to collect
and pay over to the wife the income from the same, with re-
mainder over, it was held that at his death the trustees could
grant a lease of the lands, and the income from the lease was
payable to tlie wife.'*' So where the 0A\mer of land having on it
a salt well provided by his will as follows : " During the life of
my wife it is my intention and request that A, B and her do
carry on my business in partnership, both salt works and mer-
diandising, equal shares ; and that in consideration of the use cf
my capital they pay out " certain named legacies, it was held
that the life-tenants might sink new salt wells, even to the ex-
haustion of the salt veins ; and that they had the right of wood,
from the testator's wood land in an unlimited amount, to carry
on the works which he had used for that pui-pose in his life
time."^
§266. Mineral lands unfit for any other purposes than mining.
The rule tJiat a life-tenant may not open a mine and work
it u|X)n the life estate, has been denied in cases where the lands
were only fit for mining purposes.'" And it has Ix^en held that
the rule not permitting a life-tenant to open new mines has no
application to this country."^
19 Jones V. strong. 5 Kulp. 7. 23 Seager v. McCabe, 92 :Mioh.
20 Bedford's Appeal, 126 Pa. St. 186; 52 N. W. Rep. 299; 16 L. R. A.
117; 17 Atl. Rep. 538. 247. Tliis was a statutory life es-
2iFindlay V. Smith, 6 Munf. 134; tate. See St. Paul Trust Co. v.
8 Am. Dec. 733. Mintzer. 65 Minn. 124; 67 N. W.
22Wentz's Appeal. 106 Pa. St. Rep. 657; 32 L. R. A. 756; Wilkin-
301; Reynolds v. Hanna. 55 Fed. son v. Wilkinson. 59 Wis. 557; 18
Ren. 783. X. W. Rep. 528; Melms v. Pabst
292 on. AND GAS.
§267. Reversioner or remainderman opening wells.
The right of possession of land is in the life-tenant. The
reversioner or remaindennan has no right of ]>ossession as long
as the life tenancy is in existence. Tie, therefore, has no right,
witJioiit the consent of the life-tenant, to enter on the premise:-,
to sink oil or gas AV(dls; and if he do, without such consent, th ^
product of the wells will l)elong to the life-tenant, who may
thereafter \vork them. By the severance of the oil or gas from
the soil they become ])rofits arising from the land ; and as all
profits belong to the lifortenant, he is entitled to take such oil
or gas.'*
§268. Life-tenant must account for waste.
Inasmuch as the o|x?ning of mines or boring of oil and gas
wells, and taking their product by the life-tenant from the soil
is a waste, such tenant nnist account to the remaindenuen, not
on the basis of an annual rental l)ut on the basis of rents and
profits. And if there be several of the remaindermen, each i.^
entitled to his share. And if the tenant for life is one of three
tenants in the remainder, and he ousts his co-tenants in such
remainder, claiming the entire title, he, having notice of their
title, is not entitled to compensation for improvements he has
made upon the land, under a statute allowing compensation to
those who make improvements on land, under the belief that
they have a good title. In such an instance when the remain-
dermen call for an accounting they must allow the life-tenant all
the costs of production, Avhich includes the cost of boring the
well.'^
Brtwing Co., 104 Wis. 7; 79 N. W. 25 Williamson v. Jones. 43 W. Va.
Rep. 738, and Disher v. Disher. 45 562; 27 S. E. Rep. 411; 38 L. K. A.
Neb. 100; 63 N. W. Rep. 368, which 694. See Williams v. Bolton. 3 P.
are other instances of statutory life Wms. 268; 1 Cox. Ch. Cas. 72; Fos-
estates, but not cases involving ter v. Weaver, 118 Pa. St. 42; 12
mines. Atl. Rep. 313; Ward v. Wnrd. 40
24Koen V. Bartlett. 41 W. Va. W. Va. 611; 21 S. E. Rep. 746; 20
559; 23 S. E. Rep. 664; 31 L. R. A. L. R. A. 449; Effinger v. Hall. 81
128. Va. 94.
TEXAXCIES FOR LIFE. DOWER, 293
§269. Title to mineral or oil severed.
If the lilVtenant open mines or bore oil or gas wells without
right, the mineral, oil or gas taken out will belong to the re-
maindermen, the title thereto being in him."*^ By the sever-
ance they become personal property ; and the remaindennen may
j'e])levin them from whomever may come into possession of
them.^^
§270. Destruction of corpus of the estate.
The life-tenant has no right to destroy the corpus of the
estate. Such is the case, as w'e have seen, where he opens new
mines or bores new oil or gas wells ; and what he may not do
directly, he cannot do indirectly, as by giving the right to others
by the way of lease or otherwise. And if he give a lease on
undeveloped territorv^ he cannot collect the rent or royalty ; for
that belongs to the reversioner or remaindermen.^*
§271. Oil or gas may be exhausted.
Xo limitation can be placed upon the right of a life-tenant
to use gas or oil wells, or mines, already bored or open ; and the
same is true if he had the right to bore wells or open mines.
He may exliaust the oil or gas in the entire tract of land subject
to the life estate, or all the ore that can be foimd in the mine;
and the reversioner or remainderman cannot complain, although
26 Williamson v. Jones, 4.3 W. Va. tucky Salt Co., .36 S. W. Rep. 1 ;
562; 27 S. E. Rep. 411; 38 L. R. A. Kenton Gas, etc., Co. v. Dorney, 17
694. Ohio Cir. Ct. Rep. 101; 9 Ohio C.
27 Omaha, etc., Co. v. Tabor, 13 Dec. 604; Woodburn's Est., 138 Pa.
Colo. 41; 21 Pac. Rep .925; Hughes St. 606; 21 Atl. Rep. 16; Koen v.
V. United Pipe Lines, 119 X. Y. Bartlett, 41 W. Va. 559; 23 S. E.
423; 23 N. E. Rep. 1042. Rep. 664; 31 L. R. A. 128; Blakeley
28 Marshall V. Mellon. 179 Pa. St. v. Marshall, 174 Pa. St. 425; 34
371; 27 Pittsb. L. J. (N. S.) 214; Atl. Rep. 564; 38 W. N. C. 74; Wil-
36 Atl. Rep. 201; 57 Am. St. Rep. liamson v. Jones, 43 W. Va. 562; 27
601; .36 L. R. A. 816; Gerkins v. S. W. Rep. 411; 38 L. R. A. 694;
Kentucky Salt Co., 100 Ky. 734; 39 Childers v. Xeely, 47 W. Va. 70;
S. W. Rep. 444; Gerkins v. Ken- 34 S. E. Rep. 828; 49 L. R. A. 468.
294 OIL AND GAS.
thereby the land may be rendered practically worthless.^" Xor
is tlie life-tenant confined to the exact method pursued by the
original grantor. Thus if such original owner used the gas or
oil for his own use only, that does not prevent the life-tenant
selling the gas or oil he pumps out.^°
§272, Estoppel of remainderman.
In rare instances a remainderman may be estopped in an at-
tempt to restrain the taking of ore, gas or oil from the land in
which he has a remainder. An instance arose in Kentucky,
where the life-tenant gave a lease to bore for oil and gas upon
land not theretofore developed. The lessee under this lease
drilled a well at great expense, with the knowledge of some of
the remaindermen, who would not be benefited by having the
well closed. ' It was held that the lessee was entitled to be com-
pensated for his improvements, that he might continue to work
under the lease, but must pay the remaindermen a fair royalty
for all salt w^ater he took out after they had brought their action
to restrain him.^^
§273. Assignment of dower in mines.
In assigniing dower tliere should be taken into consideration
the value of the mines so far as opened during the husband's
life, and the admeasures may, in their discretion assign the
doAver in lands by metes and bounds containing the mines or
not, by directing a separate alternate enjoyment of the whole for
periods proportioned to the share of the parties, or by giving
the widow a part of the profits. But there can be no account
taken of the mines opened since the death of the husband by his
alienee, nor of the improvements made therein by such alienee.^'
29Koen V. Bartlett, 41 W. Va. 3i Gerkins v. Kentucky Salt Co.,
559*'; 23 S. E. Rep. 664; 31 L. R. A. 100 Ky. 734; 39 S. W. Rep. 444;
128; Shoemaker's Appeal, 106 Pa. Gerkins v. Kentucky Salt Co., 36 S.
St. 392; Sayers v. Hoskinson, 110 W. Rep. 1.
Pa. St. 473; 1 Atl. Rep. 308; Ran- 32 Coates v. Cheever, 1 Cow. 460.
kin's Appeal, 1 Mongahan {Fa..) See Dicken v. Hamer, 1 Drew and
308; 2 L. R. A. 429. Sm. 284; 39 L. J. Ch. 778; 2 L. T.
30Neel V. Neel, 19 Pa. St. 323; 276; Stoughton v. Leigh, 1 Taunt.
Irwin V. Covode, 24 Pa. St. 162; 402, 410.
Holman's Appeal. 24 Pa. St. 174.
TEXAXCIES FOR LIFE. DOWER. 295
^' It is not necessary," says a standard English authority, " that
the widow shoiikl have a third or other proportion of each part
of the estate ; and if, therefore, the husband be possessed of
divers mines, the sheriff may assign such a number of them as
will amount to one-third in value of the whole ;^^ and, in fact,
the sheriff need not assign to her any mines at all — scil, be^
cause the widow's part may consist wholly of surface lands set
out by metes and bounds ; or the sheriff may divide the profits
of the mines between the parties, by directing, for example, the
alternate enjoyment of the mines, or by giving the widow a part
of the profits — especially where the mines are in the hands
of the other persons." ^* In a New Jersey case it was said :
"' The only question that can arise will be in regard to the mode
of assignment, whether by metes and bounds or by a share of
the profits. That course will be adopted which will be most
favorable to the widow, and which will most effectually secure
the enjoyment of her rights There can be no difficulty in taking
an aecoimt of the profit. It appears from the answer that the
clay banks have been worked in connection with the farm, thus
the profits of the clay may be ascertained as well as of any other
part of the property. Working banks is a mere mode of enjoy-
ment." ''
33 Citing Stoughton v. Leigh, su- p. 30, citing Stoughton v. Leigh,
pra. supra.
3* Bainbridge on Mines (5th ed.), '5 Rockwell v. Morgan, 2 Beas,
(N. J.) Ch. 384.
CHAPTER XI.
CO-TENANTS.
§274. One co-tenant may operate land of co-tenancy for oil or gas.
§275. Lease or license granted by co-tenant.
§276. Partition of mines or mineral lands.
§277. Partition of oil or gas lands.
§278. Accounting between co-tenants.
§279. Accounting when tenant excludes co-tenant.
§280. Owner of surface not co-tenant witli owner of mineral beneath
surface.
§281. Purchase by tenant of co-tenant's interest.
§282. Equity jurisdiction of an accounting.
§283. Expense of working joint property.
§284. When a tenant bound by co-tenant's act.
§285. Injunction.
§286. Surrender of lease by co-tenant.
§287. Payment of rent or royalties.
§288. Fidelity relation between members of a mining partnership.
§274. One co-tenant may operate land of co-tenancy for oil or
gas.
One cotenant of land has the right himself to operate the
land for oil or gas without the consent of his co-tenant; and
this includes, of course, the right to sink wells and erect plants
for that purjxise. His felloAv tenant cannot prevent his operat-
ing the joint property, by refusing to join him in the enter-
prise. This is true of coal or other ore lands ;^ and the same
is true of oil or gas lands."
1 Coleman's Appeal, 62 Pa. St. Grubb's Appeal. 66 Pa. St. 117;
252, affirming 1 Pearson 470 ; Clow- Grubb v. Grubb. 74 Pa. St. 25;
ser V. Joplin Mining Co., reported Grubb's Appeal. 90 Pa. St. 228;
in note to Bly v. United States, 4 Fulmer's Appeal, 128 Pa. St. 24; 18
dTiI. 469; Marsh v. Holley, 42 Conn. Atl. Rep. 493 ; coHfro, Childs v. Kan-
453; Huff v. McDonald, 22 Ga. 131; sas City, etc., Co., 117 Mo. 414; 23
McCord V. Mining Co., 64 Cal. 134 ; S. W. Rep. 373 ; Murray v. Haverty,
Watson V. U. R. and G. Gravel Co., 70 111. 318; Hook v. Garfield Coal
50 Mo. App: 635 ; Kahn V. Old Tele- Co., 112 la. 210; 83 N. \Y. Rep.
graph Mining Co., 2 Utah 13; Blew- 963.
ett V. Coleman, 40 Pa. St. 45; Cole- 2 Williamson v. Jones. 39 W. Va.
man v. Blewett, 43 Pa. S.. 170; 231; 19 S. E. Rep. 436; 25 L. R.
296
CO-TEXAXTS. 297
§275. Lease or license granted by co-tenant.
One co-tenant may grant a license or lease tO' dig in the joint
property, but the right extends only to his interest f and if he
takes ont ore he must account to the other oo-tenant for the
value of his share of tlie mineral taken out, less the expense of
digging and removing it from the mines.* The tenant not join-
ing in the license or lease is not bound to accept his share of the
royalty reserved, but may insist upon an accounting by the
licensee or lessee according to the rule just stated.^ The licensee
or lessee of one tenant cannot be considered a trespasser as to the
other tenant; for he simply succeeds to tlie right of possession
in his licensor or lessor, who had a right of possession equal to
iliaf of his fellow tenant. Exclusion by the licensee or lessee of
the other tenant might destroy his rights, in which event such
licensee or lessee would not be required to account."
§276. Partition of mines or mineral lands.
In a case of an attempted partition of a mine, Justice Brewer
used the following language: " The mere fact of joint o^vner-
ship in a mine does not give an equitable right to a partition.
Seldom can a division of a mine be made. Generally partition
must result in a sale. To such property there is an unknown
value ; and a chancellor may well require full information as to
all the relations of the parties to the property before decreeing
any partition which will practically result in dispossessing one
A. 222; Enterprise, etc.. Co. v. Na- 2.5 X. W. Rep. 713; .Job v. Potton,
tional Transit Co., 172 Pa. St. 421; supra; Gregg v. Roaring Springs,
33 Atl. Rep. 687; Harrington v. etc., Co. (Mo.), 70 S. W. Rep. 920.
Florence Oil Co.. 178 Pa. St. 444; s Job v. Potton, supra.
35 Atl. Rep. 855 ; Williams v. South c Denys v. Shuckburgh, 4 Y. and
Penn. Oil Co., 52 W. Va. — ; 43 S. C. Exch. 42; 5 Jur. 21.
n. Rep. 214. A statute may, however, give a
3 Omaha, etc., Co. v. Tabor, 13 tenant a right of action against his
Colo. 41; 21 Pac. Rep. 925; 5 L. R. fellow tenant for mining ore with-
A. 236; Tipping v. Robbins. 71 Wis. out his consent. Murray v. Haver-
507; 37 N. W. Rep. 427; Job v. Pot- ty, 70 111. 318. See Childs v. Kan-
ton, L. R. 20 Eq. 84; 44 L. .7. Ch. sas City, etc., Co., 117 Mo. 414;
262; 23 W. R. 588; 32 L. T. 110. 23 S. W. Rep. 373.
■* Tipping v. Robbins, 64 Wis. 546 ;
298 on. AND GAS.
of the parties entirely." ^ And in a dictum in an Illinois ease
it was said : '' The mines, when opened, in their nature were
indivisible. Xeither partition could be-madoat law, nor dower
assigned by metes and Ixmiuls, The only partition that can be
made is to order a sale of the mines and divide the proceeds." "*
These were instances where the mines had been opened. Where
the mine has not been opened, the right to partition of land
having upon it solid niincrjils has been recognized;" and it will
be decreed unless the mineral is so situated that a probably fair
division of it cannot be made by dividing the surface of the
land." All things being ecpial, as between a partition and a
sale, a partition will bo decreed.^ ^ By agreement not to apply
for a partition, the owners may bar their right to it.^" The in-
terest of the several owners of a mine may be such, however,
as to prohibit a ]»artition, in which event a sale is the only relief.
Thus in an Illinois case it was said: '' If these twO' sepai-ato
interests and titles were united in one person . . . the
owner would have the right to sever the two estates by deed ov
devise. Where the owner would have that right there is no in-
herent difficulty in a co\irt of chancery severing the two estates
in a partition proceeding, where it is rendered necessary in
the interest of justice, and decreeing the dominant estate to one
and the servient estate to another. In recog-ni zing this ]U'inciple
we are applying it to the facts of the particular case before us,
•where the defendants in citot consented to accept the servient
estate. We do not at this time determine the question whether
a person not conversant with the management of the mine could
be compelled to accept as his share a mine thus set off to him
against his consent, or whether a mine could be set off to a
minor." ^" Thus where the owner in fee simple of certain hinds
granted an interest in them, in the following language: "" An
"Aspen Miniiifj, etc., Co. v. Riu-k- 1 Aiken 07; Kenil)le v. Keitthle. 44
er, 28 Fed. Rep. 220. N. J. Eq. 454; 11 Atl. llep. 733.
sLenifeis v. Heiike, 73 111. 405. u Boyston v. Miller, sirprd.
oHuffhes V. Devlin. 23 Cat 501; 12 Ames v. Ames, 160 111. 590; 43
Raiiiey v. Friok Coke Co., 73 Fed. X. R. Rep. 502; contra, Haeussler
Rep. 380. V. Missouri Iron Co.. 110 Mo. 188;
If Wilson V. Bogle. 95 Tenn. 290; 10 (s. W. Rep. 75; 16 L. R. A. 220.
32 S. W. Rep. 386; Conant v. Smith, is Ames v. Ames. >iupra.
CO-TENANTS.
29i)
undivided third interest in a certain piece of mining gTOund,"
describing it, '' togetlier with the water-rights, reservoirs, and
tale-raoe belonging to the same, and it is expressly conditioned
that this instrument conveys no other right except a mining
right on the premises above to the said party of the second part,
his heirs and assig-ns," it was held that there could be no parti-
tion as between the grantor and grantee. " The grant," said the
court, " does pot convey the exclusive dominion of any portion
of the ground so as to make the grantee a joint tenant or in com-
mon wdtli tlie gi-antor. It conveys only a particular estate or
incorporeal hereditament in hind of which the grantor held the
general estate." " Thus water rights Ix^longing to a mining
claim cannot be partitioned.'^ " Supposing that there may be
a right and estate in a mine," said the Supreme Court of Massa-
chusetts, " distinct from that of the soil in which it lies; there
seems to he a peculiar fitness in resorting to equity to adjust
and regulate tlie mutual rights of the parties. It is manifest
that partition cannot be made by setting off the surface by
metes and bounds, because the quantity and value of the mines
and ores, and the capacity and facility of access for working
them, bear no proportion to the area of the surface imder which
they lie. Indeed, in making partition at law, it has been found
necessary to make special partition, directing the division of the
profits, or tlie alteniate enjoyment of the common property, as
■ circumstances may require.'
?? 16
§277. Partition of oil or gas lands.
Discussion at length of partition of mines and mineral lands
has been made in order to throw some light upon the right of
1* Smith V. Cooley. 65 Cal. 46; 2 laying or being in or upon" a oer-
Pac. Rep. 880. tain described tract of land. " to-
15 McGillivray v. Evans, 27 Cal. gether with the right to raise, work
92 and carry away the same, the right
16 Adams v. Briggs Iron Co., 7 to put all buildings and to use all
Cush. 361; Boston Franklin, etc., lands necessary for that purpose.
■Co. V. Conditt. 19 N. J. Eq. 394. and the right of ingress and egress
In Canfield v. Ford. 28 Barb. 336. for that purpose." words of in-
a conveyance to one of " all the heritance being added, was held to
mines, ores, minerals and metals n,ns= a corporeal hereditament, an
300 OIL AND GAS.
partition of oil or gas lands. There is no doubt tliat an action
of partition lies to divide undeveloped and supposable oil or
gas lands, jnst as it does in case of lands containing solid min-
erals ; for it cannot be known, owing to the peculiar ciiaracter
of gas or oil as a mineral whetlier the land to be divided is actual
gas or oil lands ; and to refuse partition on the theory that it
may be, would be for the court to enter upju the domain of
mere si>eculation or supposability. But after gas or oil has been
discovered on the land, an entirely different question is pre-
sented. If the entire tract has been developed, and the wells
are so distributed, and their production is well kno\\ni so that
their resjTective values can be detennined, then a division might
possibly be decreed ; but it would be almost impossible to find
an instance of this kind. And then, too, other powerful wells,
in spite of the supposition that the land had been fully devel-
oped, might l>e sunk upon one part of the divided tract and all
attempts to find other productive wells on the other tract might
be failures. In such an event the ]xirtiti(in proceedings would
result in an unequal division in value, a thing studiously
avoided in partition proceedings. The nearest approach to
the question is one relating to a partition of water rights con-
nected with a mining claim, which cannot be done ; ^^ or of a
running stream of water flowing through the joint property, or
of streams, under ground.^^ Es]Decially can there be no parti-
tion of the right to take oil or gas from beneath a tract of land,
the surface being owned by a third person ; and an attempt of
the court to make partition of such a right is void.^^
§278. Accounting between co-tenants.
If one tenant work a mine, he must account to his co-tenant ;
and if he lease tlie premises, his co-tenant may exact his share
estate of inheritance, for a part of i9 Hall v. Vernon, 47 W. Va. 295 ;
which an action of partition would 34 S. E. Rep. 764; 49 L. R. A. 464;
lie. Christy's Appeal, 110 Pa. St. 538;
17 McGillivray v. Evans, 27 Cal. 5 Atl. Rep. 205 (coal); 9 Morr.
92. Min. Rep. 42.
18 Willis V. Perry, 92 la. 297 ; 60 •
N. W. Ren. 727 : 26 L. R. A. 124.
CO-TEXAXTS. 301
of tlie rent or royalty,"** or he may resort to the lessee and re-
quire him to pay the value of his share of ore taken out the
same as he could do if his fellow-tenant had taken out the ore
instead of leasing the right to do so."^ If the one tenant work
the mine he must account to his co-tenant for his just share of
the proceeds. In case of a gold mine where one tenant took
more than his share of the proceeds it was said he must account
to his co-tenant for the surplus and for all the profits made
out of such, surplus ; and if there be no proof that he used such
surplus, and no proof as to whether he made any profits out of
it, the law will raise a presumption that he did make a profit
out of it, and that the profits were equal to the legal rate of
interest on the value of such surplus."" If there he no dispute
as to the amount mined, and the only question is the proportion
of that amount the co-tenant is entitled to receive, assumpsit
lies to detennine that question."^ Where the cotenants were
lessees of the mine from different o^^^lers of undivided portions
of certain ore beds, it was held not to be a good defense on
that part of the defendant tenant that he had accounted to his
landlord for all he had taken out ; for if he account for
more tlian his proportion, he did so at his jjeril."* In a case
where the fellow tenant had worked a coal mine, it was held
that his co-tenant was entitled to recover the value at the pit's
mouth of his share of the coal raised, less all costs of getting
and raising it.^^ This might be termed the net profits; and
this amount is reasonable."'' This rule is applicable to the
20 Job V. Potion, L. R. 20 Eq. 84 ; Cal. 134; Barnum v. Landon, 25
44 L. J. Ch. 262; 23 W. R. 588; 32 Conn. 137; Harrington v. Florence
L. T. 110; Denys v. Shuckburgh, 4 Oil Co., 178 Pa. St. 444; 35 All.
Y. and C. Exch. 42; 5 Jur. 21; En- Rej). 855.
terprise Oil and Gas Co. v. National 23 Winton Coal Co. v. Pancoast
Transit Co.. 172 Pa. St. 421; 33 Coal Co., 170 Pa. St. 437; 33 Atl.
Atl. Rep. 687. Rep. 110.
21 Mercur v. State Lime, etc., Co., 24 Barnmn v. Landon, 25 Conn.
171 Pa. St. 12; 32 Atl. Rep. 1126. 137.
22 Huff V. McDonald, 22 Ga. 131 ; 25 Job v. Potton, supra.
Coleman's Appeal. 62 Pa. St. 252 ; 2c Enterprise Oil & Gas Co. v. Na-
Grubb V. Griibb, 101 Pa. St. 11; lional Transit Co., 172 Pa. St. 421;
Fulmer's Appeal. 128 Pa. St. 24; 33 Atl. Rep. 687; Williamson v.
18 Atl. Rep. 403; Gollcr v. Fett. 30 Jones, 39 W. Va. 231; 19 S. E. Rep.
Cal. 481; McCord v. Mining Co., 64 436; 38 L. R. A. 694.
o02 OIL AND GAS.
production of gas and oil. In a Pennsylvania case, in speak-
ing with reference to a coal mine operated by one of the co-
tenants, the Supreme Court said :
" It is urged, however, that before any liability to account
can arise, it must appear tliat the co-tenant ujx)n whom the de-
mand for an account is made has actually taken out more than
his just share or proportion of the entire mass of ore in the
beds or banks. It might be enough to say that the Act of
Asse«ibly makes no such provision. It applies to any case,
where coal, iron ore, or other mineral has been or shall be
taken from the common proj^erty. It does not say or imply
more than a just hsare or proportion. The remedy would be
illusory if such a construction should prevail, ^o one can tell
what the just share or pro}X)rtion of each tenant will l^e until
the whole mine or bank is exhausted of its entire deposit. In
such a mass — practically inexhaustible for generations to come
■ — it would make the one ninety-sixth part equal to the other
ninety-five, and really destroy to that extent their proportionate
Value. Here a tenant in common exercises his undoubted right
to take common property, and he has no other means of obtain-
ing his own just share than by taking at the same time the
shares of his companions. The value of the ore in place is
therefore the only just basis of account. This is the same as
the value of what is called ore leave — that is, what the right
to dig and take the ore is worth. Indeed all parties, as well
as the master and court below, seem eventually to have settled
upon this basis. But how is the value of ore leave to be ascer-
tained ? It is evident in the nature of things that it can have
no general market price. It will depend necessarily upon the
jwsition and circumstances of each particular mine, as well as
On the character of the ore. Tbe value of it at the pit's mouth
ilepends upon its quality and its proximity to the furnace
where it is to be used, and on the means of transportation. In
addition to this, the price of ore leave will be influenced by
the expense and risk of process of mining or taking it from its
place to the pit's mouth. It is evident that the price given for
ore leave in other mines or beds can afford no safe criterion,
nnless they should b:^ pre^is^ly similar in all respects to the
308
CO-TENANTS.
one i„ question. As to the Cornwall ore banks no sale had
ever been made of ore leave. Ko evidence was laid before the
,„as,er as to what, in the opinion of the ^I-;^'"- '^^ ^^
these banks would have commanded tn tho market. The mas
ter arrived at it by ascertaining the market value of the ore at
the pit's mouth, and then deducting from that the cost of mm-
in. We cannot see, under all the circumstances, that any
,„;re just and equitable mode eonld have been adopted. We
do not mean to say that it would hold in any other case than
,he one now before the conrt - certainly not where the mmmg
is expensive and hazar.lous. Where the tenant in common of a
coal mine, for example, tnust with gi-eat oirtlay of capital con^
struct ex,«nsive machinery, and incur all the r.sks of such n
undertakin-". the value of ore leave or coal .n place could not b<,
ascertained by so simple a calculation. The usual prohts en,-
barked in such a hazardous enterprise, with the proper allow-
ance for personal skill and attendance, would seen, to he more
,l,an fair and reasonable deductionc. Certainly any busmess
vnan, sitting dowm to calculate what he ought to give for ore
leave would take all these element.s info considerat.on. Other-
wise, with his own capital and at his own risk, he would sepa-
rate the ore fv„n, its natural |X,sition and place .t on the sur-
face enhanced in value for the benefit of a stranger. We kave
the rule in such a case to be determined when it arises.
Where a fellow tenant has made an express promise of a cer-
tain sum as his co-tenanfs share of operating gas or oil terr^
tory, assnn„>sit by the latter will lie against the fonner; but ,t
no such prondse has teen made, then the only remedy is by
account for a share of the profits. Under no circumstances m
sldia case is the co-tenant entitled to a share of the product
taken out of the ground. Thus where all but one of several co-
tenants of an oil lease assismed the entire lease for a share of the
oil produced, to be delivered to a pi)* line conniany to the credit
:Vi!'a.-,;oJ;.."i;7SA..Dee. CO.. 47 W. Va. .07; 34 S. E. B-p.
(UO: Graham v. Pierce, 19 Gratt. 933.
304 OIL AND GAS.
of those assigning; and one of the jnint owniers of the lease, who
did not join in the assignment, notified tlie pipe line company
not to deliver or pay for any of the oil so received by it to the
assignors, it was held that tlie assigTiors were entitled to all the
oil delivered t^) the pipe line company, and that the remaining
joint owner conld claim no part nf it."'' Three jiersons were
joint owners of a lease. Two of them agreed that one of the
two should work the oil M^ell on it in ])lace of a former employee
employed by the o^vner of the third })art. The owner of the
third part did not assent to the arrangement, but received his
share of the product. It was held that the latter was not liable
to the part owner working the oil well for his share of the ex-
pense; but it was said that he might be liable to his co-tenants
for the necessary ex])ense and care of the oil produced, but not
to the part owner working the well, because he had not employed
him.^** Xor can a joint tenant recover from his cotenants the
expense of pum])ing an oil well juimped against their consent,
even though a statute gives a right of action by assumpsit
against '' any joint owner, joint tenant or tenant in common,
holding an interest in and operating " an oil well for his share,
unless a contract, either express or implied, l>e shown as the
basis of the claim.^" Where the lease is worked under an agree-
ment, each owner must bear the loss of working it in proportion
to their interests.^^ In a case where a co-tenant had expended
a large sum of money in working an oil lease, the court said :
" I should think that a co-o^vner who has ex|>ended so large a
sum, entirely at his own risk, but with the knowledge of the
other co-owners, in so hazardous enterprise aS' developing oil
in an unexplored field, ought not to do more than account for
their proportion of a customary royalty, proper and fair under
ilje circumstances." ^"
2« B^iterpiise Oil & Gas Co. v. 29 Thompson v. Newton (Pa.); 7
National Transit Co., 172 Pa. St. Atl. Rep. 64.
421; 33 Atl. Rep. 687; Johnston v. so Murtland v. Callihan, 2 Super.
Price, 172 Pa. St. 427; 33 Atl. Rep. Ct. (Pa.) 340; Johnston v. Price,
688; 37 W. N. C. 387; 26 Pitts. L. supra.
J. (N. S.) 357 Murtland v. Calli- :^i Harrington v. Florence Oil Co.,
han, 2 Super. Ct. (Pa.) 340. 178 Pa. St. 444; 35 Atl. Rep, 855.
32 Williamson v. Jones, supra.
CO-TEXAXTS. 305
§279. Accounting when tenant excludes co-tenant.
\\^e.re one tenant excludes liis co-tenant under a claim of
ownership of the entire tract, and then works the tract for the
oil or gas that is in it, he must account to his co-tenant for his
share of the product taken out, and will not be allowed to de-
duct therefrom any part of the expenses necessarily incurred in
operating the wells on the traet.^^ In this case the defendant
purdiased of his oo-tenant, by fraudulent representations, his
interest in an oil lease ; and upon demand for a reconveyance,
the former offered to do so if the latter would pay his share of
all tlie oi>erating expenses incurred after the conveyance was
made. This offer was refused ; and in an acticm to recover his
full share of the entire product it was held that no cost of se-
curing it should be deducted. " Is the wrong-doer," asked the
court, " entitled in such a suit to recoup from the value of a
mineral as a chattel, the expense of mining or producing it ?
The mere statement of the proposition in this form suggests
the only answer that can be given, unless it is the policy of the
law to make the way of the transgressor easy and secure. The
relation of the parties to each other, as co-tenants of the lease,
and the fact that two of them, after fraudulently dispossessing
the other, may have continued to use the property as it would
probably have been used if they had all remained in possession,
does not mitigate the tort nor qualify the ordinary rule of dam-
ages. Co-tenants are bound to respect the rights of each other
quite as mudi as if they were strangers in title." This rule
was applied where a life tenant, who was also a co-tenant in com-
mon, bored wells on the land^ claiming it as his own. It was
considered that he was a trespasser, and should not be allowed
anything for the cost of production."*
33 Foster v. Weaver. 118 Pa. St. 694. See also Omaha, etc., Co. v.
4-2 ; 12 Atl. Rep. 313. Tabor 13 Colo. 41; 21 Pac. Rep.
34 Williamson v. Jones, 43 W. Va. 925; 5 L. R. A. 236.
562; 27 S. E. Rep. 411; 38 L. R. A.
306 OIL AND GAS.
§280. Owner of surface not co-tenant with owner of mineral
beneath surface.
If one person OAvn the surface and another the minerals
beneath it, there is no cotenancy existing between them. There-
fore, there is not that relation between them that forbids one of
them purchasing an outstanding title relating to the other's in-
terest, and holding it adversely to him."^ Thus where the
owner of land conveyed it to his grantee, but reseiwed all the
minerals beneath the surface, it was held that he could purchase
the title of his grantee at a tax sale, and in that way acquire the
title to the entire land.''®
§281. Purchase by tenant of co-tenant's interest.
In the purchase of his co-tenant's interest, a tenant is not
bound to reveal to him the value of the interest he is purchas-
ing, nor the fact that valuable minerals, (U' oil or g"as exist upon
the land they jointly own. There is no such relationship be-
tween them as requires him to disclose such facts. They deal
with each other at arm's length. ^^
§282. Equity jurisdiction of an accounting.
Under a contract specifying their iiidividunl interest in a
lease held and the business of o|>erating it by tenants as co-part-
ners in pumping and selling the oil produced from a well
thereon, a bill for an accounting is the exclusive remedy for the
settlement of their accounts.'"' So equity has jurisdiction of
suit for an accounting by the owners of an interest in an oil
lease against the owner of the remaining part, although each
party ran their own share of oil to their own credit and sold it,
"^Virginia Co;il Co. v. Kelley, 93 from the vendor on his interest diJ
Va. 332; 24 S. E. Rep. 1020. not alter their relations, so as to
3G Hutchinson v. Kline, 109 Pa. require a disclosure of the value < f
St. 564; 49 Atl. Rep. 312. the interest purchased.
:i-Neill v. Shamburg. 158 Pa. St. ss Johnston v. Price, 172 Pa. St.
263; 27 Atl. Rep. 992. In this case 427: 37 W. N. C. 387; 26 Pittsb.
it was further held that the fact L. J. (N. S.) 357; 33 Atl. Rep. 688,
that the piuclinsoi- liad a mortgage
CO-TENANTS. 307
-w^here the latter kept account of all expense of operating the
leasehold, under a statute giving courts jurisdiction in all
<;ases where an action of " account rendered " would lie.^® So
equity has jurisdiction of a bill of discovery to ascertain the
rights and relations of all the parties to an oil lease, and sub-
lease thereunder, and for an accounting for the profits from the
sale of gas/*^
§283. Expense of working joint property.
One tenant is not compelled to contribute to the working of
_gas or oil land *^ unless he agree to do so ; altliough a refusal
to do so will not deprive him of a right to demand an account-
ing, as we have seen, elsewhere, for the oil or gas taken out.*"
To permit one tenant, against the desires of his co-tenant, to
engage in the operation of oil or gas lands ; and charge him with
a share of tlie operating expenses, might bring the latter to
bankruptcy, or compel him to dis]X)se of his land at a, great
sacrifice. And where a statute provided that any one perform-
ing labor in pumping an oil well might recover from any tenant
in common of the premises, not, however, requiring the latter
to pay any share of the expenses of operation commenced and
carried on without his authority and consent, it was held that
a tenant in common was not liable to pay for labor performed
in pumping an oil well, where he offered to furnish a capable,
and competent person to do the work ; and his co-tenant refused
ijo accept the seiwices of such person or permit him to do the
•work."
39 Harrington v. Florence Oil Co., Atl. Rep. 64. As has been said, i-he
178 Pa. St. 444; 35 Atl. Rep. 8.55. amount allowed on an accounting,
40 Akin V. Marshall Oil Co., 188 where no other question is involved.
Pa. St. 614; 41 Atl. Rep. 748. is generally the usual royalty. Will-
41 Taylor v. Fried, 161 Pa. St. 53; iamson v. Jones, 43 W. Va. 562; 27
28 Atl. Rep. 993; Baker v. Bren- S. E. Rep. 411; 38 L. R. A. 694
nan, 12 Ohio c'. D. 211; 22 Ohio C. 43 Murtland v. Callahan, 2 Pa.
C. Dec. 241. Sup. Ct. 340.
42 Thorrpson v. Newton (Pa.), 7
308 OIL AND GAS.
§284. When a tenant bound by co-tenant's act.
As a rule a tenant is not bound by his co-tenant's act concern-
ing the joint premises. But there may be instances in wliich
he will be, aside from the question of partnership. Thus if it
1)0 necessary that certain work be done for the preservation of
the joint premises, and his co-tenant do it or have it done,
the other tenant will be liable for his proportionate share of
the expenses, which is a lien on his interest.** So if one ten-
ant have a valid Vwu on the joint estate, the other must contribute
a share pro]X)rtionate to his interest.*^ So if one of several
joint lessees, with intent to surrender the lease as to all, and
with the knowledge of his co-tenants, surrender the lease his
co-tenants will he bound by his act.*" So one of several joint
lessors may accept a surrender of their lease so as to relieve
the lessee from the payment of the rent.*^
§285. Injunction.
One co-tenant may maintain an action for an injunction
against a trespassing stranger to preserve the joint property ;
and so he may maintain an action against his co-tenant who has
taken ]X)Ssession of the joint property to his exclusion, is
denying his title, and is working the joint property, on the
ground that such act is one of waste.
48
§286. Surrender of lease by co-tenant.
One co-tenant in common cannot, without the consent of his
fellow tenants, bind their interests by a sun*ender of their
44^eck V. O'Connor, 21 Mont. 46 Hooks v. Forst, 165 Pa. St.
100; 53 Pac. Rep. 94; Haven v. 238; 30 Atl. Rep. 846.
"" [plilgarten, 19 111. 90; Alexander •it Churchill v. Lammers, 00 Mo.
■ . Ellison, 79 Ky. 148. App. 244.
■■' Ends V. Retherford, 114 Ind. -ts Williamson v. Jones, 43 \A\ Va.
■^73; 16 N. E. Rep. 587. See Pren- 562: 27 S. E. Rep^. 411; 38 L. R.
tice V. Janssen, 79 N. Y. 478; A. 694. See Trees v. Eclipse Oil
Holbrooke v. Harrington (Cal.), Co.. 47 W. Va. 107; 34 S. E. Rep.
36 Pac. Rep. 365. 933.
CO-TENANTS. ^^"^
\es.ser unless he is given express (or perhaps implied) an-
thority so to do.^*'
§287. Payment of rent or royalties.
^Vliere joint owers of land give an oil lease upon it, the
lessee may pay the royalties or rent to both or either one of
them ; and if one of them convey his interest in the land or
assign his interest in the lease, then payment may be Inade to
the remaining lessor or to the assignee, and either can receipt
for it."
§288. Fidelity relation between members of a mining partnership.
There is not that relationship existing betAVcen tenants in
common or partners of a mining partnership which forbids one
tenant or one partner demanding and receiving a higher smn
for his interest in the property than is paid therefor to his co-
workers, as exists between members of an ordinary partnership
and prevents such a transaction." Thus where it appeared that
tenants in common of a mine had formed a mining partnership
to develop the mine, showing profits and losses in proportion to
their respective losses; but there was no such partnership
fonned for the purpose of selling the property; and the part-
ners had settled up, and there was no further agreement to
develop the mine; it was held that one partner who had so d
his interest for more than his co-partners had received could
not be made to account to them for the surplus, for, as to the
mine, thev were only tenants in common.- A partnership
agreement to locate a mining claim is within the Statute of
Frauds and must be in writing to bind the partners ; and if it is
not in Avritin-, the remaining partners are without a remedy if
one of their ^ number takes title to a claim in his own name,
.0 Edmonds V. Mounsey., 15 Ind. - S.int - M^Calnnont Oil Co
App 399; 44 N. E. Rep. 196; Will- 184 Pa. St. 202; 41 W. ^. C. 491,
iains V. Vanderbilt, 145 HI. 238; 34 38 Atl. Rep. 1021.
N E Rep 476; Hooks v. Forst, 165 52 Harris v. Lloyd. 11 Mont. 390,
Pa St 247; 30 Atl. Rep. 846. 28 Pac. Rep. 736.
' -r-, X 53 Harris v. Llovd, supra.
50 Hooks V. Forst, swpra. narrib v. i. .v ,
310 OIL AND OAS,
to their exclusion, unless }>artnei'shij> funds have been ex-
pended in its acquisition, in which event equitable relief will
be given, on the ground of a resulting trust. °* Where four
purchased mining land from the State, only two giving bonds,
with sureties, for the purchase money ; and all but one left the
State, abandoned the work, gave the remaining one no aid, al-
lowing him to be pressed for money ; and he surrendered the
land to the State, and afterwards repurchased it in his owm
n£hne, and sold it at a profit, it was held that he was not bound
to account to his partners for tlie profit,°° It was considered
that the three partners had abandoned the enterprise.^" Wliere
certain parties purchased land for themselves, and represented
to a company to be formed that they had purchased such lands
for tlie proposed company, they having been obtained at first
cost from the vendors; it was held to be a fraud upon those
interested in the company to allow such purchasers to put them
into the company at a price in advance of the actual cost price,
without first informing such associates of the actual advance.
They were required to account for the ]u'ofits they had made
in the transaction.^' In a case of this character this language
was used :
" There are two principles applicable to all partnerships or
associations for a common pur]X)se of trade or business which
appear to be well settled on reason and authority. The first is,
that any man or number of men, who are the owners of any
kind of property, real or personal, may form a partnership or
association with others, and sell that property to tlie association
at any price Avhieh may be agreed upon between them, no
matter what it may have ordinarily cost, provided there be no
fraudulent misrepresentation made by tlie vendors to their as-
sociates. They are not bound to disclose the profit which they
may^realize by the transaction. They were, in no sense, agents
or trustees in the original purchase, and it follows, that there
54 Craw V. Wilson, 22 Nev. 385 ; r,n Rhea v. Vannoy, 1 Jones Eq.
40 Pac. Rep. 1076. 282.
S3 Rhea v. Tathem, 1 Jones Eq. ■'''" Simons v. Vulcan Oil, etc.. Co.,
200. 61 Pa. St. 202. See McElhenny'a
A'-'-o^1 01 Pa. St. 1S8.
01 1
CO-TENANTS.
is „o confidential relation between parties, which affects them
with anv trust. It is like any other case of vendor and vendee
They deal at arm's length. Their partners are in no b<.t e,
position than strangers. They must exercise their owii judg-
ment as to the value of what they buy. As it is succmetly n
well stated in Foss v. Harl»ttle » ' A party may l-™ a .k i
right to say, I begin the transaction at this time. I have pui
chased land, no matter how or from whom or at what pr,... 1
,m willing to sell it at a certain price for a given pu.,x,^.
This principle was recognized and applied by this court m .he
I!:; case'of McElhenny v. Hubert Oil Co.» ' t nowhere
appears,' said the present Chief Justice, ' that McElhennx , ,h.
"•Aaser from Ilul^rt, the original owner, did it as the age
If Jlessrs. Baird, Boyd & Co. and others, though he bought t
to sell again, no doubt; he had a ,«rfect right, therelore, o
deal with them at arm's length, as it seems he did. An. ,
again • ' Tf the pro,ierty was not purchased by Mcklhennv t..i
,he use, and as agent for the company, but- for his own use, he
,„ight sell it at a profit, ino«t assuredly. Xo subsequent pur-
cliTsers from his vendees would have any right to c.<.ll upon
him to account for the profits made on his sale. In that case,
McElhenny, being the o^vner of property which had cost l,n„
only $4,000, sold i, to Baird, Boyd & Co. ami ''^^^"Ij^^
ciatcd with him to form an oil e<,mpany, for $12,000, and t
wa. decided that the company could not call him m equity to
account for the profit he had made. The se<.ond pnucilde ,>
that where persons form suck an association, or begin to s a, t
the project of one, from that time they do st«nd in a confiden-
tial relation to each other, and to all otliers who may subse-
quentlv become members or subscribers, au.l it is not competent
for an; one of them to purchase property, for the purpose of such
a companv, and then sell it at an advance, without a full dis-
closure of the facts. They must account to the companv tor
the profit, because it legitimately is theirs. It ,s a fami ha,
principle of the law of partnership - one partner '^-">';* '"^
and sell to the partnership at a profit; nor ,f a partneish.p is
..■2 H»re 48a. » "' P"' ^'- "'■
312 OIL AND GAS.
in contemplation merely, can he purchase with a view to a
future sale, without accounting for tlie profit. Within the
scope of the partnership business, each associate is the general
asrent of the others, and he cannot divest himself of that char-
acter without their knowledge and consent. This is the prin-
ciple of Ilichens v. Congrove,''" Fawcett v. Whitehouse,***"
and the other cases which have been relied on by the a]i-
pellants. It was recognized in ^IcElhenny v. Hubert Oil
Co., just cited, and also in Simons v. The Vulcan Oil
Co.*'^ Both of theso cases were complicated with evidence
of actual misrepresentations as to the original cost of the
property to the vendors. In the opinion of the court in
the last case, delivered by Thompson, C. J., it is said:
' If the defendants, in fact, acted as the agents of the company
in acquiring the property, they could not charge a profit as
against their principal. Xor was tlieir ]K)sition any better if
they assumed so to act without precedent authority, if their
doings were accepted as the acts of agents by the association or
company. If in order to get up a company, they represented
themselves as having acted for tlie association to be formed,
and proposed to sell at the same price they paid, and their pur-
chases were taken on these representations, and stockliolders in-
vested in a reliance upon them, it would be a fraud on the
company, aaid all those interested, to allow them to retain the
large profits paid them by the company, in ignorance of the
true sums actually advanced.' The defendants in that case
were subscribers, with others, to the stock of a projected oil
comp^any, and, after the plan had been formed, secured to them-
selves by contract the refusal of tlie property, which they after-
wards sold to the company at a greatly advanced price." ®"
GO 4 J?uss. 562. 62 Densmore Oil Co. v. Densmore,
*Go 1 Euss. and M. 132. 64 Pa. St. 43.
6161 Pa. St. 202.
CHAPTER XII.
CONTRACTS FOR A LEASE.
§289. Not often drawn into controversies.
§290. Indefiniteness.
§291. What is a sufficient writing.
§292. Effect of taking possession under contract.
§293. Specific performance of contract for lease.
§294. Damages for breach of contract to give lease.
§289. Not often drawn into controversies.
Contracts for leases of gas or oil lands are not often brought
before- tlie courts ; but such contracts with reference to mining
leases are not uncommon, and from these analogous cases we
will draw a few illustrations.
§290. Indefiniteness.
If a contract for a lease be indefinite or uncertain in its
terms, it cannot be enforced." It must be an actual indefinite^
ness, and not an apparent one which can be removed by parol
evidence.- Where the description is so indefinite as to not de-
scribe the premises, the contract cannot be enforced, even
though the lessee be put into a possession of a part of them, m
connection with another person asserting similar rights to a part
of it ; and if the lessee has not complied with all the agreements
on his part, he is without a remedy.^ Mined products are con-
tinuously fluctuating in value, and for that reason time is of
1 Lancaster v. DeTrafford, 31 L. Cope, 2.5 Beav. 140; 27 L. J. Ch.
,T Ch 554- 7 L. T. 40; 10 W. K. 468; 4 .Jur. (X. S.) 227; 31 L. T.
474; 8 Jur.' (N. S.) 873. (0. S.) 48; 6 W. R. 304.
2Shardlow v. Cotterell. 20 Ch. 3 Lancaster v. DeTrafford. 31 L.
Div. 90; 51 L. J. Ch. 3.53; 4.5 L. T. .J. Ch. .5.54; 7 L. T. 40; 10 \Y. E.
572; 30 W. R. 143; Haywood v. 474; 8 Jur. (N. S.),873.
oi o
oio
314 OIL AND GAS.
the essence of all contracts for a mining lease; and tlie contract
in this respect must be definite.'*
§291. What is a sufficient writing.
As an oil lease is an interest in lands, a contract to give one
must be in writing in order to bind the owner of the land, the
Statute of Frauds requiring this. The writing, to be a bind-
ing c*ontract, must be signed by the owmer of the land, but need
not l>e l)y the person to receive the lease, though that is the
usual practice.^ A formal agreement is not necessary, it is
sufficient if there be a note or memorandum of the agreement
containing the names of the parties, the consideration, and the
subject matter. ** The contract may be embraced in two or
more papers ; and the language used in the several papers may
be such as connect them without further evidence ;^ but if the
language used does not so connect them, parol or other evidence
is admissible for that purpose.^ The contract may be signed
by the agent of the proi>erty owner, without having l>een au-
thorized in writing so to do ; and if the person signing had no
authority so to do, yet his act may be ratified and tlius become
binding.^ An agreement for a lease must be an actual agi'ee-
ment, and merely drawing up a written paper and sigiiing it,
when in fact there is no agreement will not make an agreement
4 Pendergast v. Tiirton, 13 L. J. 48 L. J. Ch. 10; 39 L. T. 173; 26
Ch. 268; 5 Jur. 1102; 8 Jur. 205; W. K. 865.
Huxhan v. Llewellyn, 21 W. R. 570; 7 Boydell v. Dummond, 11 East.
Walker v. Jeffreys, 1 Ha. 341; II 142.
L. J. Ch. 209; 6 Jur. 336; London s Nene Valley v. Dunkley. 4 Ch.
V. Mitford, 14 Ves. 58 ; Aloway v. Div. 1 ; Long v. Millar, 4 C P. Div,
Braine. 26 Beav. 575; 33 L. T. 100 450; 48 L .J. C. P. 596; 41 L. T.
S'Laythoarp v. Bryant, 2 Bing. N. 306; 27 W. R. 720: Pearce v. Gard-
C. 735j^ 5 L. J. C. P. 217; 3 Scott ner [1897]. 1 Q. B. 688; 66 L. J.
238; 2 Hodges 25; Seton v. Slade, 7 Q. B. 457; 76 L. T. 441; 45 W. R.
Ves. 274. 518; Cochrane v. Justice Mining
c Williams v. Lake, 2 El. and El. Co. (Colo.). 26 Pac. Rep. 780.
349; 29 L. J. Q. B. 1 ; 6 Jur. (N. n Dickinson v. Doodds, L. R. 2 Ch.
S.) 45; 1 L. T. 56; 8 W. R. 41; Div. 463; 45 L. J. Ch. 777; 34 L. T.
Sale V. Lambert L. R. 18 Eq. 1: 43 607; 24 W. R. 594; Bel v. Balls
L. J. Ch. 470; 22 W. R. 478; Res- [1897]. 1 Ch. 663; 66 L. J. Ch.
filter V. Miller, 3 App. Cas. 1124; 397; 76 L. T. 254; 45 W. R. 378.
CONTRACTS FOR A LEASE. 315
that can he enforced.^*' Part performance will dispense \vithi
a reduction of the agi'eement to A\Titing; and such a part per-
formance is where possession has been given and taken under
the oral contract,^^ not where it has been taken without an agree-
ment — or where possession has been continued by agreement,
followed, in eitlier instance by expenditures made upon the faith
of the contract/" But a mere understanding is not sufficient,
nor is what may be termed an " inchoate " agreement, as where
the contract is not complete, one or more of the essential parts
yet to be supplied. Such would be the case where the price,
in an instance of a sale or lease, was not definitely fixed,
even though all the other essentials were contained in the writ-
ing. But even in an instance of this kind, such an understand-
ing may be rendered valid when works of an expensive character
have been built u]X)n the premises by the prospective grantee
or lessee with the full knowledge of the grantor or lessor, upon
the faitli of the undei'standing being carried out by both par-
ties,^^ or if the inchoate agreement being completed," and the
works so constructed would be useless by the determination
of the understanding or inchoate agreement; but if there would
be no such loss, then the understanding or inchoate agreement
would not be carried out.^^ It is not uncommon for parties to
make a note or memorandum of a contract from which a formal
10 May V. Tliompson, 20 Cli. Div. 393; Dawson v. McFaddin, 22 Neb.
705; 51 L. J. Ch. 917; 47 L. T. 131; 34 X. W. Rep. 338; Truman
295; Bellany v. Debenham [1891], v. Trnman, 79 la. 506; 44 N. W.
1 Ch. 412; 60 L. J. Ch. 166; 64 L. Rep. 721; Moore v. Small, 19 Pa.
T. 468; 39 W. R. 257. Of course a St. 461; Freeman v. Freeman, 43 N.
contract otherwise illegal cannot be Y. 34; 3 Am. Rep. 657; Hardesty
enforced; and the mere fact that v. Richardson, 44 Md. 617; 22 Am.
it is put in writing will not render Rep. 57 ; ]\Ianly v. Hewlett. 55 Cal.
it enforceable. South African Ter- 94; Lanwston v. Bates, 84 111. 524;
ritories V. Wallington [1898], A. C. 25 Am. Rep. 466; Murphy v. Stell,
309; 67 L. J. Q. B. 470; 78 L. T. 43 Tex. 123; Lester v. Lester, 28
426; 46 W. R. 545. Gratt. 737.
11 Sui'combe v. Pinniger, 3 De G. i' Jackson v. Cator, 5 Ves. 687.
M. and G. 571; 22 L. J. Ch. 419. "Powell v. Thomas, 6 Ha. 306.
i2Hodson V. Heuland [1896], 2 i5 Bankart v. Tennant, L. R. 10
Ch. 428; 65 L. J. Ch. 754; 74 L. T. Eq. 141; 39 L. J. Ch. 809; 23 L. T.
881; 44 W. R. 684; Neale v. Ncale 137; 18 W. R. 639.
9 Wall 1 ; Seavev v. Drake. 62 N. H.
316 OIL AND GAS.
contract is to be drawn up. This occurs also often in instances
of negotiations by correspondence. I"sually, if not always,
tbese notes or memoranda contemplate the drawing up of a
formal contract before there is a binding obligation between the
parties. When sucli is the case, tJic failure to execute such a
formal contract may or not terminate the relation of the fmr-
ties or the enforceability of the negotiations or agreement. If
the note, instrument or writings contain their final agreement
it may be enforced, notwithstanding the fact that no formal
agreement has ever been drawn up, for such note, instrument
or writings contain thoir contract.^" If it does not contain the
final agreement, it cannot be enforced." Of course, in all such
instances the question is one of construction of the written note
or memorandum.^** Where the contract arises out of an offer
and acceptance, the acceptance must be as broad as the offer and
not exceed it; for if the acceptance contain any qualification of
the offer it will be regarded as a counter offer which will re-
quire the acceptance of the party making the first offer ; in
which instance the offer, counter offer and acceptance will con-
stitute the contract for the lease. ^^ Thus in answer to an ad-
vertisement for bids for a lease of a mine, a mining company
received a letter in which the writer offered " to take lease on
the whole proyierty at thirty-five per cent royalty at eighteen
months, and agree to expend at least five thous.and dollars every
month in development work ; I to have thirty days to begin work,
in order to make examination of property, and put machinery
in place. Lease to date from time of commencement of work.
Settlement as usual." The officers of the mining company
voted to accept the offer, and empowered its president to draw
up a lease in conjunction with the person making the offer, and
present it to the board of directors for their consideration. The
16 flossiter v. Miller, 3 App. Cas. is Rossiter v. Miller, supro
1124; 48 L. J. Ch. 10; 39 L. T. 173; isPattle v. Hornibrook [1897], 1.
26 \V. R. 860; Xorth v. Peroival Ch. 25; 66 L. J. Ch. 144; 75 L. T.
[1898]. 2 Ch. 128; 67 L. J. Ch. 475; 45 W. R. 123; Roiitled?e v.
321; 78 L. T. 615; 46 W. R. 552. Crant. 4 Ring. 660; South Heton
17 Lloyd V. Newell [1895], 2 Ch. Coal Co. v. Haswell Coil To.
744; 64 L. J. Ch. 744; 73 L. T. [1898], 1 Ch. 465; 67 L. J. Ch.
154: 44 \Y. R. 43. 238; 78 L. T. 366; 46 W. R. 355.
CO^"TRACTS FOR A LEASE. 317
president at once telegi'aplied the bidder that the lease had been
awarded to him ; and this was held to constitute a binding con-
tract for a lease, and the company could not insist that he ac-
cepted a lease which required him to do certain work regardless
of its productiveness, and give it, the company, privileges,
under certain contingencies, to dispose of the ore mined."*'
§292. Effect of taking possession under contract.
Usually one put into possession, under a contract for the
purchase of real estate, before the actual completion of the pur-
chase, waives the right to object to the vendor's title and for
that reason refuse to complete the purchase. Care, however,
must be observed in this connection. Thus tliere is a broad
difference between a possession taken under a contract which
provides that the title shall be a good one, and also provides
that possession may be taken before the purchase is completed ;
and one under which possession is taken makes no provision
for such a title. And where it is claimed that there was a
waiver of a right to insist that a good title be shown before the
purchase shall be completed, the distinction between instances
where the vendor can remove the objections to the title, and
those, to the knowledge of the vendee that they are not remov-
able, must be lx)rne in mind. And the reason for this is that
where a vendee knows of defects in the title or conditions af-
fecting it, and that the vendor has no control over them, by
taking or remaining in possession of it, ho waives his right
to insist on the particular irremovable objections of which he
had knowledge before he took possession."^ These rules, how-
ever, are not applicable in their full force to sales or leases of
mines ; for as their time is often of the essence of a contract,
one who has agreed to accept the lease of a mine may take pos-
session of it before the lease is granted, and his entrance will
sf^ Cochrane v. Justice Mining Co. Bown v. Stenson, 24 Bear. 031;
(Colo.), 26 Pac. Rep. 780. Burnell v. Brown, 1 J. and W. 168;
21 /« re Gloag and Miller's Con- Stevens v. Giiffy. 3 Russ. 171; 6 L.
tract. 2.3 Ch. Div. 320; 52 L. J. Ch. J. (O. S.) 164.
654; 48 L. T. 629; 31 W. R. 601;
818 oil. AND GAS.
not be considered as an acceptance of the title of the lessor tO"
grant the lease.'"
§293. Specific performance of contract for lease..
Where a valid contract for a lease has been executed, a court
of equity will decree a specific performance, and compel the ex-
ecution of a lease in accordance with the terms of the contract,
but the court will not decree a working of the premises to which
the contract relates, leaving the parties to their action for dam-
ages."^ And where damages will afford adequate relief, or
there is an uncertainty in the contract, specific performance will
not be decreed.^* If the contract for a lease is not complete,
then specific performance will not be decreed nor damages
awarded ; and an absence of any essential part in the contract
will be fatal to tlie person claiming under it."^ But mere un-
certainty as the identity of the land referred to, which may be
removed by parol evidence, will not, however, defeat the action
either for damages or for specifio performance.^*' Only such
a lease will be decreed as the contract calls for^ witliout any
variation from it.^^ If, pending the suit for a s}>ecific perform-
ance, the owner lessen the value of the lease-to-be, by extracting
the thing for which the lease was granted, the court will award
damages in that suit, or if they be not discovered until after
the decree, in a supplemental action.^* If there has been inad-
vertent misreipiresentation on the part of the owner of the land,
specific performance at his instance will not lie to compel the
22 Haywood v. Cope, 27 L. J. (N. Sm. 335; 10 L. T. 105; 11 Jur. 918;
S.) Ch. 468; 25 Beav. 140; 4 Jur. Price v. Griffith, De G. M. and G.
(N. S.) 227; 31 L. T. (0. S.) 48; 80; 21 L. J. Ch. 78; 15 Jur. 1003;
6 W. R. 304. See Davis v. Shep- 18 L. T. (O. S.) 190.
har*, L. R., 1 Ch. App. 410; 35 L. 25 Maynell v. Surtees, 3 Sm. and
J. Ch. 581; 15 L. T. 122. G. 101.
23 Wolverhampton R. R. Co. v. 20 Doe v. Martin, 4 B. and Ad,
London, etc., R. R. Co., L. R. 16 Eq. 785; Price v. Griffith, supra.
433; 43 L. J. Ch. 131; Powell Duf- 27 Carne v.. Mitchell, 15 L. J. (N.
fryn Coal Co. v. Taflf Vale Rail Co., S.) Ch. 287.
L. R. 9, Ch. App. 331; 43 L. J. Ch. 2? Nelson v. Bridges, 2 Beav. 239;.
575; 30 L. T. 208. 3 Jur. 1098.
2t Ricketts V. Bel!, 1 De G. and
CONTRACTS FOR A LEASE. 319
acceptance of the lease made pursuant to the terms of tlie con-
tract,^^ and the same is much more so where both wilful mis-
representation and fraud have been used to induce the execution
of the contract.^'' But mere vague commendation or pviffing is
not enough to defeat sj>ecific performance ; ^^ nor is glowing de-
scriptions of the probable success of an adventure.^" Xor is
there any misrepresentation such as will avoid the contract if
the j>erson complaining of them relied upon his own examina-
tion of the premises, or was not misled by them.^^ Occasionally
a specific jDerformance of a contract will not be decreed where
the owner of the land has not been apprised of the value of the
lease he has contracted to grant, as where he has been " sur-
prised," as it were, into signing the contract. Thus where tlie
plaintiff knew all alx)ut the value of the mining privileges,
and the defendant did not, having recently purchased the land,
and he hurried the defendant into signing the agreement, the
■court refused to decree a specific performance of the agreement,
on the ground that an undue advantage had been taken of the
defendant, and also on the suspicion that the royalties were
grossly inadequate, as was alleged.^* By delaying his action
for specific performance — as, for instance, three years and a
half — the person insisting upon a decree for it may lose his
right to it.'^^ Delay on the part of the owmer in tendering a
coal lease, until much of the coal has l^een taken out of the
premises, will defeat his right to a decree for specific perform-
ance.'''
29Higgins V. Samels, 2 J. and H. 6 CI. and F. 232; 2 L. J. Exch. 1;
460; 7 L. T. 240; Rieketts v. Bell, 1 Younge 407; Colby v. Gadsden, 34
supra. Beav. 416; 11 Jur. (N. S.) 760; 12
30 Powell V. Elliott. L. R. 10 Ch. L. T. 197.
App. 424; 33 L. T. 110; 23 W. R. 34 Walters v. Morgan, 3 De G. F.
777. and J. 718; 4 L. t. 758.
31 Jennings v. Broughton, 5 De 33 Eads v. WilliaraSj 24 L. J. ( N.
•G. M. and G. 126; Higgins v. Sam- S.) Ch. 531; 4 De G. M. and G.
«Is, supra. 674; 11 Jur. (N. S.) 193; 3 W. R.
32 Jennings v. Broughton, 17 98; 24 L. T. 162; Macbride v.
Beav. 234; 22 L. J. Ch. 585; 17 Weekes, 22 Beav. 533; 2 Jur. (X.
Jur. 305; 1 W. R. 441. S.) 918; 28 L. T. (O. S.) 135; Gee
33 Jennings v. Broughton. 5 De v. Pearse, 2 De G. and Sm. 325.
O. ]\I. and G. 126: Small v. Attwood. 3c Kille v. Reading Iron Works,
320 OIL AND (JAS.
§294. Damages for breach of contract to give lease.
Where a person enters into a contract to give a lease, and he
has neither title to the land to be leased nor power to execute a
lease, the person contracting with him has a right to and may
recover substantial damages from him for the breach of the
contract.'''^ Such is not the case, however, where the title is
merely defective, or where the lessor has some title ; for there
only nominal damages are recoverable. If the lease be granted
and possession be taken or attempted to be taken under it, but
the lack of title or defect in it be not discovered until after the
lease be executed and such possession be taken or attempted, the
lessee may recover substantial damages under the covenant for
quiet enjoyment; and the same is true if there be an express
covenant for title.^^
141 Pa. St. 440; 21 Atl. Rep. 6G6.
Where a contract for a mining
lease contained a clause permitting
a surrender by the proposed lessee
at any time on giving notice, it was
held that a statute authorizing spe-
cific performance of an agreement
for a lease did not authorize speci-
fic performance of such an agree-
ment entered into without a valu-
able consideration, the lessee hav-
ing nothing that would entail a loss
on his part in case of its non-en-
forcement. Grummett v. Gingrass,
77 Mich. 369; 43 N. W. Rep. 999.
37 Robinson v. Hurman, 1 Exch.
850; 18 L. J. Exch. 202; Hopkins v.
Grazebrook, 6 B. and C. 31; 9 D.
and R. 22; 5 L. J. (O. S.) K. B. 65.
38 Flureau v. Thornhill, 2 W. Bl.
1078; Walker v. Moore, 10 B. and
C. 416; 8 L. J. (O. S.) K. B. 159.
See Engel v. Fitch, L. R. 3 Q. B.
314; 9 B. J. S. 85; 37 L. J. Q. B.
145; 18 L. T. 318; 16 W. R. 785.
W'here the vendor of an interest in
a lease retained the possession of it
without being obliged to make a re-
sale of it at a lower price, and he
made no tender of a conveyance of
it. it was held that he could recover
only nominal damages. Garner v.
Peters, 9 Pa. Super. Ct. Rep. 29;
43 W. N. C. 261.
CHAPTER XIII.
ADVERSE POSSESSION-STATUTE OF LIMITATIONS.
§295. Peculiarities of oil and gas. — Possession of sui'face.
§29G. Rule as to oil and gas.
§297. Possession of surface not adverse to owner of oil or gas.
§298. Possession of oil operator not adverse to owner of surface.
§299. Acquiring right to oil or gas under Statute of Limitations.
§300. Receiver. — Title in dispute. — Injunction.
§301. Accounting.
§295. Peculiarities of oil and gas. — Possession of surface.
In. discaissing the question of adverse possession and the
Statute of Limitations in regard to natural gas and oil, care
must be taken to bear in mind the peculiar character of this
fluid and this gas, and the ownership in them. The owner
cannot claim tliem as his absolute property until he has re-
duced them to actual possession. While upon his territory he
has a qualified proiierty in them ; but as soon as they pass from
beneath the surface of his land, even that limited o^vnership
is gone.^ If tlie land has been leased for oil or gas purposes, it
cannot be said merely because the lessor occupies the surface he
has adverse possession of tlie oil and gas. The same rule ap-
plies to coal or any other mineral."
1 Westmoreland, etc.. Co. v. De- 760; Armstrong v. Caldwell, 53 Pa.
Witt, 130 Pa. St. 235; 18 Atl. Rep. St. 284; Plummer v. Hillside Coal
724; 5 L. R. A. 731; 29 Amer. L. & Iron Co., 160 Pa. St. 483; 28 Atl.
Reg. 93. Rep. 853; Moreland v. Frick Coke
sCatlin Coal Co. v. Lloyd, 176 Co., 170 Pa. St. 33; 32 Atl. Rep.
111. 275; 52 N. E. Rep. 144; Catlin 634; Lulay v. Barnes, 172 Pa. St.
Coal Co. v. Lloyd, 180 111. 398; 54 331; 34 Atl. Rep. 52; 37 W. N. C.
N. E. Rep. 214; Caldwell v. Cope- 409; McBee v. Loftis, 1 Strob.
land, 37 Pa. St. 375; 72 Am. Dec. Eq. 90.
321
322 OIL AND GAS.
§296. Rule as to oil and gas.
What is true of coal or other mineral, is also tnie of oil and
gas. It is not sufficient to show, where title by adverse posses-
sion is claimed by the surface owner as against the claimant
or owner of the gas, that sudi surface owner has had possession
for a period equal in length to the period required to establish
title to land by adverse possession, where there has been a
severance of the ownership of the oil and gas from land.^ In
speaking of adverse possession in such an instance, the Supreme
Court of Pennsylvania said :
" They had put down a well, which had tapped the gas-
bearing strata, and it was the only one on the land. They had
it in their control, for they had only to turn a valve, to have it
flow into their pipe, ready for use. The fact that they did
not keep it flowing, but held it generally in reserve, did not
aifect their possession any more than a mill owner affects the
continuance of his water right when he shuts his sluice gates.
On the other hand, Bro^^^l had no possession of the gas at all.
His possession of the soil for pur}X)ses of tillage, etc., gave him
no actual possession of the gas ; and he had no legal possession
for his lease had conveyed that to another. How, then, had
he taken, ' full and absolute possession of the premises and
rights,' as found by the master; apparently, he had asserted to
the complaints his claim tliat the lease was forfeited. In addi-
tion, on one occasion when the agent of complainants was at
their well for a specific purpose, Bro^\m had ordered him off
the land ; but there is no evidence that he went until he had
finished his business there. Shortly before this the complain-
ants had sent men on the land to l>egin the erection of a der-
rick for a second well, and Brown had ordered them off. This,
A\4'iich is the strongest item in the proof, is really no evidence
at all of dispossession of complainants. They still remain in
possession of tlieir well, which gave them the sole control of
the gas, so far as its utilization was concerned, and the sole pos-
■'• 'S\urvi\y v. Allard. 100 Tenn.
100; 43 S. W. Rep. 355; 39 L. R. A.
24<i; 6G Am. St. Rep. 740.
ADVERSE POSSESSION. 323
session of which it was capable, apart from the land, from
which it had been legally severed by the lease. The utmost
that can be said of snch an occurrence is that it was a violent
and temporary interference with that portion of complainant's
rights which authorized them to put down a second well. This
was no more a dispossession of complainants from their occu-
pation of the gas than blocking up one of a farmer's roads to
his house would be an ouster from his farm. We are there-
fore of opinion that the master was wrong in finding as a fact
that complainants were out of possession, and should be remitted
to an ejectment to establish their title at law." *
§297. Possession of surface not adverse to owner of oil or gas.
Possession of the surface is not an adverse possession of the
oil or gas beneath it wdiere such oil or gas is owned by another
or rather w^here such other has a right to reduce it to possession.
Such occupation, and even cultivation, is not even evidence of
adverse enjoyment of the right to take oil or gas; and the mere
non-user for a long period — as forty years — of the right to
take it will not extinguish it, altliough it may work a, forfeiture.
" As the right was neither acquired nor evidenced by use, sO' we
think it cannot be lost by misuse. And as there was no adverse
enjoyment to raise the presumption of a conveyance or release
of it, the right of those holding the written title remains unim-
paired." ^ In speaking of adverse possession of coal beneath
the surface of a tract of land, the Supreme Court of Pennsyl-
vania used the following langiuige :
'' It is no doubt, the general presumption that^ a party who
has possession of the surface of land has possession of the sub-
soil also, because, ordinarily the right to the surface is not
severed from the right to the strata below the surface. But
this piresumption does, not exist when these rights are severed.
4 Westmoreland, etc., Co. vs. De- 106: Davis v. Clark, 2 Mont. 310;
Witt, 130 Pa. St. 235; 18 Atl. Ap. Kingsley v. Hillside Coal & Iron
724; 29 Am. L. Reg. 93. Co.. 144 Pa. St. 613; 23 Atl. Rep.
5 Said of coal beneath the snr- 250.
face. Arnold v. Stevens. 24 Pick.
324 OIL AND GAS.
Each tlien becomes a distinct possession. In such a case, the
possession of tlie surface, following the right, is as distinct
from the possession of the minerals or subsoil strata which
have been severed in right, as is the possession of one tract of
land from that of another not in contact with it. Hence it is
settled that when by a conveyance or resei-vation a separation
has been made of tlie ownership of the surface from that of the
underground minerals, the o^vner of the former can acquire no
title by the Statute of Limitations to the minerals, by his exclu-
sive and continual enjoyment of the surface. Xor does the
o^vner of the minerals lose his right or his jDossession by any
length of non-user. He must be disseised to lose his right ; and
there can be no disseised by act that does not actually take the
minerals out of his possession. There seems to be no reason why
the Statute of Limitations should not be held applicable to all
corporeal hereditaments, including those that are only subsurface
rights. ... In Caldwell v. Copeland ^ it was said that
adverse possession of the mine by the owners of the surface for
the statutory period wO'uld avail as title. But such possession
must be distinct from that of the surface. It is unaided by
surface rights or surface occupancy. What, then, is adverse
possession of the coal in a tract of land, in a case where the
OAvner of the land has by deed severed the ownership of the
coal from the ownership of the surface ? Its nature cannot be
changed by the fact tliat it is more difficult of enjoyment. Like
adverse possession of every other corporeal hereditament, it must
be actual (as distinguished from oonstrucitive), exclusive, con-
tinued, peaceable and hostile for twentyvone years in order to
give title under the Statute of Limitations. There is no rea-
son for adopting a less stringent rule. The owner of the sur-
face can acquire title against the o^vner of the minerals under-
neath by nO' acts or continuous series of acts that would not give
title to a stranger. If the owner of a coal mine is not in actual
possession, and the owner of the surface, or any other person,
digs pits or drives adits into the minerals, and carries on min-
ing operations there continuously for the statutory period ad-
« 37 Pa. St. 427.
ADVERSE POSSESSION. 325
verselj to the right of any other, he may acquire a right. In
such a ease he takes actual possession of the entire body of
minerals in the tract of land. He may therefore acquire a
title to the whole. But inasmuch as there cannot be any
residence upon the coal, or cultivation mthout continual pedis
■possessio, or retention of tlie hold upon the mine, tliere can Ix^.
no ouster of the owmer, and consequently no acquisition of a
right. If one digs turves or cuts wood upon another's land for
his own use, and if he sells some of the turves he dug or the
wood he cut to the neighbors, it is not pretended tliat he can
acquire title to the land by such conduct, though repeated at
intervals through the whole period of twenty-one years. . . .
The court below, therefore, erred in leaving to the jury to find
that the plaintiff had acquired title to the coal by having taken
out some of it for family and neighborhood uses, at intervals
during twenty-one years, without any evidence tliat the taking
had been constant and continuous." ^
§298. Possession of oil operator not adverse to owner of surface.
The lessee or the o}>erator of oil wells under a lease does not
have adverse |X)ssession of so much of the surface as he actually
occupies with his machinery, wells, den'icks, pij^e lines, oil
tanks and the like, as against the o^vner of the surface ; and he
cannot in that way obtain title, at least so long as tliere is oil
to be pumped.^
§299. Acquiring right to oil or gas under Statute of Limitation.
Title may be acquired by adverse possession of solid mineral,
but the possession must be of the actual mineral and not of tlie
surface under which it lies where a severance of the mineral
from the surface has taken place. ^ But if one take possession
of the surface, where no severance of the mineral has even
taken place, adverse possession against the owner of the land
will give title to the mineral beneath it ; and a conveyance of
7 Armstrong v. Caldwell, 53 Pa. » Armstrong v. Caldwell, 53 Pa.
St. 284. St. 284; Caldwell v. Copeland, 37
sDietz V. Mission Transfer Co. Pa. St. 427.
<Cal.), 25 Pac. Rep. 423.
326 OIL AND GAS.
the mineral by the rightful o\\aier before the statute has run will
not be such a resumption of possession as will stop the running
of the statute — it is not an entry upon the land.^° This must be
an open and not a secret entry/^ Suppose, however, that the
owner of the surface should exclude the owner of the oil or gas
beneath the surface from entering on such surface and drilling
for the oil or gas for a period equiv^alent to the Statute of Lim-
itations, and during that period such owner of the oil or gas
had endeavored — either once or more than once — ineffeictually
to enter on the surface for the purpose of drilling — would not
such acts be such an adverse possession as to defeat the right of
the 0A\Tier of the oil or gas ? It seems to us it would. The
rule applicable to tenants in common is probably the true one
in such an instance. Tlie 0A\mer of the oil has no power to
secure it unless he can enter upon the surface ; and if he is de-
nied that right and excluded for the usual period of the Statute
of Limitations applicable to adverse possession, it seems that
he has lost his right to drill for and take the oil.^"
§300. Receiver — title in dispute — injunction.
A receiver will be appointed to operate gas or oil wells when
the title to the land is in dispute, in order to prevent a waste
during litigation, or where the person taking the oil or gas is
insolvent.^^ So if one invade the premises of another and be-
gin taking oil or gas, an injunction will be issued upon
proper application, to restrain him.^* Where the claim of own-
ership of a person in possession dated back to a time prior to
the right of entry, by parties who were out of possession, and
the person in possession was solvent, and to issue an injunction
would stop operations and the land during such cessure of
loCatlin Coal Co. v. Lloyd, 180 Co.. 144 Pa. St. G13; 23 All. Rep.
111. 398; 54 N. E. Rep. 214; Catlin 250.
Coal Co. V. Lloyd, 176 111. 275; 52 12 See Erskine v. Forest Oil Co.,
N. E. Rep. 144; Kingsley v. Hill- 80 Fed. Rep. 583.
side Coal Co., 144 Pa. St. 613; 23 ^s Nevada Sierra Oil Co. v. Home
Atl. Rep. 250. Oil Co., 08 Fed. Rep. 673.
11 Finnegon v. Steinner, 28 Pittsb. i* Indianapolis Natural Gas Co.
L. J. (N. S.) 68; 5 Pa. Super. Ct. v. Kibby, 135 Ind. 357; 35 N. E.
Rep. 127; Kingsley v. Hillside Coal Rep. 392.
ADVERSE POSSESSION.
32'
operations would be drained by operations on other lands, the
court- refused to issue an injunction, and sent the parties to a
court of law to establish their title to the land.^^ Where in a
bill to quiet title, it appeared, tliough the complainant claimed
title, that the defendant was in possession, had drilled wells, re-
moved oil from the premises, and was drilling more wells, the
i'ourt refused to gTant relief, sending the parties to a court of
law to bring an ordinary action of ejectment/®
§301. Accounting.
Mere delay by the lessor in bringing a suit against the lessee
for an accounting will not bar a recovers^, if the action is not
barred by the Statute of Limitations ; ^'' and color has been lent
to the claim that even the Statute of Limitations will not bar
the right to an accounting.^^
15 Erskine v. Forest Oil Co., 80
Fed. Rep. 583.
16 California Oil and Gas Co. v.
Miller, 96 Fed. Rep. 12.
17 Ahrns v. Char tiers Valley Gas
Co. 188 Pa. St. 249; 41 Atl. Rep.
739; Akin v. Marshall Oil Co., 188
Pa. St. 602 ; 41 Atl. Rep. 748.
18 Williams v. Short. 1.55 Pa. St.
480; 26 Atl. Rep. 662. A widow of
a partner, where a managing part-
ner continues to manage the prop-
erty after the death of his co-part-
ner is not barred, as a rule, by the
Statute of Limitations, from an ac-
counting. Thomas v. Hurst, 73
Fed. Rep. 372. Secretly extracting
mineral prevents the Statute of
Limitations running until the ex-
tracting is discovered. Lewey v. H.
C. Frick Co., 166 Pa. St. 5.36; 31
Atl. Rep. 261; 28 L. R. A. 283.
CHAPTER XIV.
RESERVATION AND EXCEPTION.
§302. Distinction* between reservation and exception.
§303. Severance of mineral by reservation or exception.
§304. Reservation of " all minerals " includes oil and gas.
§305. Reservation of right to drill for oil restricted.
§306. Ownership of gas or oil beneath public highways, rivers or sea.
§307. Reservation or exception subject to lien of judgment.
§308. Wife's interest in reservation. — Construction.
§309. Location of oil claim on public lands.
§302. Distinction between reservation and exception.
The distinction between a reservation and an exception should
be borne in mind. " A reservation is a clause in a deed whereby
the grantor doth reserve some new thing to himself out of that
whidi he granted before. This doth differ from an exception,
which is ever a part of the thing granted, and of a thing in esse
at the time: but this is of a thing newly created, or reser^^ed
out of a thing demised, tliat was not in esse before." ^ "A
reservation isi something taken from the whole thing covered by
the general terms making the grant, and cuts do^\m and lessens
the grant from Avhat it would be except for the reservation." "
" An exception is something reserved by the grantor out of that
which he has before granted. It is indispensable to a good ex-
ception that the tiling excepted should be a part of the thing
previously granted, and not of any other thing." ^ " An excep-
tion is always a part of the thing granted, and of a thing in
being; and a, reseiwation is of a thing not in being, but newly
1 Craig V. Wells, 11 N. Y. 315, Parsell v. Stryker, 41 X. Y. 480;
quoting Shep. Touch 80. Ryckman v. Gillis, 6 Lans. p. 70.
2 Miller V. Lapham, 44 Ct. p. 434 ; 3 Case v. Haight. 3 Wend. 632;
Darling v. Crowell, 6 N. H. 421.
328
EESERVATION AND EXCEPTION. 329
created out of lands and tenements demised ; though exception
and reservation have often been used promiscuously." *
§303. Severance of mineral by reservation or exception.
A reservation or exception of all the mineral in a tract con-
veyed is a separation of the estate in the mineral from the
estate in the surface. " A reservation of minerals and mining
rights is construed as is an actual grant thereof." " A reser-
vation of mineral and mining rights from a grant of tlie estate,
followed by a grant to another of all that which ivas first re-
served, vests in the second grantee an estate as broad as if the
entire estate had first been granted to him with a reservation
of the surface." ^ Of course, what is true of a reservation is
also true of an exception." In ease of either a reservation or
an exception, the gTantor has a right to enter on the surface,
with all the usual necessary appliances, to remove the mineral,
without any express authority reserved to that effect.' In case
of a reservation of minerals, such mineral descends to the
grantor's heirs.^ A reservation as large as the gi'ant itself is
void, and the grant is valid. ^
§304. Reservation of " all minerals " includes oil and gas.
A clause in a deed of conveyance resei*ving " all minerals "
has been held not to include jDetroleum, and by analogy not to in-
clude natural gas.^° But this decision has been greatly shaken
4 State V. Wilson, 42 Me. 9; Cun- St. 182; Foster v. Runk, 109 Pa.
ningham v. Knight, 1 Barb. 399; St. 291; Lillibridge v. Lackawanna
Gould V. Glass, 19 Barb. 179. Coal Co., 143 Pa. St. 293; 22 Atl.
5 Marvin v. Brewster, etc., Co.. 55 Rep. 1035.
Ohio St. 538; Farnum v. Piatt, 8 7 Wardell v. Watson, supra. Will-
Pick. 339; :Munn v. Stone, 4 Cush. iams v. Gibson, 84 Ala. 228; 4
146; Warden v. Watson, 93 Mo. So. Rep. 350; Dietz v. Mission
107; 5 S. W. Rep. 605. Transfer Co. (Cal.), 25 Pac. Rep.
c Snoddy v. Bolen, 122 Mo. 479 ; 423.
24 S. W\ Rep. 142; 25 S. W. Rep. 8 Whitaker r. Brown, 46 Pa. St.
932; Norton v. Snyder, 2 Hun. 82; 197.
Sloan V. Furnace Co., 29 Ohio St. o Shoenberger v. Lyon, supra;
568 ; Baker v. McDowell, 3 W. and Foster v. Runk, supra.
S. 358 ; Shoenberger v. Lyon, 7 W. lo Dunham v. Kirkpatrick, 101
and S.. 184; Whitaker v. Brown, 46 Pa. St. 36; 47 Am. Rep. 696,
Pa. St. 197; Alden's Appeal, 93 Pa.
330 OIL AND GAS.
in the State where it was rendered, bv a subsequent decision
holding that petroleum is a mineral substance obtained from
the earth by process of mining and lands from which it is ob-
tained may be designated as mineral lands." In another case
in another State, a reservation in deed of conveyance of " all
mines, minerals and metals in and under the land " was held
to include petroleum. " The first question to be determined,"
said the court, " is whether petroleum oil is included within
the language of reservation of ' mines, minerals and metals.' ^^
Clearly, from this description of the substance, it
could not in any sense fall under the terms ' metal ' or ' metal-
lic' The question, .then, to be determined is, does it fall
within the term ' mines and mineral ' ? . . . In the most
general sense of the term, minerals are those parts of the earth
which are capable of being got from underneath the surface
for the purpose of profit. The term, therefore, includes coal,
metal, ores of all kinds, clay, stone, slate and coprolites. . . .
The term is not limited to metallic substances, but includes salt,
coal, paint, stone and similar substances. . . . We think,
however, that the true meaning of tlie word ^ mineral,' as well
as its meaning among the bulk of mankind, must be deterinined
from dictionaries and other similar authorities. We do not
think that the bulk of mankind could be regarded as holding
that the word ' mineral ' applied only to metals." After re-
viewing a number of cases from other States, and especially
Pennsylvania, the court concludes : " We are bound to hold
that i>etroleum is a mineral and that it falls within the terms
of the reservation in the deed. . . . The same is true of
natural gas." ^^ In Ohio, however, in a case of a conveyance of
11 Gill V. Weston, 110 Pa. St. language was used in a West Vir-
305; 1 Atl. Rep. 921. ginia case in defining petroleum.
-* 12 Quoting Century Dictionary. Williamson v. Jones, 39 W. Va.
13 Murray v. Allard, 100 Tenn. 231; 19 S. E. Rep. 436; 25 L. R.
100; 43 S. W. Rep. 355; 39 L. R. A. A. 222.
249; 66 Am. St. Rep. 740. Under a railroad grant reserving
In an early Pennsylvania case it minerals, it was decided that pe-
was said " Oil is a mineral, and be- troleum was included. Union Oil
ing a mineral, is part of tlie real- Co.. 25 Land. Dec. 351.
ty." Funk v. Haldeman, 53 Pa. St. The United States land laws pro-
229, 249. Practically the same vide that " Any person authorized
RESERVATlOISr AND EXCEPTION.
331
" all the coal of every variety, and all the iron ore, fire clay, and
other valuable minerals," in and under a certain described tract,
giving the grantee in perpetuity the right " of mining and re-
moving such coal, ore, or other minerals " and " right to the
use of so much of the surface of the land as may be necessary
for pits, shafts, platforms, drains, railroads, switches, side
tracks, etc., to facilitate the mining and removal of such coal,
ore, or other minerals, and no more," it was held that the deed
did not pass the title to the petroleum oil and natural gas in
such lands. " The words ' other minerals,' or ' other valuable
minerals,' taken in their broadest sense, would include petro-
leum oil ; but the question here is, did the parties intend to in-
clude such oil in the mining right ? Taking all the terms of the
conveyance in the light of the surrounding circumstances, and in
view of the above rule of construction, ^^ and upon the authority
of the case of Dunham against Ivirkpatrick,^^ we conclude that
the title to the oil did not pass under said conveyance, but re-
mained in the owner of the soil, and upon his death passed to
to enter lands under the mining
laws of the United States may en-
ter or obtain patent to lands con-
taining petroleum or other mineral
oil, and chiefly valuable therefore,
under the provisions of the laws re-
lating to placer and mineral
claims." Act approved Feb. 11,
1897, 29 Stat, at Large 526; 2
Supp. R. S. U. S. 549.
The Supreme Court of the United
States has held that salt is not a
mineral, within the meaning of the
mineral statutes, but in so doing it
calls attention to the well known
practice of the government in re-
serving salt springs from sale. Mor-
ton V. Nebraska, 21 Wall. 660. A
recent act of Congress classes
saline lands as mineral lands and
locatable as placer. Act of Janu-
ary 31. 1901, 21 Stat, at Large
145. In Texas the opposite is held.
State V. Parker, 61 Tex. 265.
11 Referring to Barringer and
Adams on the Law of Mines and
Mining, p. 131, where it is said:
" In determining what is included
in a lease, the familiar rules of
construction are applied. The grant
is construed most strongly against
the grantor. The whole contract
must be considered in arriving at
the meaning of any of its parts.
Terms are to be understood in tlieir
plain, ordinary, and popular sense,
unless they have acquired a par-
ticular technical sense by the
known usage of trade. They are to
be construed with reference to their
commercial and their scientific im-
port. This rule is of especial im-
portance when the question arises
whether a specific mineral is in-
eluded in a gereral designation."
15 101 Pa. St. 36.
332 OIL A^•D GAS.
his heirs. There is nothing to show that it was the intention of
the parties that oil should be included in the word ' minerals/
and the easements granted, in connection with tlie mining right,
are not applicable to producing oil ^^ and show that oil was not
intended to be included in the conveyance. If it had been, apt
words would have been used to exp'ress such intention." ^^ Where
a contract was to convey the land but reserving all oil and gas
in or under the said lands, with free mining privileges of all
kinds, it was held that a deed of conveyance containing a clause
" excepting and reserving all gas, oil, cx3al, ores and other min-
eral deposits in, under or on the said premises," was not a
compliance with the contract; for by the contract the agreement
was to convey the " coal, ores and other mineral deposits," as
distinguished from " gas and oil." ^^
§305. Reservation of right to drill for oil restricted.
Under a reservation of a right to drill for oil or gas, the
grant^or, his heirs or assigns have a right to drill wells to
prospect, for oil or gas, even though there is no surface indica-
tion of either of them ; but the lands cannot be used for the
development of otJier lands, nor machinery used on other lands
be stored on it, nor oil taken from other lands be stored on
or transported over it.^^
§306. Ownership of gas or oil beneath public highways, rivers
or sea.
If the public own the fee in a public highway, then it may
take all mineral beneath the surface of such highway, as in an
16 " Nothing is said about der- minerals in common use, and com-
ricks, pipe lines, tanks, the use of monly known as such/' does not
water for drilling, or the removal of cover marble, serpentine, or other
machinery used in drilling or oper- building material, which, at the
ating oil or gas wells." time the reservation was made, was
17 Detlor V. Holland, 57 Ohio St. not known to exist in the country.
492 f 49 K E. Rep. 690; 40 L. R. A. Deer Lake Co. v. Michigan, etc., Co.,
266. 89 Mich. 180; 50 N. W. Rep. 807.
A reservation of " all mines and is Moody v. Alexander, 145 Pa.
ores of metal that are or may here- St. 571; 23 Atl. Rep. 161.
after be found on the said lands, i" Dietz v. Mission Transfer Co.,
with the right . . . to mine and carry 95 Cal. 92; 30 Pac. Rep. 380; Dietz
away the mineral thereon," covers v. Mission Transfer Co. (Cal.), 25
only " mines and ores of metal and Pac. Rep. 423,
KESERVATION AND EXCEPTION.
333
instance of coal,"*' or of petroleum.'^ If the public highway
or street be abandoned, tlie fee, being a base fee, reverts to the
person who dedicated it, in case of a dedication,-^ or if taken
bj right of eminent domain, to the abutting property owners,
but such abutting lot owner cannot take the mineral from
beneath the highway so long as it remains a public one."* In
the Missouri case just cited it was said : " The street having
been dedicated to p'ublic use as a tlioroughfare, no private party
(not even the city itself) had any authority or right to use it
for any other purpose." ~'^ If the public have a mere easement,
then the abutting land owner owns the minerals beneath the
highway ; '^ and the same is true where the public acquire only
an easement by the right of eminent domain."^ Yet it would seem
that the owner of mineral beneath a highway may remove it,
if he can do so without, interfering with the public in the use
of such highway."^ But this is a rule of little if any practical
value in cases of oil and gas. For an oil or gas well must
necessarily be an obstruction of the highway when sunk in it.
20 [Tnion Coal Co. vs. City of La
Salle, 136 111. 119; 26 N. E. Rep.
506; 12 L. R. A. 326, an action to
recover damages brought by a city
against one taking the coal from
beneath a street of the city. Des
Moines v. Hall, 24 la. 234; Hawes-
ville V. Hawes, 6 Bush. 232.
21 Ontario Natural Gas Co. v.
Gasfield, 18 Ontario App. 626.
23 Matthiesson, etc., Co. v. La
Salle. 117 111. 411; 2 N. E. Rep.
406; 8 N. E. Rep. 81.
24 Matthiesson, etc., Co. v. La
Salle, supra; Friend v. Porter, ,50
Mo. App. 89.
2r. In Union Coal Co. v. City of
La Salle, supra, the court declined
to pass on the right of the city to
sell the coal beneath the street. In
Ontario Natural Gas Co. v. Gos-
field, supra, a statvite authorized a
township to sell or lease the gas or
oil beneath the surface of any pub-
lic highway.
20 Tousley v. Galena, etc., Co., 24
T^an. 328; Smith v. Rome, 19
Ga. 89.
27 Smith V. Holloway, 124 Ind.
329; 24 N. E. Rep. 886; Kelly v.
Donahoe, 2 Mete. (Ky.) 482; Evans
V. Haefner, 29 Mo. 141; Goodtitle
v. Alker. 1 Burr. 143; Holmes v.
Bellingham. 7 C. B. (N. S.) 329;
Berridge v. Ward, 10 C. B. (N. S.)
400; 30 L. J. C. P. 218; 7 Jur. (N.
S.) 876; 2 F. and F. 208; Lyman
V. iVrnold, 5 Mason 195; Fisher v.
Rochester. 6 Lans. 225; Robert v.
Sadler, 104 N. Y. 229; 10 N. E.
Rep. 428.
28 Robert v. Sadler, supra; Perley
V. Chandler, 6 Mass. 453 ; Old Town
v. Dooley, 81 111. 255; Winchester v.
Capron, 63 N. H. 605; Williams v.
Kenney, 14 Barb. 629. But of this
the laws are conflicting as can be
seen in citation 24.
334 OIL AND GAS.
and especially tlie maeliinei";)' used in sinlving and operating
it ; "" and, therefore, it is practically impossible to make use of
a highway in order to extract the oil or gas beneath its sur-
face. As the public authorities only have the right to use the
highway for the pur^wses of the public in traveling, they have
no power to let any part of it for oil or gas operations, unless
especially authorized by a statute to do so, and then only when
the public owai the fee. The owner of land dedicating it to the
public for a highway may reserve the mineral beneath its sur-
face ; and in such an instance he may remove it; ^° and if he
convey tlie abutting property, his grantee is the owner of the
mineral.^^ Mineral beneath a navigable river or tlie sea be-
longs to the State. ■^'
§307. Reservation or exception subject to lien of judgment.
A reservation or exception of the gas or oil, or other mineral,
beneath the surface of a tract of land conveyed is subject to a
lien of a judgment taken against the grantor after tlie convey-
ance containing the reservation or exceptioi| has been made."'^
§308. Wife's interest in reservation — construction.
Husband and wife conveyed by deed certain real estate in fee
simple, reserving to tliemselves the equal one-half part of the
usual royalty of one-eighth of all the oil underlying the tract
conveyed. In the deed it was expressly stated that they did
not convey thereby such one-eighth of the oil. The grantee of
29 state V. Berdetta, 73 Ind. 185; In Ventura County, California,
38 Am. Rep. 117; 20 Amer. L. Reg. many oil wells have been drilled in
342. tlie ocean, some as far as two hun-
30 Dubuque v. Benson, 23 Iowa dred yards from the shore. In the
248.'*' Gulf of Mexico, off the Texas coast
31 Tousley v. Galena, etc., Co.. 24 many miles, it is said that oil float-
Kan. 328; Snoddy v. Bolen, 122 Mo. ing on the water can be readily dis-
479; 25 S. W. Rep. 932. cerned.
32 2 Bl. Com. p. 18. See Pitts- 33 First National Bank v. Dow, 41
burgh, etc., Co. v. Lake Superior Hun. 13. See Tliompson v. Mat-
Iron Co., 118 Mich. 109; 7C N. W. tern, 115 Pa. St. 501 ; 9 Atl. Rep. 70.
Rep. 395.
EESERVATIOA^S AND EXCEPTIOlSrS.
335
the tract of land aftenvards leased it witli tlie exclusive right
tO' drill and operate for oil and gas, reserving one-eighth part
of all the oil obtained from the premises as produced in the
crude state. It was held that the reservation in the lease
vested in the lessor one-eighth of the oil, but did not include the
one-eighth which was outstanding in the wife of the original
grantor.^*
§309. Location of oil claim on public lands.
Lands of the United States containing oil is subject to loca-
tion the same as any other mineral land.^^ To render the land
subject to location under the mining laws, the locator must
know that oil exists on the land, the fact that surface indica-
tions were such as to point to tlie fact that oil might exist not
being sufficient, or a mere conclusion, drawn from other facts,
that it does exist is not a sufficient discovery. ISTor is it suffi-
cient that oil is known to exist in a nearby territory ; or that
another person other than the locator knows it exists; but the
locator may so acquire his knowledge of the existence of oil, and
so step into his shoes, as it were, as to render his title by loca-
tion valid. ^"^
34 Harris v. Cobb, 49 W. Va. 350;
38 S. E. Rep. 559.
35 Act of February 11. 1897, 29
Stat, at Large 526; 2 Siipp. R. S.
U. S. 549.
3c Nevada Sierra Oil Co. v. Home
Oil Co., 98 FeJ. Rep. 673; Nevada
Sierra Oil Co. v. Miller 97 Fed.
Rep. 681; Gird v. California Oil
Co., 60 Fed. Rep. 531; Olive Land,
etc., Co. v. Olmstead, 103 Fed. Rep.
568; Cosmos, etc., Co. v. Gray-
Eagle Oil Co., 104 Fed. Rep. 20.
For cases of solid mineral, on
this point, see Dower v. Richards,
151 U. S. 658; 14 Sup. Ct. Rep.
452; McCormick v. Sutton, 97 Cal.
373; 32 Pac. Rep. 444; Francoeur
V. Newhouse, 43 Fed. Rep. 236;
Northern Pacific Ry. v. Walker, 47
Fed. Rep. 681; Schendell v. Rogan,
94 Tex. 585; 63 S. W. Rep. 1001;
McShane v. Kenkle, 18 Mont. 208;
44 Pac. Rep. 979; 33 L. R. A. 851.
CHAPTER XV.
PARTNERSHIPS.
§310. Mining partnerships applicable to gas and oil operations.
§311. Tenants in common not partners.
§312. By agreement a mining association becoming an ordinary part-
nership.
§313. Mining agreements that create ordinary partnerships.
§314. Working a mine together creates a mining partnership.
§315. Selection of a partner. — Sale of interest.
§316. Tenants in common usually do not become partners.
§317. Illustration of what makes a mining partnership.
§318. Promoters. — Prospectors.
§319. Life of mining partnership. — Dissolution.
§320. Partition and accounting works a dissolution.
§321. Majority control.
§322. Power of partner in mining or oil enterprise.
§323. Partner's lien.
§324. Liability of incoming partner.
§325. Each partner liable for all partnership debts.
§326. Limited partnerships.
§310. Minings partnerships applicable to gas and oil operations.
A mining partnership in man}' things is radically different
from an ordinary partnership. As this kind of a partnership
has been expressly held applicable to oil or gas adventures/
although, not recognized in Pennsylvania,*^ it will be necessary
m this connection to discuss the niles of law applicable to them
generally. In discussing the law with reference to mining part-
nerships, the subject must be approached, as it were, from two
direflions : One where joint owners of gas or oil lands operate
them in order to extract gas or oil ; and, second, where two or
more jointly accept a lease of oil lands, or become jointly in-
iChilders v. Neeley, 47 W. Va. 70; borne, 159 Pa. St. 10; 28 Atl. Rep.
34 S. E. Rep. 828; 49 L. R. A. 468. 163.
* 1 Butler Savings Bank v. Os-
336
PARTXEKSIIIPS. 337
terested in one, and oi)erate the lands leased with a view to
extract the gas or oil.
§311. Tenants in common not partners.
As between themselves, co-tenants are not partners, whatever
they may be to the outside world. A standard authority has
made this comparison between co-ownership and co-partnership :
" Speaking generally, and excluding all exceptional cases, the
principal difference between co-o^vnership and partnership may
be stated as follows: (1) Co-ownership is not necessarily the
result of agreement. Partnership is. (2) Co-ownership does
not necessarily involve community of profit or loss. Partner-
ship does. (3) One co-owner can, without the consent of the
others, transfer his interest to a stranger, so^as to put him in
the same position as regards the other o^^mers as the transferer
himself was before the transfer. A partner cannot do this.
(4) One co-owner is not as such the agent real or implied of
the others. The partner is. (5) One co-owner has no lien on
the thing owned in common for outlays or expenses, nor for
what may be due from the others as their share of a common
debt. A partner has. (6) One co-o\vner of land is entitled
to have it divided betw^een himself and co-OAvners, but not to
have it sold against their consent. A partner has no right to
partition in specie, but is entitled, on a dissolution, to have
the partnership property, whether land or not, sold and the
proceeds divided. (7) As between the real and personal rep-
resentatives of a deceased co-owner of freehold land, tlie equita-
ble as well as the legal interest in his share is real estate ; whilst
as between the real and personal representatives of a deceased
partner the equitable interest in his share of partnership free-
hold p.roperty is treated as personal estate, although the legal
interest in it is real estate. (8) Co-ownership not necessarily
existing, for the sake of gain, and partnership existing for no
other purpose, the remedies by way of account and otlierwise
which one co-owner has against the others, are in many impor-
tant respects different and less expensive than those which one
partner has against his co-partners." ^
- Lindley on Partnership 58.
338 OIL AND GAS.
§312. By agreement a mining association becoming an ordinary
partnership.
By agreement the owners of a mine or of mining lands, or
the owners of a lease of a mine or mining lands, may become
partners in tlie ordinary sense of the term, not only as to them-
selves but as to strangers. The conduct of the parties may be
such as to create such a partnership. Thus where certain min-
eral land had been held in co-ownership, and large quantities
of iron ore had been extracted from the mines upon it ; and
extensive iron works had been erected by the owners of the land
upon it, which were conducted as a trading concern, not only in
the product of the mines, but of foreign iron and iron ore,
manufactured at the works ; it was held that the owners
were a trading concern and an ordinary partnership.*^ The
terms of the agreement may be varied from time tO' time by
the conduct of the parties.^ Such a. partnership is governed
by tlie ordinary incidents of a partnership. There is nothing
in the mining business to forbid the creation of such a part-
nership. The confidential relations of an ordinary partner-
ship, exist between the partners; and the Avithdrawal of one
partner dissolves the partnership-. The partners are strictly
partners ; not because of their common ownership of the mine,
but as a result of their own agreement.* " Tenants in com-
mon," said the Supreme Court of Illinois, " or joint tenants of
a mine or quarry may or may not be partners, and the mine or
quarry itself may or may not be a part of the common stock.
But it is highly inconvenient, if not altogether impossible, for
co-owners of a mine or quariy to work it themselves without
becoming partners, at least in the profits of the mine ; and
persons who work a mine or quarry in common are regarded
ratber as partners in trade than as mere tenants in common of
"•^Crawshay v. ]\Iaule, 1 Swanst son 4 Colo. 567; State National
521; 1 Wils. 181; Bradley v. Hark- Bank v. Butler, 149 111. 575; 36 N.
ness, 26 Cal. 69. E. Rep. 1000; Judge v. Braswell,
3 Smith V. Jeyes, 4 Beav. 50.3. 1.3 Bush. 69; 26 Am. Rep. 185;
4 Decker v. Howell, 42 Cal. 636; Burgan v. Lyell, 2 Mich. 102; Jef-
Stuart V. Adams, 89 Cal. 367 ; 26 frey v. Smith, 1 Jac. and W. 298.
Pac. Rep. 970; Lawrence v. Robin-
PARTNERSHIPS. 339
land. The co-owners of mines may be partners, not only in t)ie
profits, but also in the mines themselves. The co-owners are
then partners to all purposes, and their mutual rights and obli-
gations are determined l>y the law of partnership as distinct
from the law of co-ownership." ^
§313. Mining agreements that create ordinary partnerships.
If two or more persons^ agree to engage in a mining adven-
ture, to purchase a mine and share the gains and profits equally,
they are ordinary trading partners. In such an instance each
exercises his choice in selecting co-partners ; and if any one
sells out his interest, the partnership is dissolved, the purchaser
and remaining partners becoming tenants in common of the
mine and its working, subject to the rules applicable to mining
partnerships. ° A., the owner of a coal mine, entered into an
agreement with B. as follows : ( 1 ) A. was to have a royalty on
ever^^ bushel of coal hoisted and sold, to be paid before any-
thing else was paid, at the end of each month; (2) A. to have
all control of the mine and the workings connected with it; (3)
settlements to be made each month and profits divided or losses
to be paid, one-fourth to or by B., the remainder to or by A. ;
(4) A. was to have an option on B.'s interest, if he desired to
sell ; (5) if at any time it should be considered by the parties ad-
visable to connect tile works with the mines, the expense of doing
so to be in the proportion of one to three, the profits or losses
therefrom to be divided on the same basis. As to third parties
who gave credit to the firm with notice of the agreement, A. and
B. were held to be partners.^ Where the own^r of a mining-
right agreed with owner of a mill for the reduction of ores that
if the latter would reduce the ores taken out of the mining right,
a certain projDortion should vest in such mill o^vner and both
estate National Bank v. Butler, Quinn v. Quiim, 81 Cal. 14; 22 Pac.
149 111. 575; 36 N. E. Rep. 1000; Eep. 264; Lawrence v. Robinson, 4
Snyder v. Burnham, 77 Mo. 52; Colo. 567.
Smith V. Jeyes. 4 Beav. 503 ; Free- 7 State National Bank v. Butler,
man v. Mememway, 75 Mo. App. 149 111. 575; 36 N. E. Rep. 1000,
€11. reversing 48 111. App. 648.
6 Decker v. Howell, 42 Cal. 636;
340 OIL ANB OAS,
Should bear the costs of the expense of mining, melting and
shipping, each to bear a certain proportion, the profits of the
enterprise to be shared between them — it was held that the
agreement constituted them partners.^
§314. Working a mine together creates a mining partnership.
If two or more owners of a mine unite in working it, witliout
anj partnership agreement, the act of working it together
creates a mining pai-tnership ; and the same is true of two or
inore liolding interests in a lease of mining property. " Wliat-
ever may be the rights and liabilities," of tenants in common
of a mine not being worked, said the Supreme Court of Cali-
fornia, " it is clear that when the several owners unite and co-
operate in working the mine, then a, new relation exists between
them, and, to a certain extent, they are governed by the rules
relating to partnership. They form what is termed a mining
partnership, which is governed by many of the rules relating to
ordinary partnerships, but which has also some rules peculiar
to itself, one of which is that one person may convey his interest
in a mine and business without dissolving the partnership.
Still there may be a partnership in the working of a mine, sub-
ject to the rules relating to an ordinary partnership in trade.
And this relation may be constituted either by express stipula-
tion or by implication deduced from the acts of the parties.
But in case of an ordinary mining partnership, something more
will be required to raise the presumption of liability arising
from persons holding themselves out to the world as partners,
than would be necessary in the case of an ordinary partuer-
fchip." '
. 8 Ashenfelter v. Williams, 7 Colo. Charles v. Eshleman, 5 Colo. 107;
App. 332; 43 Pac. Rep. 664; Con- Manville v. Parks, 7 Colo. 128; 2
tra 'fietti v. Nesbitt, 22 Nev. 390; Pac. Rep. 212; Hawkins v. Spokan,
41 Pac. Rep. 151. etc., Co., 2 Idaho 970; 28 Pac. Rep.
sSkillman v. Lachman, 23 Cal. 4.'^3 ; Nolan v. Lovelock, 1 Mont. 224;
109; Kahn v. Central Smelting Co., Anaconda, etc., Co. v. Butte, etc.,
102 U. S. 641; Bissell V. Foss, lUU. Co., 17 Mont. 519; 43 Pac. Rep.
S. 252; 5 Sup. Ct. Rep. 851, affirm- 924; Randall v. Merideth, 76 Tex.
ing 4 Fed. Rep. 694; 2 McCrary, 73; 669; 13 S. W. Rep. 576.
PARTXEESIIIPS. 341
§315. Selection of a partner.— Sale of interest.
It is a cardinal rule of all ordinar)^ partnershipsi that one
about to engage in a partnership enterprise has the right to
select his partners ; in such a partnership the delectus personae
has a part. But such is not the case in a mining partnership. In
an ordinary partnership, if a new partner has been introduced,
the old partnership is dissolved as to all the partners, where
there is no agreement that it shall be continued.^'' The convey-
ance of one partner of his interest to a stranger works a disso-
lution of the partnership. But such is not the case with a min-
ing partnership!, for a member of it may convey his interest to
a stranger without dissolving the partnership, and the purchaser
will become a partner in the enterprise, as much so as his
vendor.^^ After referring to the case just cited. Justice Field
of the Supreme Court of the United States, said : " This case
settles two propositions: first, that the members of a mining
association have no right to object to the admission of a stranger
into the association who buys the share of one of the associates ;
and, second, that the sale and assignment by one of the asso-
ciates of his interest does not dissolve the mining partnership.
It follows from these propositions, that one member of a min-
ing partnership has the right, without, consulting his associates,
to sell his interest in the partnership to a stranger, and that such
a sale injures no right of property of the other associates. Much
less does a purchase by one associate of the share of another in-
flict any wrong upon the other members of the partnership.
There is no relation of trust or confidence between mining mem-
bers which is violated by the sale and assignment by one partner
to a stranger, or to one of the associates of his share in the
property of the association." ^- Therefore, the death of one of
Tlie law with reference to mining 291 ; Morss v. Gleason, 64 N. Y.
partnerships has been codified in 204.
some States, as in California. Civil n Kahn v. Central Smelting Co.,
Code 1885. Sees. 2511-2520; Idaho, 102 U. S. 641.
Rev. Stat. Sees. 3301-3309; Mon- isBissell v. Foss, 114 U. S. 252, 5
tana. Civil Code 1895, Sees. 3350- Sup. Ct. Rep. 851, affirming 4 Fed.
3359. Rep. 694, 2 McCrary, 73, Santa
10 Heath v. Sanson, 2 B. and Ad. Clara, etc., Assn. v. Quicksilver
342 OIL AND GAS.
the partners does not dissolve the partnership; his heirs snc-
ceeding to his rights and place the same as a vendee of tlie in-
terest, although they take no part in the management of partner-
ship affairs, and do not hold themselves out as partners/^
§316. Tenants in common usually do not become partners.
There is no presumption where tenants in common work
mines or mining territory together (and the same is true of oil
territory) that they have created an ordinary co-partnership,
either by their acts or by an agreement. If the course of deal-
ings among co-tenants is naturally referable to the relation
already existing among them, they, in the working of the mine
or development of the mining territory, will be considered as
co-tenants rather than partners,^* Thus where two joint owners
of a lease of oil lands agree to carr}^ on operations upon such
land, each contributing a proportionate share of the expenses,
they are not only between themselves not partners, but are not
so as -to third parties. They are simply working their own
shares, responsible for their ovni acts, and are not subject to
the laws of partnership.^^ In the distribution of proceeds of an
oil or mining adventure in the hands of a receiver, derived from
an oil lease in the hands of tenants in common, they will be
deemed such tenants, and no preference will be given creditors
of the enterprise over individual creditors of either tenant,
unless there was a partnership in fact, or by holding out.^" And
Mining Co., 17 Fed. Rep. 657; Set- Walker v. Tupper, 152 Pa. St. 1; 25
terabre v. Putnam, 30 Cal. 490; Mc- All. Rep. 172; Brown v. Jaquette,
Connell v. Denver, 35 Cal. 365; 94 Pa. St. 113; Neill v. Shamburg,
Jones V. Clark, 42 Cal. 180; Smith 158 Pa. St. 263; 27 Atl. Rep. 992;
V. Cooley, 65 Cal. 46; 2 Pac. Rep. Taylor v. Fried, 161 Pa. St. 53; 28
880; Chung Kee v. Davidson. 102 Atl. Rep. 993. See Chiklers v.
Cal. 188; .36 Pac. Rep. 519; Hig- Neeley, 47 W.Va. 70,; 34 S. E. Rep.
, gins^v. Armstrong, 9 Colo. 38; 10 828; 49 L. R. A. 468.
Pac. Rep. 232. is Butler Savings Bank v. Os-
i:i Taylor v. Castle, 42 Cal. 367; borne, 159 Pa. St. 10; 28 Atl. Rep.
Nishet v. Nash, 52 Cal. 540; Clark 163. It should be observed that in
V. Ritter, 59 Cal. 669; Charles v. Pennsylvania such a thing as a
Eshleman, 5 Colo. 107. " mining partnership " is unknown.
1* Dunham v. Loverock, 158 Pa. ic Meridian National Bank v. Mc-
St. 197; 27 Atl. Rep. 990. See Comica, 8 Ohio Cir. Ct. Rep. 442.
PARTNEKSIIIPS, 343
where coal lands descended, one-third to the widow and two-
thirds to children of the deceased, and the latter entered on the
premises and worked the mines thereon until nearly exhausted,
it was held that the widow could not hold the children liahle to
her as partners or trespassers, they at no time having excluded
her from the premises ; but could hold them as co-tenants/'
Where leases were taken in the individual names of the several
lessees, it was said that " if the parties by parol associated them-
selves as partners, for the purpose of developing and operating it
for the production of oil, it might thereby be converted into
partnership assets, for the payment of partnership debts." ^^
§317. Illustration of what makes a mining partnership.
A, owned a tract of undeveloped coal land. He agreed with
B. and C. that they might prospect for coal until they struck a
particular seam, they two doing all the work, and to have two-
thirds of the claim. After the seam was struck, the three,
jointly, were to prosecute the work, A. paying one and B. and C.
two-thirds of the expenses. It was held that this was a mining
partnership; and did not create the relation of landlord and
tenant.^** The proprietors of ditches in mining districts are
tenants in common of real estate, and the rights in the ditch
and in the profits arising from the sales of water are governed
by the law of tenancy in common."" Two persons, being the
owner of a two-thirds interest in a mine, verbally agreed with
the plaintiff that they would furnish the tools and provisions
and he should explore and develop the mine ; and if it should
prove valuable, they would give him an equal share of their in-
terest. This was held to make a mining partnership."^ " The
working of a mine under a bare mining right has been uniformly
17 McGowan v. Bailey, 179 Pa. i9 Henderson v. Allen, 23 Cal.
St. 470; 36 Atl. Rep. 325. 519.
18 Brown v. Beecher, 120 Pa. St. 20 Bradley v. Harkness, 26 Cal.
590; 15 Atl. Rep. 608. See Pat- 69; McConnell v. Denver, 35 Cal.
rick V. Weston, 22 Colo. 45; 43 Pac. 365.
Rep. 446. 21 Settembre v. Putnam, 30 Cal.
490.
344 OIL AND GAS.
considered by courts of equity as a species of trade. Hence the
legal relations existing between two or more persons interested
in such a right is that of a qualified partnership, and the reme-
dies relating to a mining partnership are available for the asser-
tion or violation of any right arising out of it." '" A pirospector
and a hotel keeper agreed in writing " to share equal in any
mine which we may buy or find from this date. I, B., offset
my time against my board with M." It was held that this
made them tenants in common of any mine bought at their
common expense, or discovered and located pending this wa-it-
ten agreement, and while it was performed by M. M. having
failed, he went out of the hotel business, and did not and could
not board B. It was also held that he was not entitled to any in-
terest in mines purchased by B. with his own individual
money.^^ A contract, to work a mine, pay one>-half of the ex-
penses, and receive one-half of the product for the labor, does
not make a mining partnership; it is simply a contract for ser-
vices.^* So where A. agreed with B. that if the latter would
go to a certain county and produce a paying quartz mine, A.
would pay his expenses and big wages, and if the mine proved
to be a paying one, would give him, in addition, an interest in
it, this was also held to be a mere contract of hiring and not a
mining partnership."^ Merely agreeing to work a mine to-
gether constitutes those thus agi'eeing merely mining partners,
whether they own the mine "*' or only a right to work it.'^ So an
association of persons merely for the purpose of operating mines
and smelting works at a certain place is merely a mining part-
nership."* An agreement by four persons to secure a lease to
a certain mining property, to work it jointly, each to have a
one-fourth interest, and to share the expenses and profits equally,
constitutes a mining partnership, and is not disisolved by the
22 Smith V. Cooley, 65 Cal. 46 ; 2 26 Charles v. Eshleman, 5 Colo.
Pae. Rep. 880. 107; Nolan v. Lovelock, 1 Mont.
23 Miller v. Butterfield, 79 Cal. 224.
G2; 21 Pac. Rep. 543. 27 Manville v. Parks, 7 Colo. 128;
24 Stuart V. Adams, 89 Cal. 367; 2 Pac. Rep. 212; Harris v. Lloyd,
26 Pac. Rep. 970. 11 Mont. 390; 28 Pac. Rep. 736.
25 Berry v. Woodburn, 107 Cal. 2s Hioojins v. Armstrong, 9 Colo.
504; 40 Pac. Rep. 802. 38; 10 Pac. Rep. 232.
PARTNERSHIPS. 345
sale of his share by one of their number.-^ So the same is tnie
if they jointly employ a manager to run the mine and account
to them for the proceeds of it.^*^ So where one individual owned
seven-eighths of a mine and another the remaining eighth, and
the latter worked the mine, practically excluding the former,
except inviting him to take part as a worker simply; it was
held that they constituted a mining partnership under a statute
providing that " those owning a majority of the shares or in-
terests in a mining partnership have the right to control its
methods of working," and that the former was entitled to an
injunction restraining the latter from working the mine, except
as he should direct. ^^ Where a statute provided if two or more
persons should own or acquire a mining claim for the purpose
of working it and extracting the ore therefrom; and if they
should actually engage in working the mine, the transaction
should constitute a mining partnership ; it was held that where
one individual owned three-fourths and another one-fourth in-
terest in a mining claim, and the latter had alone worked the
mine, that there was no mining partnership created.^" So
taking a mortgage on a. mine and the mining tools, the mort-
gagor to remain in possession, and at the time of each " clean
up " the proceeds to be applied to pay the running expenses and
the mortgage debt, will not make a mining partnership.^^
§318. Promoters — ^ prospectors.
Promoters are not jjai'tnersi; ^* nor, generally, are provis-
ional subscribers to^ a proposed partnership."^ Nor are pros-
29 Meagher V. Reed, 14 Colo. 335 ; 33 Chungkee v. Davidson, 102
24 Pac. Rep. 681; 9 L. R. A. 455. Cal. 188; 36 Pac. Rep. 519.
30 Slater v. Haas, 15 Colo. 574 ; 34 Doubleday v. j\Iuskett, 4 Moo.
25 Pac. Rep. 1089; Lyman v. and P. 750; 7 Ring. 110; 9 L. J.
Schwartz, 13 Colo. App. 318; 57 (os) C. P. 35; Atwood v. Small, 7
Pac. Rep. 735. R. and C. 390; Higgins v. Hopkins,
31 Hawkins v. Spokane, etc.. Co., 3 Exch. 163; 18 L. J. Exch. 113; 6
2 Idaho 970; 28 Pac. Rep. 433; Ry. Cas. 75; Wilson v. Holden (oth-
Hawkins v. Spokane, etc., Co., 3 erwise Bailey v. Haines), 15 Q. B.
Idaho — ; 33 Pac. Rep. 40. 533; 19 L. J. Q. B. 73; 14 Jur. 835;
3^ Anaconda, etc., Co. v. Butte, Sylvester v. ;McCuaig, 28 Up. Can.
etc., Co., 17 Mont. 519; 43 Pac. Rep. C. P. 443.
924. 3.5 Dickinson v. Valpy, 10 B. and
346 OIL AND GAS.
peetors', joining in a joint enterprise strictly partners; and their
transactions are not governed by the law of strict partnership."''
§319. Life of mining partnership — dissolution.
A mining partnership will continue for the length of time
agTeed npon, or so long as the parties act together as a partner-
ship. If no limit is fixed in the articles of agreement, it is de-
terminable, under equitable restrictions, at pleasure ; but tlie
determination cannot defeat rights accrued under it while it
was in force.^' So if the partnership sell or otherwise dispose
of all its property it is by the act of sale or disposition dis-
solved.^^ Thus where a co-partnership was formed to drill a
gas well and supply its members with gas ; and at the request of
the defendant it disposed of its gas well to a third party, and
the defendant agreed to furnish gas to its members at certain
schedule prices, it was held that the sale of the property of the
corpartnership worked the dissolution thereof, and that the indi-
vidual members had not such a community of interest as to en-
title them to sue jointly or as partners for the breach of the
contract.^^ Quarrels and dissensions among the members of a
partnership to an extent which prevents the harmonious working
of the joint enterprise, is good ground for the dissolution of the
partnership; and pending the action for a dissolution a receiver
should be appointed for the partnership ; for the court cannot
put 'one partner or set of partners in ]30Ssession tO' the exclusion
of the other partner or set of partners.*" In an action for a
dissolution of a mining partnership the court will presume that
all the partners have an equal share ;'*^ and if it appear that one
C. 128; 5 M. and Ry. 126; 8 L. J. 183; Thompson v. Bowman, 6 Wall
(OS) K. B. 51; Fox v. Frith, 10 316; Kennedy v. Porter, 109 N. Y.
M: and W. 131; Car and M. 502; 11 526; 17 N. E. Rep. 426; Theriot v.
L. J. Ejith. 336. Michel, 28 La. Ann. 107.
36 Boucher v. Mulverhill, 1 Mont. so Pennville, etc., Co. v. Thomas,
306. 21 Ind. App. 1 ; 51 N. E. Rep. 351.
""Lawrence v. Robinson.. 4 Colo. ^oChilders v. Neeley, 47 W. Va.
567. 70; 34 S. E. Rep. 828; 49 L. R. A.
"8 Wells V. Ellis, 68 Cj\1. 243; 468.
Pae. Rep. 80; Blaker v. Sands, 29 4i Clark v. Brown, 83 Cal. 181;
Kan. 551; Wilson v. Davis, 1 Mont. 23 Pac. Rep. 289.
PARTNERSHIPS. 347
partner disposed of his interest it will be presumed that the
purchaser became a member of the partnership, and was as much
so as his vendor.*"
§320. Partition and accounting works a dissolution.
A member of a mining partnership cannot have a partition
of the mining property without a dissolution of the partnership ;
nor can he have an accounting without the same result.*^
§321. Majority control.
In, a mining partnership the majority in interest in the
proi>erty control tlie enterprise, and may bind the property by
contracts ^ivithin the legitimate scope of the business; and all
the partners will be bound by their acts.** Such would not be
the case, however, if the object of the partnership was pei-verted
and a business entered upon not within its legitimate scope.*^
§322. Power of partner in mining or oil enterprise.
Partnerships, whether mining partnerships or ordinary part^-
nerships, are not commercial or trading partnerships; and ono
partner does not have the power to* bind the partnership that ho
would have if they were commercial or trading partnerships.*"
He cannot bind the partnership except upon such contracts as
are usual and necessary in the ordinary prosecution of the work,
unless expressly authorized.*^ There is no presumption that
he can bind the firm by tlie execution of a promissory note ; and
to render such an instrument binding on the firm, his power to
bind it must be shown. This is true even though he be the man-
42 Taylor v. Castle, 42 Cal. 367; Lovelock. 1 Mont. 224; Childers v.
Nisbet V. Nash, 52 Cal. 540. Of Neeley. 47 W. Va. 70; 34 S. E. Rep.
course no such a presumption would 828 ; 49 L. R. A. 4G8 ; Hawkins v.
prevail with respect to an ordinary Spokane, etc., Co.. 2 Idaho 970; 28
partnership. Pac. Rep. 433.
43 Nisbet V. Nash, 52 Cal. 540 ; 45 Childers v. Neeley, supra.
Clark V. Ritter, 59 Cal. 609. 46 Jones v. Clark, 42 Cal. 180.
44 Dougherty v. Creary, 30 Cal. 47 Jones v. Clark, supra.
290; 89 Am. Dec. 116; Nolan v.
348 OIL AND GAS.
aging partner or agent of the firm/^ But if a partner gives a
promissoiy note for money loaned the partnership, the person
loaning may usually recover for the amount loaned from the
partnership', if he can show that it was used for the legitimate
purposes of the partnership; but the cause of action is not based
upon the note — the action is for money paid to the partnership
use, and only so much can be recovered as was used by the part-
nership, at least this is true for the purpose of reimbursing
the partner out of the partnership assets who signed the note
and had it to pay.*^ One partner cannot borrow money upon
the faith of the piartuership credit, even upon the most urgent
occasions,^" unless expressly authorized so to do, or such is the
usage ; ^^ and such authority must be more than inferential — it
must be specific.^^ Money borrowed by a partner without au-
thority, and accepted and used by the partnership, or used with-
out any specific act of acceptance, may be recovered from such
partnership.^^ But one partner has power to bind the corpo-
ration by buying materials to be used in its legitimate business,
such as tools, fuses, powder, and the like, or in selling its prod-
ucts. So the suj>erintendent of a mine may purchase such arti-
cles as are necessary for the conduct of the mine in the usual
48 Skillman v. Lachman, 23 Cal. man Mining Co., 4 D. G. M. and G.
199; Dickinson v. Valpy, 10 B. and 19; 24 L. J. Ch. 41; 18 Jur. 710; 23
C. 128; Brown v. Kidger, 3 H. and L. T. (os) 200; 2 W. R. 543.
N. 853; Jones v. Clark, 42 Cal. 180; so Hawtayne v. Bourne, 7 M. and
Decker v. Howell, 42 Cal. 636; W. 595; 10 L. J. (N. S.) Exch.
Charles v. Eshelman, 5 Colo. 107; 224; 5 Jur. 118; Sims v. Brittain,
Manville v. Parks, 7 Colo. 128; 2 4 B. and A. 375; 2 N. and M. 594;
Pac. Rep. 212; Higgins v. Arm- Randall v. Merideth, 76 Tex. 669;
Ftrong, 9 Colo. 38; 10 Pac. Rep. 13 S. W. Rep. 576.
232; Judge v. Braswell, 13 Bush. si Rieketts v. Bennett, 4 C. B.
69; 26 Am. Rep. 185; Shaw -. Mc- 686; 17 L. J. (N. S.) C. P. 17; 11
Gregory ,'•105 Mass. 96 (a quarrying Jur. 1062.
firm); Pooley v. Whitmore, 10 52 Burmester v. Norris, 21 L. J.
Heisk. 629; 27 Am. Rep. 733 ; Green- (N. S.) Exch. 43; 6 Exch. 796;
slade V. Dower, 7 B. and C. 635: 1 17 L. T. 232; Randall v. Merideth,
M. and Ry. 640; 6 L. J. (os) K. B. 76 Tex. 669; 13 S. W. Rep. 576.
155. s:! Tretj^ven v. Bourne, 6 M. and
49 Brown v. Kidger, 3 H. and N. W. 461; 9 L. J. (N. S.) Exch.
853; 28 L. J. Exch. 66; in re Ger- 290; 4 Jur. 747.
PARTISrERSIIIPS.
349
manner, without expiess authority.^* But one partner cannot
bind liis partnership by the employment of an attorney to pro-
tect the mine's interest,^^ unless, perhaps, in a case of emergency
where he had no time to consult his partners. Yet one partner
may bind his firm by agreeing to pay for labor in the partnership
enterprise,^" unless tliere is an express agreement between the
partners that he should have no such power and of which the em-
ployed person had due notice at the time of the employment. ^^
The power to bind the partnership by a purchase does not ex-
tend so far as to authorize a partner of a firm engaged in operat-
ing coal lands to purchase additional coal lands ; for it cannot
be said that such power falls within the scope of the partnership
business.^* Mining partnerships, in the strict meaning of the
term, except so far as is the general usuage of persons engaged in
similar pursuits, or the particular company has established a
different iiile, are governed by the law of ordinaiy partner-
ships."** These rules are applicable to oil or gas partnerships
formed for the purpose of developing oil or gas lands or operat-
ing gas or oil wells.*^°
Ri Stuart V. Adams, 89 Cal. 367 ;
26 Pac. Rep. 970; Roberts v. Eber-
hart, 1 Kay. 148; 23 L. J. Ch. 201;
22 L. T. 253; 2 W. R. 125.
55 Charles v. Eshleman, 5 Colo.
107.
56 Burgan v. Lyell, 2 Mich. 102 ;
55 Am. Dec. 53 ; Potter v. Moses, 1
R. I. 430; Nolan v. Lovelock, 1
Mont. 224.
57 Nolan V. Lovelock. 1 Mont. 224.
58 Judge V. Braswell, 13 Bush.
69; 26 Am. Rep. 185. Nor to the
development of a mine to which he
did not assent. Chase v. Savage,
etc., Co., 2 Nev. 9.
50 Jones V. Clark, 42 Cal. 180.
6 Childers v. Neeley, 47 W. Va.
76; 34 S. E. Rep. 828; 49 L. R.
A. 468. Same points noted above
are made in this case. See also
Ervin v. Masterman, 16 Ohio Cir.
Ct. Rep. 62; 8 Ohio Dee. 516; Baker
V. Brennan, 12 Ohio C. D. 211; 22
Ohio C. C. 241.
Several persons entered into a
written agreement to sink a gas
well, each to pay a certain sum
which was stated in the agreement.
One of their number was author-
ized to let the contract for the well,
which he did. The funds thus sub-
scribed were exhausted in the work,
and no gas found. Some of the
subscribers increased their sub-
scriptions, and the well sunk deep-
er, but no gas found. It was held
that those who did increase their
subscriptions were not liable beyond
the amount of such subscriptions.
Clark V. Rumsey. 59 N. Y. App.
Div. 435; 69 N. Y. Supp. 102; 52
N. Y. Supp. 417.
350 OIL AND GAS.
§323. Partner's lien.
A partner, whether he be a member of a mining partnership ®*
or an ordinary partnership, who advances more than his share
of money to operate or develop the mine, or the gas or oil lands,
has a lien on his partner's share to the extent of his over-advance-
ment, on final acconnting.**' And where the partners are as-
signees of a lease, the same rule prevails, although the assigTi-
ment be void, because not recorded according to the requirements
of a statute.*^^ Tenants in common have a like lien.*^* Even
though a note be given individually for the partnership indebt-
edness, the lien is not lost.**^ If the partnership property be
divided, the partner's lien is lost. And this was held tnie where
the oil pumped was run into tanks of a pipe line company,
and separate certificates of the amount of each partner was given
him by the pipe line company, as per agi'eement; for
in that instance the pipe line company was simply the
agent of the partners to make the division.*'*' So if a
joint certificate of the amount received be issued^ and one of
the partners sell his share in it, he will lose his lien, especially
if there is an agreement each may dispose of his share.*'^ Where
two partners excluded their fellow partner and leased the mine,
it was held that the latter had a lien on the ore mined by the
lessee for his share, although not on ore mined before tlie lessee
acquired possession of the mine.*'^
§324. Liability of incoming partner.
An incoming partner in an ordinary partnersliip is not per-
sonally liable' for the debts^ of the partnership created before
61 Morganstern v. Thrift, 66 Cal. es Ervin v. Masterman, supra.
577 ; 6 Pac. Eep. 689. e4 Ervin v. Masterman, supra.
62Errin v. Masterman, 16 Ohio es Brown v. Beecher, 120 Pa. St.
Cir. Ct. Rep. 62; 8 Ohio Dec. 516; 590; 15 Atl. Rep. 608.
Childers v. Neeley, 47 W. Va. 70; 66 Childers v. Neeley, supra.
M S. E. Rep. 828; 49 L. R. A. 468; 6 7 Ervin v. Masterman, supra.
Biirdon v. Barkas, 3 Giff. 412; 31 6s Q. V. B. Mine Co. v. First Na-
L. J. Ch. 521; 8 Jur. (N. S.) 130; tional Bank, 95 Fed. Rep. 23; 36 C.
5 L. T. 573 ; Duryea v. Burt, 28 Cal. C. A. 633.
569.
PARTNERSHIPS. 351
his connection with it ; imless he agreed to be bound for them."®
But a purchaser of a partner's share in a mining partnership
takes it subject to the remaining partner's lien for moneys ad-
vanced, unless he is a purchaser in good faith, without notice,
and for a valuable consideration. It will be presumed he had
notice of the lien at the time he made the purchase ; because
the existence of the partnership puts him on notice. ^° iVnd
such new purchaser is liable for the debts of a mining partner-
ship before he became a member ; for his admission to the firm
did not dissolve the firm, it continuing the same as it was be-
fore, — he simply taking his vendor's place.^^ His liability
is for the entire amount of the indebtedness.^"
§325. Each partner liable for all partnership debts.
In a mining partnership, a, partner is liable the same as in
an ordinaiy partnership — each partner is personally liable for
the entire indebtedness of the firm/^
§326. Limited partnerships.
Statutes have been enacted providing for limited partner-
ships, which are made applicable to mining adventures. It does
not fall wdthin the scope of this volume to discuss the law re-
lating to limited partnerships, and therefore no farther notice
will be taken of such statutes or decisions relating to them.'^*
6fi Patrick v. Weston, 22 Colo. 45; Contra, Patrick v. Weston, 22 Colo.
43 Pac. Rep. 446; Shireff v. Wilks, 45; 4.3 Pac. Rep. 446.
1 East 48; Babcock v. Stewart, 58 t2 Stuart v. Adams, 89 Cal. 367;
Pa. St. 179; Wright v. Brosseau, 26 Pac. Rep. 970.
73 111. 381; Waller v. Davis. 59 Ta. t.3 Stuart v. Adams, 89 Cal. 367;
103; 12 N. W. Rep. 798; Guild v. 26 Pac. Rep. 970.
Belcher, 119 Mass. 257; Fagan v. 74 Pennsylvania Act of June 2,
Long, 30 Mo. 222; Brown v. Beech- 1874. P. L. 271; English Acts, 25
er, 120 Pa. St. 590; 15 Atl. Rep. and 26 Vict. c. 89; 30 and 31 Vict.
60S. c. 131; 33 and 34 Vict. c. 104; 40
The retiring partner will con- and 41 Vict. c. 26; 42 and 43 Vict,
tinue to be liable for the old debts, c. 76; 43 Vict. c. 19; 46 and 47
the same as if he had not retired. Vict. c. 30 ; 49 Vict. c. 23 ; 53 and
70 Duryea v. Burt, 28 Cal. 569. 54 Vict. cc. 62. 63, 64 ; 56 and 57
71 Jones V. Clark, 42 Cal. 180; Vict. c. 58; and 61 and 62 Vict. c.
352
OIL AND GAS.
26. See Carter v. Producers, etc.,
Oil Co., 164 Pa. St. 463; 30 Atl.
Rep. 391; Ferguson v. Wilson, L. 11.
2 Ch. App. 77; 15 W. R. 27; Hunt's
case, 37 L. J. Ch. 278; 16 W. R.
472; Weston's case^ L. R. 4 Ch.
App. 20; 38 L. J. Ch. 49; 19 L. T.
337; 17 W. R. 62; Gilbert's case,
L. R. 5 Ch. App. 559; 18 W, R.
938; Lumsden's case, L. R. 4 Ch.
App. 31; 17 W. R. 65; Gumming
V. Piescott, 2 Y. and G. Exch. 488:
Snell's case, L. R. 5 Ch. App. 22;
Poole V. Middleton. 29 Beav. 646;
9 Jur. (N. S.) 1262; 4 L. T. 631,
W. R. 758; Nation's case, L. R.
3 Eq. 77: 36 L. J. Ch, 112; 15 L. T.
308; 15 W^ R. 143.
CHAPTER XVI.
MECHANIC'S LIENS.
§327. Lubricating oil.
§328. Labor or material must be furnished under a contract.
§329. For what material furnished a lien may be obtained.
§330. For what labor a lien may be obtained.
§331. Overseer, custodian or superintendent entitled to a lien.
§332. Upon what interest in land lien may be acquired.
§333. Lien on oil well.
§334. Forfeiture of lease.
§335. Retroactive effect.
§336. Priority of liens.
§337. Notice of claim of lien. — Description of land.
§338. Assignment of claims.
§339. On plant of public gas company.
§340. Oil refinery. — Paraffine works.
§327, Lubricating oil.
Oil furnished with which to oil machinery used in a mine or
manufactory does not enhance the value of the mine or manufac-
toiy, nor add any value to it; so that a person furnishing oil of
that kind cannot obtain a lien by virtue of the terms of a statute
giving lien for material furnished such structures.^
§328. Labor or material must be furnished under a contract.
The foundation of the right to secure a lien for labor per-
formed or material furnished must be a contract with the owner
of the land upon which the lien is sought to be enforced ; and if
there does not exist such a contract exp'ress or implied, the per-
son claiming it must fail." A contract with one not the o\vner
1 Standard Oil Co. v. Lane, 75 Colo. 187; 60 Pac. Rep. 354; 48 L.
Wis. 63G; 44 N. W. Rep. 644; 7 L. R. A. 340; Rico, etc., Co. v. Mus-
R. A. 191. grave, 14 Colo. 79; 23 Pac. Rep.
2Jurgenson v. Diller, 114 Cal. 458; Murtland v. Callihan, 2 Pa.
491; 46 Pac. Rep. 610; Wilkins v. Super. Ct. Rep. 340; 38 W. N. C.
Abell, 26 Colo. 462; 58 Pac. Rep. 512.
612; Davidson v. Jennings, 27
353
354 OIL AND GAS.
or his agent does not bind the land or the improvements upon
it ; nor entitle a laborer to a lien for work done for a person he
did not knoAV to be the owner, and not to be working the mine
as a representative of the owner.^ So a laborer employed by the
owner's liusband and another, who was not the wife's agent, and
upon the assurance of the wife that her husband wanted the
mine worked, and he woukl see that he was paid, is not entitled
to a lien as against the wife under a statute giving a laborer a
lien for work done on real estate under a contract with the
owner of it.* So a laborer working on a mine for one who has
ousted the true owner can acquire no lien.^ Where the owaier
of a mine entered into a contract with an operator to operate
the min-e and make certain improvements on it, with the
privilege of buying it, a certain percentage of the pro-
ceeds to be paid him, and to be credited on the pur-
chase price in case the operator purchased the mine; and
if he did not pay, the improvements and payments to be for-
feited, which was in fact done and the mine turned back ; it was
held that the operator was the " agent " of the owner, and per-
sons working for him or furnishing him materials for use in
the mine were entitled to a lien.® The amount to be paid for
services need not be definitely agreed upon, if there is an agreer
ment to pay.'^
§329. For what material furnished a lien may be obtained.
Under the California statute the material furnished must be
used on the mine to entitle the material man to a lien for its
value. ^ So the vendor of machinery for boring wells to a con-
3 Jurgenson v. Diller, supra. v. Murray, 12 Mont. 545; 31 Pac.
4 Folsom V. Cragen, 11 Colo. 205; Rep. 550. But see Maher v. Shull,
17 Pac. Rep. 515. 11 Colo. App. .322; 52 Pac. Rep.
5 Idalto Gold Mining Co. v. Win- 1115, where a Hen was enforced;
chell, 3 Idaho — ; 59 Pac. Rep. 533. and so Hines v. Miller, 122 Cal
6 Eaman v. Bashford (Ariz.), 37 517: 55 Pac. Rep. 401. None en
Pac. Rep. 24. See a similar case forced in Skym v. Weske. etc., Co
where the operator was considered (Cal.), 47 Pac. Rep. 110.
to be the tenant, and therefore no 7 Bewick v. Muir, 83 Cal. 373; ?3
lien accrued. Jordan v. Myers, 126 Pac. Rep. 390.
Cal. 505; 58 Pac. Rep. 1061; Block s Bewick v. Muir, 83 Cal. 373,
ilECIIANIc's I.IEXS. 355
tractor sinking such wells is not entitled to a lien on the well he
bores for such machinery's price, the machinery not being in-
tended to become a part of the well, and in fact not becoming
so.** But one furnishing pipe for an oil well is entitled to a
lien ;^*' and so one fvimishing material for an oil tank.^^ One
furnishing cars to be used in a coal mine is entitled to a lien
under a statute giving any one a lien furnishing " any material,
fixtures, engine, boilers, or machinery for any building or im-
provement on land." " A going coal mine is not merely a hole
in the ground: It is made up of shafts, drifts, slopes, engines,
machinery, platforms, cars, tracks, scales, etc, and taken as a
thing, if not a building, it is unquestionably an improvement,
and an improvement on land."^^
So a lien may be had for tools furnished to be used in a mine
in California ;^* or for materials furnished to build a dwelling
house on the claim,^^ even though built, in case of a shop, upon
land contiguous to the mine if for the use of such mine, and a
part of the mining company's property. The shop may be sold
with the mine for the pui-pose of enforcing the lien." Where a
statute gives a lien on a mine for " timbers or other material to
be used in the mine " furnished by a material man, a lien may
be taken for powder, steel, and candles furnished to be used in
it.^^ But a boiler, pump, engine, and machinery not situated
in or in any way connected A\ath the improvement, or a coal
mine lease, used only for the purpose of drawing up coal and
2.3 Pac. Rep. 390; Hamilton v. Del- i4 Malone v. Big Flat, etc., Co.,
hi, etc., Co., 118 Cal. 148; 50 Pac. 76 Cal. 578; 18 Pac. Rep. 772. A
Rep. 378. pump fastened to works furnish a
9 Jareki Mfg. Co. v. Struther, 8 good claim for a lien. Goss v. Hel-
Ohio Cir. Dee. 5; 14 Ohio C. C. bing, 77 Cal. 190; 19 Pac. Rep. 277.
400. 15 Dickenson v. Bolyer, 55 Cal.
it>Devine v. Taylor, 12 Ohio Cir. 285.
Ct. Rep. 723; 4 Ohio Cir. Ct. Dec. le Keystone Mining Co. v. Gal-
248, 1 Ohio Dec. 153; Haskell v. lagher, 5 Colo. 23. Lumber fur-
Gallagher, 20 Ind. App. 224; 50 N. nished for an oil refinery. Short
E. Rep. 485; 67 Am. St. Rep. 250. v. Miller, 120 Pa. St. 470; 14 Atl.
11 Parker Land & Oil Co. v. Red- Rep. 374.
dick, 18 Ind. App. 616; 47 K E. i7 Keystone Mining Co. v. Gal-
Rep. 848. lagher, supra.
13 Central Trust Co. v. Sheffield,
etc., Co., 42 Fed. Rep. 106.
356 OIL AND GAS.
water, will not fasten a lien on tlie mine/^ One furnishing
natural gas to run an engine used in drilling an oil well is such
a material man as gives him a lien for it as furnished/®
§330. For what labor a lien may be obtained.
Aside from the question who or what employee is entitled
to a lien, and not discussing the right to a lien by an overseer,
a superintendent, a manager or foreman, we Avill discuss in this
section what services will entitle an employee or servant to a
lien for labor rendered ; premising our discussion by the remark
that local statutes wholly govern the right. One working upon
a house situated on a mining claim has been held entitled to a
lien on the whole mine."** So of a shop.^^ A statute providing
that " all persons performing labor for carrying]; on any mill
shall have a lien on such mill for such work or labor," gives a
teamster a lien who hauls quartz to a quartz mill.'" One work-
ing on an oil tank, having a capacity of two or three hundred
barrels, placed on a foundation built expressly for it, out of
earth and lumber on the land of the person ordering it, is en-
titled to a lien under the general mechanic's lien law giving a
lien upon any structure built upon the land, such oil tank being
a fixture."^ A statute giving a lien for work performed in
making shafts, drifts, etc., for a mine does not give a. lien for
work performed in building a wagon road.^* A blacksmith
sharpening tools and drills and making pipes, and other neces-
sary and like work on a mine, is entitled to a lien on the mine ;
18 Meistrell v. Reach, 56 Mo. App. 22 Jn re Hope Mining Co., 1 Savvy
243. 710.
19 Haskel v. Gallagher, 20 Ind. 23 Parker Land & Oil Co. v. Red-
App. 224; 50 N. E. Rep. 485; 67 dick, 18 Ind. App. 616; 47 N. E.
'Am. St. Rep. 250. Rep. 848; Standard Oil Co. v. Sow-
20 Dicl^nson v. Bolyer, 55 Cal. den, 55 Ohio St. 332 ; 45 N. E. Rep.
285. See Hamilton v. Delhi Min- 320; 36 Wkly. L. Bull. 306; 37
ing Co., 118 Cal. 148; 50 Pac. Rep. Wkly. L. Bull. 3; Contra Seiders.
378. etc.. Works v. Lewis, etc.. Co., 7
21 Keystone Mining Co. v. Gal- Pa. Dist. Rep. 278; 21 Pa. Co. Ct.
lagher, 5 Colo. 23; Meistrell v. Rep. 80.
Reach, 56 Mo. App. 243. 24 Williams v. Toledo Coal Co., 25
Ore. 426; 36 Pac. Rep. 159.
mechanic's liens. 357
for such tools and machinery used in developing a mine are to
he considered, while so used, as affixed to it under the Code of
Califomia.^^ In California a contractor for tlie labor of others
in a mine at a fixed rate for each man per day is entitled to a
lien for their labor."" One hauling pipe to be used in an oil
Avell is entitled to a lien.^'^ But a statute giving a lien upon all
tools, machinery and stock located in or about a mill or shop, to
all labors employed in and about it, in ease of insolvency, will
not give a lien upon a boiler, engine, shafting, beam, derrick,
reel, ropes and drill, when put in place and action, but not con-
nected with any mill or shop.'*
§331. Overseer, custodian or superintendent entitled to a lien.
Under the statute providing that " every person performing
labor " for a mining company doing business in the State shall
be entitled to a lien on all its property, taking precedence over
all other debts or judgments against the company, an overseer
and custodian of the mine and property of such a company is
entitled to a lien for his services.'^ So it has been held that a
superintendent of a mine rendering service in planning and
superintending development of mines, and in planning and sup-
erintending the erection of a mill and machinery for them, per-
formed work and labor in or upon the property of a mining
company, such as entitled him to a lien for his services, but not
for services in keeping books and disbursing funds.^" Of a
foreman it is said : " He certainly did work in the mine,
though not witli his hands, and it is clear that tlie direct ten-
dency of his work was to develop the property. We think the
foreman of work in the mine is as fully secured by the law as
the miners who work under his directions." ^^ Of a similar in-
25Malone v. Big Flat, etc., 76 29 McLaren v. Byrnes, 80 ]\Iicli.
Cal. 578; 18 Pac. Rep. 772. 275; 45 N. W. Rep. 143.
2<i Malone v. Big Flat Gravel Co., so Rara Avis' Gold & Silver Min-
76 Cal. 578; 18 Pac. Rep. 772. ing Co. v. Bouscher, 9 Colo. 385; 12
27 McEhvaine v. Hosey, 135 Ind. Pac. Rep. 433; Palmer v. Uncas
481; 35 N. E. Rep. 272. ' Mining Co., 70 Cal. 614; 11 Pac.
28 Ibid. Rep. 666.
siCapron v. Strout, 11 Nev. 304.
358 OIL AND GAS.
stance the Supreme Court of the United States said : " He
was not the general agent of the mining business of the plaintiff
in error. That office was filled by Patrick. He was not a
contractor. The services rendered by him were not of a pro-
fessional character, such as those of a mining engineer. He
was the overseer and foreman of the body of miners who per-
formed the manual labor upon the mines. He planned and
personally superintended and directed the work, with a view to
develop the mine and make it a successful venture. He appears
from the findings, to have performed services similar to those
required of the foreman of a gang of track hands upon a rail-
road, or a force of mechanics engaged in building a house.
Such duties are very different from those which belong to the
general superintendent of a railroad, or the contractor for erect-
ing a house. Their j>erformance may well be called work and
labor ; they require the personal attention and supervision of
the foreman ; and occasionally in an emergency, as for example,
it becomes necessary for him to assist with his own hands.
Such duties cannot be performed without much physical exer-
tion, which, while not so severe as that demanded of the work-
men under the control of the foreman, is nevertheless really
work and labor. Bodily toil, as well as some skill and knowl-
edge in directing the work, is required for their successful per-
formance. We think that the discharge of such duties may
well be called work and labor, and that the District Court right-
fully declared the person who performed them entitled to a
lien, under the law of the Territory." ^" So the superintendent
of the construction of a gas pipe line, having full supervision of
the digging of the trenches, the laying of gas pipes, etc., with
full authority to hire and discharge employees, being required
• to walk along the pipe lines, test the wells, which required him
to handle wrendies and tools for short periods of time, was held
entitled to a lien under a statute giving " laborers and em-
ployees " liens on the property of an insolvent corporation.^^
On the other hand it has been held that a general manager and
32 Fla.^staflf. etc., Co; v. Cnllins, Stryker v. Cassidy, 76 N. Y. 50.
104 U. S. 176, afRrming Cullins v. ss Pendergast v. Yandes, 124 Ind.
Flagstaff, etc., Co., 2 Utah 219; 159; 24 N. E. Rep. 724.
MECHANIC S LIENS.
359
superintendent of a mine who does not perform bodily toil is
not entitled to a lien upon it under a statute giving a lien to one
" who jierforms labor in any mining claim." ^*
§332. Upon what interest in land a lien may be acquired.
In Indiana the lien attaches only to the interest the person
against whom it is sought to enforce has in the land. This is
made so by the express words of the statute. It may be en-
forced against the lessee's interest, when the work is performed
for him ; but does not bind the lessor's interest.^^ In Missouri
a laborer for a mere licensee, to operate on land, does not get a
a lien on the land."''' In Montana the employee of a
leasehold cannot acquire a lien against the mining property. ^^
In Iowa he can f^ so in Pennsylvania,^® in Ohio,*" and in Mis-
souri. In the case of a mine, a lien does not attach to the in-
terest of the lessee if no minerals be found.*^
)333. Lien on oil well.
In Indiana a statute provided that " all persons, perfortaing
labor or furnishing material or machinery for erecting, altering,
repairing, or removing any house, mill, manufactory, or other
building, reservoir, system of waterworks, or other structure,"
3* Boyle V. Mountain, etc., Co. N.
M. ; 50 Pac. Rep. 347. Same result.
Smallhouse v. Kentucky, etc., Co., 2
Mont. 443.
35 Hopkins v. Hudson, 107 Ind.
191; 8 N. E. Rep. 91; St. Clair
Coal Co. V. Martz, 75 Pa. St. 384;
United Mines Co. v. Hatcher, 79
Fed. Rep. 517; 25 C. C. A. 46.
36 Springfield Foundry, etc., Co.
V. Cole, 130 Mo. 1; 31 S. W. Rep.
922, reversing 57 Mo. App. 11. So
in Oregon. Stinson v. Hardy, 27
Ore. 584; 41 Pac. Rep. IIG; former-
ly so in Colorado; Wilkins v. Abell,
26 Colo. 462; 58 Pac Rep. 612; Lit-
tle Valeria, etc., Co. v. Ingersoll, 14
Colo. App. 240; 59 Pac. Rep. 970;
Schweizer v. Mansfield, 14 Colo.
App. 236; 59 Pac. Rep. 843.
37Pelton V. Minah, etc., Co., 11
Mont. 281; 28 Pac. Rep. 310; Block
V. Murray, 12 Mont. 545; 31 Pac.
Rep. 550.
38 Mitchell V. Burwell, 110 la. 10;
81 N. W. Rep. 193.
39McElwaine v. Brown (Pa.);
11 Atl. Rep. 453; Thomas v. Smitfi,
42 Pa. St. 68.
■*o Acklin v. Woltermeier, 19 Ohio
C. C. Rep. 372; 10 Ohio C. D. 629.
41 Blindert v. Kreiser, 81 Wis.
174: 51 X. W. Rep. 324; Colvin v.
Weimer. 64 Minn. 37; 65 N. W.
Rep. 1079.
360 OIL AND GAS.
might liiive a mechanic's lien. It was held tliat this statute gave
a lien for work performed in drilling an oil well, and for natural
eras furnished the contractor as fuel with which to run the
engine by which power was supplied for drilling the well. It
was considered that the oil well, boilers, engine, shafting, beam,
derrick, reel, ropes and drill when put in place and action, in
drilling a gas well, constituted a '" structure " within tlie mean-
ing of the statute. " If such appliances for making a gas well
be a structure, it would seem that a completed oil well with all
its appliances, including the drilled hole in the earth, with it&
tubing, should also be regarded as within the meaning to which
the language of the statute may legitimately be expanded in the
application by the courts." *^
^ §334. Forfeiture of lease.
A lien for work and labor in putting up a structure for a
lessee on his lease, to be used in the operation of a gas and oil
well, is not impaired by the forfeiture of the lease, where the
lien attaches prior to the forfeiture, nor by the failure of the
lessee to drill a well in accordance with the terms of the lease,
where a statute provides that " where the owner has only a lease-
hold interest, or the land is incumbered by mortgage, the lien
so far as concerns the buildings erected by said lien holder is
not impaired by forfeiture of the lease for rent or foreclosure of
mortgage ; but the same may be sold to satisfy the lien and re-
moval within " a certain specified number of days after the
sale.*'
42 Haskell v. Gallagher, 20 Ind. v. Waltermier, 19 Ohio C. C. Rep.
App. 224; 50 N. E. Rep. 485; 67 372; 10 Ohio C. D. 629. Doubted
Am. St. Rep. 250; MeElwaine v. in Orth v. West & East Oil Co., 159
Hosey, 135 Ind. 481; 35 N. E. Rep. Pa. St. 388; 28 Atl. Rep. 180. In
272; Hoppes v. Bale, 105 la. 648; drilling a well to find minerals, and
75 N. W. Rep. 495 (a water well). no minerals were found, it was held
Contra, Omaha, etc., Co. v. Burns, that no lien attached to the lessee's
49 Neb. 229; 68 N. W. Rep. 492; interest. Colvin v. Weimer. 64
Vandergrift's Appeal, 83 Pa. St. Minn. 37; 65 N. W. Rep. 1079.
126; Devine v. Taylor. 12 Ohio Cir. 43 Montpelier. etc., Co. v. Stepheii-
Ct. Rep. 723; 1 Ohio Dec. 153; 4 son, 22 Ind. App. 175; 53 N. E.
Ohio Cir. Ct. Dec. 248. See Acklin Rep. 444. Unless the statute gives
MECIIA^sIC^S LIEXS. 3G1
§335. Retroactive effect.
A law giving a lien will not be so construed as to give a retro-
active effect. Thus where a statute did not give a lien against
a leasehold interest in the land, but was so amended as to give a
lien to laborers working for the lessee against the lessor's in-
terest in the land, it was held tliat the statute as amended did
not apply to work performed before it was amended.**
§336. Priority of liens.
Statutes giving mechanics and laborers liens often provide
that no lien on a structure shall have preference, when the
several holders contributed to the same results and their labors
all eontributod to it. In Ohio a statute provided that where
several persons obtained liens on the same " job," they should
have no priority among each other. It was held that the construc-
tion of an oil well was a " job," and all lien-holders thereon
w^ere on an equality.*^ In Michigan a miner's lien accrues as
the labor is performed ; and where labor has been performed
before the levy of a writ of attachment, the laborer is entitled to
priority over it, although he did not file his notice of a claim
until after the levy.*" But a mortgage recorded before the con-
tract for labor has been made takes precedence of tlie labor's
lien.*^ A statute may provide that a labor's or material man's
a lien holder the right to sell and 46 McLaren v. Byrnes, 80 ]Mich.
remove the fixtures he places upon 275; 45 X. W. Rep. 143; Peatman
the leased premises, he cannot do v. Centerville, etc., Co., 105 la. 1;
so, and his only remedy is' against 74 N. W. Rep. 689 (a judgment) ;
the premises and fixtures or real Standard Oil Co. v. Sowden, 55 Ohio
estate. Chicago Smokeless Fuel St. 332; 45 N. E. Rep. 320 (a mort-
Gas Co. V. Lyman, 62 111. App. 538. gage) ; Sicardi v. Keystone Oil Co..
44 United Mines Co. v. Hatcher. 149 Pa. St. 639; 24 Atl. Rep. 163;
79 Fed. Rep. 517; 25 C. C. A. 46; Trust v. Miami Oil Co., 10 Ohio C.
Gardner v. Resumption, etc., Co.. D. 372; 19 Ohio C. C. Rep. 727.
4 Colo. App. 271; 35 Pac. Rep. 674; 47 Folsom v. Cragen, 11 Colo.
Hunter v. Savage, etc., Co., 4 Nev. 205; 17 Pac. Rep. 515; Rawlins v.
153. New Memphis, etc., Co., 105 Tenn.
45Devine v. Taylor. 12 Ohio Cir. 268; 60 S. W. Rep. 206.
Ct. Rep. 723; 4 Ohio Cir. Ct. Dec.
248; 1 Ohio Dec. 153.
3G2 OIL AKD GAS.
lien shall take precedence of a prior recorded mortgage/^ The
lien attaches when the work is commenced or the material fur-
nished.*®
§337. Notice of claim of lien — description of land.
The notice of the lien, or of an intention to claim one, must
so describe tlie property upon which the lien is claimed as to
identify it, or the lien will be void.^" An incorrect description
of metes and bounds will render the notice invalid.^^ The pre-
cise words of the statute need not be followed; substantially
equivalent expressions will suffice.^^ Where a statute required
ainong other things, " the name of the owner or reputed o^vner,
if known, and also the name of the person by whom he was
employed," to be stated, a failure to insert in the claim a state-
ment by whom the claimant was employed renders it fatally
defective.'^^ But a statement that the claimant was employed
by the defendant company without naming the company's agent,
is sufficient.^* Where a statute requires " a statement of the
terms, time given, and conditions of the labor contract, and also
a description of the property to be cliarged with the lien suffi-
cient for identification," to be inserted in the claim, if there is
set forth in the claim the kind and number of days of labor per-
formed, the dates between which it was performed, with the
aggregate sum then due, and " that the terms of payment for
said labor were cash, as soon as said labor was performed," and
a description of the property by name and the district, where it
is well kno^vn, that will be sufficient.^^ Under the statute just
referred to as against the interest of one who enters and operates
4S Warren v. Sohn, 112 Ind. 213; si Fernandez v. Burleson, swpra.
13 N. E. Rep. 863. 52 Ascha v. Fitch (Cal.), 46 Pae.
49 Bristol, etc., Co. v. Bristol, Rep. 298; Bewick v. Muir, 83 Cal.
etc., Co., 99 Tenn. 371; 42 S. W. 373; 23 Pac. Rep. 390.
Rep. 19. 53 Ascha v. FHch, supra.
50 Fernandez V. Burleson, 110 Cal. 54 Malone v. Big Flat Gravel Co.,
164; 42 Pac. Rep. 566; Rico, etc., 76 Cal. 578; 18 Pac. Rep. 772.
Co. V. Musgrave, 14 Colo. 79; 23 55 Tredinnick v. Red Cloud, etc.,
Pac. Rep. 458; Tfedinnick v. Red Co., 72 Cal. 78; 13 Pac. Rep. 152.
Cloud, etc., Co., 72 Cal. 78; 13 Pac.
Rep. 152.
mechanic's LIEXS. 363
several claims as one mine, they may be treated as a single
claim, and declared upon as sucli.^*'
§338. Assignment of claims.
A claim, secured by a mechanic's lien, may be assigned ; and
the assi gnm ent, will carry the lien so that the assignee can en-
force it." And if the statute provide for a penalty and attor-
ney's fees, the assignee may also recover these.^^
§339. On plant of public gas company.
A lien may be acquired on the plant of a gas company fur-
nishing gas to a municipality for work and materials furnished
as readily as upon an entirely private concern. And the fact
that the public might be inconvenienced is not a bar to the en-
forcement of the lien.^*^ The entire plant of the company is
subject to the lien, including pipes laid in the streets of the
municipality and on the interest of the company in the prem-
ises.*^" By special agreement, one furnishing maehiner)^ for a
gas plant may retain a lien on the machinery he furnishes, for
its price, after it is affixed to the company's premises.*^^ And
even when it is held that a lien cannot be acquired upon the
5G Hamilton v. Delhi Mining Co., Water Co., 52 Fed. Rep. 43; Oconto
118 Cal. 148; 50 Pac. Rep. 378. Water Co. v. National Foundiy, 59
5-Malone v. Big Flat Gravel Co., Fed. Rep. 19; 7 C C. A. 603; Bris-
76 Cal. 578; 18 Pac. Rep. 772. tol Goodson, etc., Co. v. Bristol,
58 Mitchell V. Burwell, HO la. etc., Co., 99 Tenn. 371; 42 S. W.
10; 81 X. W. Rep. 103. Rep. 19; Rawlings v. New Mem-
59 Wood V. Holly Mfg. Co., 100 phis, etc., Co., 105 Tenn. 268; 60 S.
Ala. 660; 13 So. Rep. 948; Badger W. Rep. 206; Goss v. Helbing. 77
Lumber Co. v. :Marion, etc., Co., 48 Cal. 190; 19 Pac. Rep. 277; Light
Kan. 187; 30 Pac. Rep. 117; affirm- Co. v. Gill, 14 Pa. Co. Ct. Rep. 6;
ing 29 Pac. Rep. 476; Oconto Water McNeal, etc., Co. v. Howland, 111
Co. V. National Foundry, 59 Fed. N. C. 615; 16 S. E. Rep. 857, 20
Rep. 19; 7 C. C. A. 603; National L. R. A. 743. But see Eufaula
Foundry Co. v. Oconto Water Co., Water Co. v. Addystone Water Co.,
52 Fed. Rep. 43; Steger v. Artie 89 Ala. 522; 8 So. Rep. 25.
Refrigerator Co., 89 Tenn. 453 ; 14 ei Wood v. Holly Mf. Co., 100
So. Rep. 1087; 11 L. R. A. 580. Ala. 326; 13 So. Rep. 948.
60 National Foundry v. Oconto
364 OIL AND GAS.
premises of a gas company supplying a city with gas, a lien may
be retained on machinery sold conditionally to the gas com-
pany.^" Where a lien cannot he obtained on the plant itself,
because of the fact that the company has no interest in the
premises sufficient for a lien, and a statute gives the person fur-
nishing machinery a lien on such machinery and the right to
remove it, yet he cannot acquire a lien on the pipes in the street
connected with the plant, they not being subject to a lien ; for
the plant is an integer, and cannot be separated under a lien."'
Yet when a company was conducting a plant for a city, and gave
a trust deed on the machinery to the vendor of it, providing
that the machinery should not be considered as fixtures until
it was paid for ; it was held that public necessity required the
plant and the company's franchise, where it was in the hands of
a receiver, to be sold together, and that the trust deed sjiould
be a specific lien tliereon to the extent of the value of the ma-
chinery.''*
§340. Oil refinery — paraffine works.
An oil refinery is a building, within the meaning of that term
as used in a statute ; and a lien may be secured upon it by a
material man furnishing timbers for it.''^ And although the
several structures^ constituting the refinery consist of appliances
put up in the open air, and are not enclosed under a roof or shed,
yet a material man's lien for furnishing material for any one
of such appliances extends to the whole refinery.*'" Paraffine
works are part of a refinery."^
62 Holly Mf. Co. V. New Chester ee Titusville Iron Works v. Key-
Water Co., 48 Fed. Rep. 879. stone Oil Co., 130 Pa. St. 211; 18
' 63 Oconto Water Co. v. National Atl. Rep. 739; Linden Steel Co. v.
Foundry, ^9 Fed. Rep. 19; 7 C. C. Imperial Refining Co., 138 Pa. St.
A. 603. 10; 20 Atl. Rep. 867, 869.
64 McNeal Pipe, etc., Co. v. Wolt- 67 Sicardi v. Keystone Oil Co.,
man, 114 N. C. 178; 19 S. E. Rep. 149 Pa. St. 139; 24 Atl. Rep. 161,
109. 163.
65 Short V. Miller, 120 Pa. St.
470; 14 Atl. Rep. 374.
CHAPTER XVII.
MORTGAGES.
Art. 1. Mortgage of oil or mining property.
Art. 2. Mortgage of gas plant.
ARTICLE 1.
MORTGAGE OF OIL OR MINING PROPERTY.
§341. Leasehold may be mortgaged by lessee.
§342. Lessor may mortgage premises.
§343. Mortgage of oil or mining lease in Pennsylvania.
§344. Mortgagor may remove gas, oil and minerals.
§345. Llortgagor in possession.
§346. Mortgagee in possession.
§347. Mortgagee in possession, English rule.
§341. Leasehold may be mortgaged by lessee.
A leasehold estate may be mortgaged, even though it be an es-
tate only for years ; ^ and the same is true of a lease to take out
mineral, gas or oil; for such a lease gives a freehold interest
in the land." The mortgage must be recorded, according to
the registiy laws of the State where the lands leased lie ; and if
recording is necessary to the validity of an ordinary mortgage,
then a mortgage of a leasehold estate must be recorded.^ The
mortgagee is entitled to the benefit of any covenants in a lease,
as for a renewal; and if there be a renewal, his mortgage at-
1 Walton V. Cronly, 14 Wend. 63 ; 2 Heller v. Dailey, 28 Ind. App.
Astor V. Miller, 2 Paige Ch. 68; 555; 63 N. E. Rep. 490.
Astor V. Hoyt, 5 Wend. 603 ; Childs 3 Lester v. Hardesty, 29 Md. 50.
V. Clark. 3 Barb. Ch. 52; Broman
V. Young, 35 Hun 173.
365
366 OIL AND GAS.
taclies to the renewed lease."* Where the royalties on coal and
iron mined on the premises were to he paid hefore the coal or
iron was removed from the premises, it was held that the lessee
was entitled to be paid before the mortgagee of the lessee, out
of the fimds of the lessee's agents arising from a sale of coal
and iron and paid into court. The lessee w^as treated as a mort-
gagor in possession who was entitled to the rents and profits as
against the mortgagee.^ In Ohio it has been held that a real
estate mortgage, given bv the lessee, will not bind the leasehold
or the lessee's interest, because such a leasehold is not real estate
or an interest in the freehold; and the question was left oj'ien
whether a chattel mortgage would bind it.^ The same was also
held in ]^ew York.'^
§342. Lessor may mortgage premises.
A lessor may mortgage the premises leased, but the mortgage
will be subject to the terms of the lease, aside from the question
of accepting a mortgage without notice of such lease. The
mortgagee has only the rights of the mortgagor as against the
lessee, his assignee or sublessee.* Until default in the provi
sions of the mortgage, at least, the mortgagor, if in |X)Ssession,
is entitled to the rents and profits due under the lease, and the
mortgage is not a lien upon them." It makes no difference
whether the mortgage was executed before or after the date of
the lease ; payment to the mortgagor is good until the mortgagee
interferes." \Vliere the law of the State is that the mortgagee
4Slee V. Manhattan Co., 1 Paige « Hemphill v. Giles, 66 N. C. 512.
Ch- 48. 9 Bank of Ogdensburgh v. Arnold,
5 Childs 5. Hurd, 32 W. Va. 66 ; 5 Paige Ch. 38 ; Fitchburg, etc.,
9 S. E. Rep. 362. Corp. v. Melven, 15 Mass. 268; Long
6 Meridian, etc., Bank V. McConi- v. Wade, 70 Me. 358; Clarke v."
ca, 8 Ohio Cir. Ct. Rep. 442; 4 Ohio Curtis, 1 Gratt. 289; McKircker v.
Dee. 106. Hawley, 16 Johns. 289.
7 Broman v. Young, 35. Hun 173 ; lo Trent v. Hunt, 9 Exch. 14, 22 :
First National Bank v. Dow, 41 Edwards v. Woodbury, 1 McCray
Hun 13. 429; 3 Fed. Rep. 14.
MOKTGAGES. 3GT
shall not be entitled to take possession of the mortgaged prem-
ises prior to a foreclosure, the mortgagor may take a valid as-
signment of the rents and profits, and the assignee may enforce
his right to take them/^ In such a case the mortgagor is
entitled to the rents accruing until there has been a foreclosure,
a sale, and the title to the mortgaged premises has vested in the
purchaser. And where the lessee was the purchaser, but there
was a delay of several weeks after the sale before he received
his deed, during which a quarter's rent fell due, it was held that
the lessor (and mortgagor) was entitled to such rent/^ If the
mortgagee take a lease of the premises from his mortgagor, and
after\vards the equity of redemption be sold he can not insist,
as against the purchaser, that the rents be set off against the
mortgage debt/^ After a mortgage has been given, the mort-
gagor cannot make a lease that ^^dll be binding on the mort-
gagee.^'* If the mortgagee enter for breach of the condition of
the mortgage, and accept rent from the lessee, the latter be-
comes his tenant under a tenancy from year to year, and not
for the term as fixed by the lease.^^ But if he do not so accept
rent, he may treat the lessee as a trespasser.^" The lessee can
not compel the mortgagor to pay off the mortgage ; his remedy
being an ordinary action for damages, if he be dispossessed un-
der it by reason of its terms.^' But if the mortgagee take pos-
session in a State where no statute authorizes him to do so, on
default of the mortgagor, and he takes it by reason of tlio consent
of the latter, a verbal agreement, of the lessee to pay such mort-
gagee the rent imder the lease, does not continue the existing
tenancy, nor put him in the place of the lessor. If held valid at
all, it must be held to be a new agreement. ^^ If the lessee cov-
enants in the lease to pay the royalties to the person holding a
11 Syracuse City Bank v. Tallman, is Hughes v. Bucknell, 8 C. and
31 Barb. 201; Argall v. Pitts, 78 P. 566.
N. Y. 239. 16 Birch v. Wright, 1 T. R. 378;
12 Clason V. Corley, 5 Sandf. 447. Thunder v. Belcher, 3 East 449 ;
13 Scott V. Fritz, 51 Pa. St. 418. Rogers v. Humphreys, 4 Ad. and El.
See Taliaferro v. Gay, 78 Ky. 496. 299.
14 McDerniott v. Burke, 16 Cal. " Costigan v. Hastier, 2 Sch.
580; Russem v. Wanser, 53 Md. 92; and Lef. 160.
Henshaw v. Wells, 9 Humph. 568. isHcgsett v. Ellis, 17 Mich. 351.
3G8 OIJ. ANI> GAS,
mortgage on the premises, siicli person may maintain an action
against him to recover snch royalties, irrespective of the fact
that such lease is under seal, under the modem system of pro-
ceedure/^
§343. Mortgage of oil or mining lease in Pennsylvania.
In Pennsylvania statutes control the mortgaging of mining
leases. By the Act of April 27, 1855 "" it is declared " to bs
lawful for every lessee for term of years of any colliery, mining
land, manufactors^, or other premises, to mortgage his or her
lease or term in the demised jwemises, with all buildings, fix-
tures and maehineiy thereon, to the lessee belong [ing] and
thereunto appurtenant, with the same eifect. as to the lessee's
interest and title, as in the case of the mortgaging of a free-
^ hold interest and title as to lien, notice, evidence and privity of
payment." It also pro\'ides that the mortgage must " be in
like manner acknowledged and placed of record in the proper
county, together with the lease, and that such mortgage shall in
nowise interfere with the landlord's rights, privity or remedy
for rent, and such mortgages may be sued out as in other cases."
A subsequent Act (April 3, 1868) ^^ provides that " in all
cases of mortgages upon leasehold estates, the mortgagees shall
have the same remedies for the collection thereof which mort-
gagees of real estate have under the laws of this commonwealth."
A third Act (May 13, 1876,) --' provides " whenever a lease or
term of years shall have heretofore been or shall hereafter be
mortgaged under the Act of April 27, 1855, ... if the
lease shall be. recorded in the deed books of the proper county
before the e>xecution of the mortgage or shall thus be recorded
19 Central Trust Co. v. Berwind- appointed in a foreclosure suit, as
White Coal Co., 95 Fed. Rep. 391. against the mortgagee, on the
If the lease be taken after a mort- ground that he expended money to
gage has been placed on the prem- render them productive. G. B. Ming,
ises by the lessor, it is subject to Co. v. First National Bank, 95 Fed.
the mortgage, even though the mort- Rep. 35; 35 C. C. A. 510, affirming
gage was contested; and if its va- 89 Fed. Rep. 449.
lidity be sustained, he is not en- -o P. L. 369.
titled to claim the proceeds of the 21 p. L. 57^ gee. 1.
mine while operated by a receiver 22 p. L. 160.
MOKTGAGES. 369
at the time of recording tlie mortgage, such recording shall be
deemed a sufficient compliance with the requirements of the
Act with reference to recording such lease." And it also pro-
vides that a *' full distinct reference " shall " be made in said
mortgage to the book and page where the said lease is recorded,"
Under the first Act it has been held, in order to give priority of
the mortgagee over an execution creditor of the mortgagor, the
lease must be recorded with the mortgage.'^ And under this
statute, recording the mortgage with a copy of the lease, and
referring to the latter as recorded with a former mortgage, it
was held to be a substantial compliance with the act."* The
Act of 1868 applies to actions begun before it was enacted, to
enforce the oollecition of mortgages in the same manner as it
provides for.^^ Of course, all three statutes must be construed
in j}a7n materia.'^ The Act of 1855 applies to leases for oil
or gas, although enacted before either was discovered."^ The
mortgage and lease need noJ:> bear the same date, if recorded at
the same time in the same connection. "'^ If the mortgage cover
tlie personal property on the leasehold premises, the mortgagee
may follow and recover it wherever he finds it, notwithstanding
his debt is not due at the time he claims it.""* Neither the Act of
1855 nor that of 1868 embrace a leasehold vesting a freehold in-
terest in the mortgagor.''*'* The Acts of 1855 and 1876 apply to
a leasehold interest in a city lot for a term of years, the lessee
paying a yearly rent and being required to erect a building
thereon.^^ The word " fixture" as used in the Act of 1855 is
not to be constimed in its strict sense, but in a comprehensive
way, and includes mine cases and all such machinery and ap-
23 Sturtevant's Appeal, 34 Pa. St. 27 Gill v. Weston, 110 Pa. St.
149; Glading v. Flick, 88 Pa. St. 312; 1 Atl. Rep. 921.
460. See First National Bank v. 28 Gill v. Weston, 110 Pa. St.
Sheafer, 149 Pa. St. 236; 24 Atl. 312; 1 Atl. Rep. 921.
Rep. 221. 29 Gill V. Weston, 110 Pa. St.
2iLadley v. Creigliton, 70 Pa. St. 312; 1 Atl. Rep. 921.
490. 30 Railroad Co. v. Sanderson, 109
25Hosie V. Gray, 71 Pa. St. 198. Pa. St. 583.
26 Glading v. Friek, 88 Pa. St. si Hilton's Appeal, 116 Pa. St.
460. 351; 9 Atl. Rep. 342.
370 OIL A>,'D CAS.
pliances which are essential to the operation of a colliery, not,
however, prop^timher.^^
§344. Mortgagor may remove gas, oil and minerals.
The mortgagor of gas, oil or mining lands may extract the
oil or gas or remove the minerals, and convert them into money,
if the gas or oil wells or mine operated w^ere dug or opened at
the time the mortgage was placed upon the premises; but if
they were not, tlien the lands cannot be so worked, for it is
waste as against the mortgagee to permit it, even though the
land was purchased as mineral land.^^ To remove and convert
into money minerals underlying the soil is not waste, unless it
w^as necessary to penetrate the soil to secure such, minerals.^*
The only restriction on the mortgagor is that he must not en-
danger or seriously impair the lien of the mortgage. ^^ In one
case, after decree of foreclosure and execution issued, the mort-
gagor quarried stone from a quarry, already open ; and it was
held that as between him and the mortgagee, the latter was en-
titled to the stone.^''
§345. Mortgagor in possession.
In this country the mortgagor is usually entitled tO' possession
after default, and until a foreclosure of the: mortgage and sale of
the mortgaged premises, unless a receiver be appointed ; and
also until the year of redemption has expired, where a redemp-
tion is allowed. Where a statute provided that the mortgagor
should be entitled to the possession of lands or tenements sold
under execution, until the expiration of fifteen months from
32 Baker v. Atherton, 15 Pa. Co. 35 Duff's Appeal, 21 W. N. C. 491;
Ct. Rep. 471. Ward v. Carp River Iron Co., 50
33 Ward V. Carp River Iron Co., Mich. 522; 15 N. W. Rep. 889; Ver-
47 Mich. ^; 10 N. W. Rep. 109. valen v. Older, 4 Halst. (N. J.)
34 Duff's Appeal, 21 W. N. C. 491 ; Ch. 98.
(apner V. Mining; Co., 2 Greens. (N. 36 American Trust Co. v. North
J.) Ch. 467; Childs v. Hurd. 32 W. Quarry Co., 31 N. J. Eq. 89. See
Va. 66; 9 S. E. Rep. 362; Vervalen Leport v. Mining Co., 3 N. J. L.
V. Older, 4 Halst. (N. .1.) Ch. 98; Jr. 280.
Leport V. Mining Co., 3 N. J. L.
Jr. 280.
MORTGAGES. 3Yl
the time of the sale, and use and enjoy the premises withtjiit
being guilty of waste, in the same manner and for the like pur-
poses, in which and for which they were used and applied prior
to the sale, doing no permanent injury to the freehold, it was
held tlie working of the open mines and the removal of ore from
them was permitted by the statute ; but not the opening of new
mines.^^ '* The judgment debtor was entitled to continue the
working of a mine in a reasonable and prudent manner, having
regard to the customary working before tlie sale, and to dispose
of the proceeds. If the mining was improper, excessive or
wasteful, it might at any time have been restrained, and the
parties responsible for and held liable for the damages." '^^
Where the mine underlies a farm, which has been mortgaged
for the purchase money, any necessary and proper use of the
farm in carrying on the mining operations is not a waste. ^'^
But if the operations proceed so far as to endanger the security,
then the holder of it is entitled to an injunction restraining the
further operation of the mine.***
§346. Mortgagee in possession.
Where the mortgagee of a mining property goes intO' posses--
sion of the mortgaged premises, by reason of a. default in pay-
ment, he has a right to work the mines that are open, but he is
not bound to do so. He ought not to advance more money in
a mining speculation than a prudent man would do; for if he
does, and loses it, he cannot charge the loss up to the mortgagor.*^
37 Ward V. Carp River Iron Co., it thei-eon, it was held that the
47 Mich. 65; 10 N. W. Rep. 109. stone thus quarried was subject to
38 Ward V. Carp River Iron Co., the lien of the mortgage. American
50 Mich. 522; 15 N. W. Rep. 889. Trust Co. v. Quarry Co., 31 N. J.
39Capner v. Mining Co., 2 Gr. Eq. 89. See Leport v. Mining Co.,
Ch. (N. J.) 467. 3 N. J. L. J. 280.
40 Appeal of Duff, 21 W. N. C. 4i Rowe v. Wood, 1 J. and W.
(Pa.) 491. A stone quarry may be 555; Elias v. Snowden Slate Co., 4
operated by the mortgagor. Verva- App. Cas. 455; 18 L. J. Ch. 811;
len V. Older, 4 Halst. Ch. 98. 26 W. R. 869; 38 L. T. 871; Hughes
See where an insolvent corpora- v. Williams, 12 Ves. 493; Thorney-
tion, after decree in foreclosure and croft v. Crockett, 16 Sim- 445; 2 H.
an execution issued against it, quar- L. Cas. 239; 12 Jur. 1081.
ried stone on the premises and left
372 OIL AND GAS.
In such an, instance the mortgagee is entitled to his expenses in
necessary repairs of the mine, as " just allowances." *^ If the
security is insufficient to satisfy the mortgage, the mortgagee
may ojien new mines on the mortgaged premises, and tlie court
will allow him his costs in so' doing.^^ If the opening of a new
mine results in a loss, he must pay it ; if in a profit, the mort-
gagor is entitled to a credit on his deht to the extent of the
amount of the profit,** But if tlie security is sufficient, then
the mortgagee in possession may not open a new mine.*^ If
the mortgagor may not open a new mine, his mortgagee in pos-
session may not. The mortgagee's right in the premises is
measured by the rights of the mortgagor at the time the mort-
gage is executed.**' In case of a default in the mortgage, the
mortgagee, instead of taking possession, may apply for a re-
■ceiver to operate the mine., for a colliery is a business.*^ But
the mortgagor cannot secure the appointment of a receiver when
the mortgagee' is in possession, even though he alleges miscon-
duct on the latter's' part ; for the mortgagor cannot in that way
turn out. the mortgagee so long as any of the debt, remains un-
paid.*^ If the mine be flooded by the careless conduct of the
mortgagee in working it, he will be liable to make good the
loss.*** There ought to be inserted in every mortgage of a colliery,
and this isi also true of every mortgage on oil or gas lands, a
clause enabling tlie mortgagee, in case he takes possession, or,
where an agreement as to possession is not allowed, to apply
for' and have a receiver appointed to work the mine, if the mine
42 Tipton Green Colliery Co. v. *e Elias v. Griffiths, 8 Cli. Div.
Tipton Moat Co., 7 Ch. Div. 192; 47 ,521; 40 L. J. Ch. 806; 26 W. R.
L. J. Ch. 152; 26 W. R. 348. See 869; 38 L. T. 871; S. C. 4 App.
Millett V. Davey, 31 Beav. 470; 32 Cas. 454; 48 L. J. Ch. 203.
L. J. Ch. 122; 7 L. T. 551; 11 W. 47 Jgfferys v. Smith, 1 J. and VV.
U. 170; 9 Jur. (N. S.) 92. 298; Gloucester Bank v. Rudry Col-
« Hughes V. Williams, 12 Ves. liery Co. [1895], 1 Ch. 629; Camp-
4.»3. bell V. Lloyd's Bank [1891], 1 Ch.
44 Millett V. Davey, supra. 136, note; Peck v. Trinsmaran Co.,
45 Thorneycroft v. Crockett, 16 z Ch. Div. 115; 24 W. R. 301.
Sim. 445; 2 H. L. Cas. 239; 12 Jur. 4.s Rowe v. Wood, 1 J. and W.
1081; Hood v. Easton, 2. Giff. 602; 5.55; 2 J. and W. 553.
2 ,Jur. (N. S.) 729; 27 L. T. (0. S.) 4n Taylor v. Mostyn, 33 Ch. Div.
295; 4 W. R. 575. 220.
MORTGAGES.
he a material portion of the security.^" If the mortgage
is of the interest of one co-tenant, the mortgagee is entitled to
the same account as the co--tenant. himself.^^ If the mortgagee
in possession of a colliery improperly work it, his mortgagor
may obtain an injunction to prevent the wrong working of it,
though not the proper working.^" As against a mortgagee in
possession, a mortgagor is entitled to an accounting; and in
such an action the mortgagee must account, for not only all he
has actually received, but for what he might have received but
for his gross mismanagement or wilful neglect.^^
fc)^
§347. Mortgagee in possession, English rule.
We take the following statement of the law in England with ^
reference to mines, where the mortgagee is entitled to jx)ssession
of the premises after default made, from Bainbridge on
Mines : ^* " A mortgagee has in law an absolute estate in the
lands mortgaged, and is entitled, after default in payment of
the mortgage debt, to take immediate possession, and to receive
the rents and profits of the mortgaged estate.^" And as regards
the mines and minerals within or under the lands comprised
in the mortgage, he^ will be entitled to. work any mines or quar-
ries which have been already opened ; but, of course, he is not
bound to do so at least, in the general case; and in no case
ought he to advance more mone}' in a mining speculation than
a p'rudent owner would do. For, as Lord Eldon very justly
observed, if he were owner he might speculate for himself as
much as he pleased — sciJ., because the advantages, whatever
they might be, would be his, and if the speculation turned out
unfortunate, he would bear the loss ; but could a mortgagee be
50 Norton v. Cooper, 5 De G. M. and F. 1; Taylor v. Mostyn, 25 Ch.
and G. 728; 25 L. J. Ch. 121; 23 Div. 48.
L. T. (0. S.) 125; 2 W. R. 362. 53 Hughes v. Williams. 12 Ves.
51 Bentley v. Bates, 4 Y. and C. 493; Norton v. Cooper. 25 L. J. Ch.
Exch. 182; 9 L. J. Exch. 30; 4 Jur. 121; 5 De G. M. and G. 728; 23
552. Ju. T. (0. S.) 125; 2 W. R. 362.
.^2 Taylor v. Mostyn, 23 Ch. Div. 54 Pp. 32-38 (5th ed.).
o83; 53 L. J. Ch. 89; Sheehy v. ss \Yilliams v. Medlicott (1819). 6
Muskerrv, 1 H. L. Cas. 576; 7 CI. Price 496.
374 OIL AND GAS,
required to risk his own fortune in suck a speculation, and to
incur the hazards of an adventure the benefits of which would
redound to the mortgagor ? ^*^ A mortgagee in possession being
accountable for wilful default, it seems to follow, that if the
property in moi-tgage be a mineral estate, the mortgagee will be
bound to make the most reasonable use of the estate — sell., be-
cause the nature of the estate should have been coutemplated
before he took possession ; and at the same time, if he exceed
the expenditure and risk demanded from a prudent owner, ho
will not be allowed such unnecessary or extravagant expenses,
but will speculate at his own risk. Where a mortgage term of
500 years had been created in lands' by the fee simple owner
of the lands ; and he subsequently opened a slate quarry in the
^ands, and worked such quarry (through certain lessees thereof
who paid him a royalty of l-18th the slate gotten) ; and after-
*** wards the mortgagees entered — the court said, that they could
(although only termors) continue the working of that slate
quarry, although it had not been opened at the date of the crea-
tion of the term. And it appearing that, the mortgagees had
obtained an order absolute of foreclosure, they were held to
have become termors absolute for the residue of the 500 years."*'
In Hughes v. Williams,^^ a mortgagee in possession had opened
a slate quarry at an expense of 681. — and had made 21. out
of the quarry — ■ i. e., he had sustained a loss of 661. ; and the
court left him to bear that loss, as he had speculated at his own
peril. But in Tipton Green Colliery Co. v. Tipton Moat Co.,^^
where the defendants were unpaid vendors of a leasehold col-
liery, and they were in possession (in respect of their lien for
the unpaid purchase money), and had expended divers sums of
money upon the colliery (in necessary repairs and otherwise) ;
and the plaintiffs (the purchasers) claimed to redeem them —
the defendants were allowed (as a matter of course, i. e., as
-•G Rowe V. Wood (1820), 1 J. and Thorneycroft v. Crockett (1848), 16
W. 315, 555. Sim. 445; 12 Jur. 1081; 2 H. L.
57 Elias V. Snowdon Slate Co. Cas. 239.
(1870), 4 App. Cas. 455; 48 L. J. so (1877) 7 Ch. D. 192; 47 L. J.
Ch. 811 ; 41 L. T. 289; 28 W. R. 54. Ch. 152; 26 W. R. 348.
r<8(1806) 12 Vcs. 49G ; and see
MORTGAGES. 375
'^ just allowances ") all their expenses on necessary repairs, but
not anything for expenses beyond. In Millett v. Davey,*^° the
plaintiffs were mortgagees in possession of the defendant's one
equal undivided moiety of certain lands'; and, in conjunction
with the o^mer of the other undivided moiety, they made a
lease of the mines, granting also certain surface rights ; and
under the lease, a large quantity of the minerals had been got-
ten, but at a loss — and a considerable part of the surface also
had been damaged, in the exercise of the surface rights ; and
the lessees paid up all royalties accrued due, and abandoned
the mine; and the plaintiffs obtained a judgment for foreclosure
against the defendant — the security being proved to have been
insufficient at the time the mortgagees entered — the court
said, that they were not to be charged with the value of the coal
(the defendant's moiety thereof) which had been gotten by the
lessees, but only with the royalties (the defendant's moiety
thereof) received by the plaintiffs, and not at all for the surface
damage.
" In a mortgage of mines, there would usually be inserted
special clauses enabling the mortgagees, in case they took pos-
session (or become entitled to take possession), to appoint a re-
ceiver and manager, and to expend moneys on the working and
development of the mines (including the oj^ening of the new
mines) — and in such a case, the mortgagees would be allowed
their lawful expenditure with interest thereon.®^ And the like
clauses might be usefully inserted in eveiy mortgage of lands
containing mines, where the mines were a material portion of
the security ; and as regards keeping accounts of the mortgagees'
workings, tlie clauses should provide for the mortgagor having
ins|3ection of the books of the oollier\', but not (save at the ex-
pense of the mortgagor) for the mortgagees rendering him any
account of the workings.*'"
" And, generally, as regards the opening of new mines, it ap-
pears the mortgagee may do so, if his security is insufficient ;
60(1862) 31 Beav. 470; 32 L. J. G. M. and G. 728; 25 L. J. Ch. 121;
Ch. 122; 7 L. T. 551; 11 W. R. 176; 23 L. T. (0. S.) 125; 2 W. R. 362.
9 Jur. (X. S.) 92. 62 /ft^d.
61 Norton v. Cooper (1854), 5 De
376 OIL AND GAS.
and if in sucli a case he acts bona fide, the court will not restrain
him.*^^ But he opens the new mines at his own peril, that is to
say — if the working results in a loss, and if the working re-
sults in a profit, the profit goes in towards the discharge of his
mortgage deht.^* But, nota bene, a mortgage of lands (in which
are mines), if his mortgage is by demise only (t. e., if he is en-
titled only to a term of years in the lands), may not ojion new
mines — for a tennor may not do so, unless he is without im-
peachment of waste. But just as any termor entitled absolutely
may work the open mines, so may a termor who is a mortgagee,**^
at all events, if his security is insufficient. And if the mort-
gagor (or other person entitled under him subject to the mortr
gage term) should, during the continuance of the mortgage,
lawfully open a new mine within or imder the lands demised
by the mortgage deed, the mortgage termor may thereafter work
such ne^vly opened mines — at least, if his security be insuffi-
cient. And all the like observations are applicable also to a
new quarry — it being nevertheless understood that the quarry
has been opened ■ — that is to say, for the purpose of being
worked as a commercial speculation, and not merely for the pur-
pose of digging a few blocks of stone thereout for some specific
private purpose."" But it rather appears-, that if the security
is not insufficient, the mortgagee has no right to open new mines,
and that if he do open and work them, he will be charged with
all receipts from the mines, without any allowance for the ex-
pen'ses in opening and working them."^
"The mortgagee of a colliery, in lieu of taking possession of
the colliery — whereby he incurs the liabilities above indicated
63 Hughes V. Williams (1806), 12 Cas. 454; 48 L. J. Cli. 811; 41 L.
Ves. 493. T. 289; 28 W. R. 54.
c4Millett V. Davey (1862), 31 66 Ellas v. Griffiths (1878), 8 Ch.
Beav. 470, at p. 476; 32 L. J. Ch. D. 521; S. C. (sub nom.) Elias v.
,122; 7 L. T. 5^1; 11 W. R. 176; 9 Snowdon Slate Co. (1879), 4 App.
Jur. (N. S.) 92. Cas. 454.
65 Elias V. Griffiths (1878), 8 Ch. 67 Thorney croft v. Crockett
D. 521; 46 L. J. Ch. 806; 48 L. J. (1848), 16 Sim. 445; 12 Jur. 1081;
Ch. 203; 26 W. R. 869; 38 L. T. 2 H. L. Cas. 239; Hood v. Easton
871; S. C. (sub nom.). Elias v. (1856) . 2 Giflf. 692 ; 2 Jur. (N. S.)
Snowdon Slate Co. [1879], 4 App. 729, 917; 27 L. T. (O. S.) 295; 4
W. 1.. 575.
MORTGAGES. 377
— ought to appoint a re<?eiver (who will be the mortgagor's
agent) ; and if a manager also should be. necessary, he may ob-
tain an order for the appointment of a receiver and manager ;
and he may obtain snch an order even after he has entered into
possession.''^ And the reason why the court ap|X)ints a receiver
and manager is, because the security would otherwise go to ruin ;
and (where tlie colliery is a leasehold one) it might even be
forfeited by the lessor — sciL, for neglect to work or for
some other breach of the covenants in the lease ; ^^ and the mere
fact that the collieiy business is not si>ecifically comprised in
the mortgage will not make any difference, a collieiy being a
business/"
" In Rowe v. Wood,"^ the mortgagees were in possession, and
the plaintiff (the mortgagor) was tlie party who applied for a
receiver and manager of the mine — alleging misconduct on the
part of the defendants in the management; but tlie court, said,
that the plaintiff could not (in that way) turn out the mort-
gagees from the possession so long as they alleged that they were
unpaid (even a sixj>ence of) their mortgage debt; and all that
the plaintiff (as mortgagor) was entitled to, was, to require the
defendants to keep the proper accounts and to j>ermit his inspec-
tion thereof.
" In IS^orton v. Cooper,'^" the mortgage was of mines, with
power for the mortgagees to enter and develop the mortgaged
premises, and to exi>end money for that jmrpose ; and the mort-
gagor, suing for redemption, claimed to charge the mortgagees
with an occupation rent, and also to disallow them all their ex-
penditure — lx)th which claims the mortgagees, of course, re-
sisted ; and they also refused accounts, save at the expense of the
mortgagor. The accounts as taken in the suit showed —
16,654Z. owing on the mortgage for principal and interest ;
6s Campbell v. Lloyd's Bank. "o Jefferys v. Smith (1820), 1 J.
cited in [1891] 1 Cli. 136, note; and W. 298; Gloucester Bank v.
Peck V. Trinsmaran Co., 2 Ch. D. Riidry Colliery Co., supra.
115; 24 W. R. 361. 7i (1820) 1 J. and W. 315;
69 Gloucester Bank v. Rudry Col- (1822) 2 J. and W. 553.
liery Co. [1895]. 1 Ch. 629; 64 L. J. 72(1854) 5 De G. M. and G. 728;
Ch. 451; 72 L. T. 375; 43 W. R. 25 L. J. Ch. 121; 23 L. T. (O. S.)
486; 2 Manson 223; 12 R. 183. 125; 2 W. R. 362.
378 OIL AND GAS.
60,02 7Z. owing as moneys properly expended in developing
the mines; and 3,74:71. owing as moneys properly paid in re-
deeming a previous mortgage; and 74,637/. received as profits
from the mines — leaving 5,790Z. still owing to the mort-
gagees ; and the court allowed the whole exi^enditure, and also
gave the mortgagees their costs of suit — holding that their
conduct had not been vexatious, merely because they refused the
accounts save on the mortgagor's first paying for the expense of
the accounts; and the court refused, of course, to charge the
mortgagees with any occupation rent.
" In Bentley v. Bates, ^^ where there were two lessees of a
mine, and tliey were working it in quasi-partnership, and the
plaintiff was the mortgagee of the interest of one of the lessee-
partners, and claimed an account against the defendant who was
the other lessee (the mortgagor being also a co-defendant) —
thetcourt said, tliat the plaintiff was entitled to all the rights
of his mortgagor, and was therefore entitled to have an account
of the profits (and generally of the management by the defend-
ant) of the mine; and that he need not, for that purpose, ask
for a dissolution of the partnership, as he would have been
obliged to do in the case of an ordinary mercantile business —
for a co-tenancy (or joint partnership) of lands is not to be de-
termined by a. partition of the lands, liefore an account can l>e
taken on behalf of one of the co-tenants against the other or
others of them.
"In Taylor v. Mostyn ^* and Mostyn v. Lancaster,^^ certain
lands containing coal mines (which in 1829 had been leased by
the testator for a term which would expire in 1848) were devised
to M. for his life, with remainder to M.'s first son in tail, and M.
was empowered to lease the mines at his discretion : And M.
(being in possession as tenant for life under the will) leased the
mines in 1843 (for ninety-nine years) by way of mortgage to
C. for securing a principal sum and interest, and with powers
^•"(1840) 4 Y. and C. Exch. 182; 75 23 Ch. Div. 583; 51 L. J. Ch.
9 L. J. Exch. 30; 4 Jur. 552. 606: 46 L. T. 648; 48 L. T. 715; 31
74(1882) 23 Ch. D. 583; 53 L. J. W. R. 3, 686.
Ch. 89; 49 L. T. 483; 32 W. R.
25G.
MORTGAGES. 379
of working the mines similar to those contained in the 1829
lease — which mortgage was afterwards (in 1850) transferred
to X., to whom M. was already otherwise very largely indebted ;
and M. at the same time mortgaged also his life estate to X. (or
to a nominee of X.) ; and (by a lease in 1850) M. demised the
mines to X.'s nominee for forty years at a dead rent, and at
royalties — and the last mentioned lease was duly confirmed
by M.'s first son (who had in the meantime attained his age of
twenty-one years, and had duly barred the tail) : x\fterwards,
the life estate of M., and the fee simple remainder of his first
son, became vested in Mostyn and others (the defendants in
Taylor v. Mostyn, and who were also the plaintiffs in Mostyn
V. Lancaster) ; and tlie 1850 lease was assigned to Taylor and
others (tlie plaintiffs in Taylor v. Mostyn), and in them (or in
the plaintiff Taylor alone as a nominee for them) were also
vested the 1843 lease and the mortgage of the life estate. And
the plaintiffs in Taylor v. Mostyn (by virtue of the lease of
1850) sublet the mines to the defendants in Mostyn v. Lan-
caster, and Taylor at the same time (and by virtue of the lease
of 1843) leased the mines to the same defendants for a term
limited to expire in 1000 : And the action of Taylor v. Mostyn
being for foreclosure, and the action of Mostyn v. Lancaster
being for an injunction to restrain the removal of the pillars
of coal in tlie demised mines — The court held — That the
lease of 1843 was a valid exercise of the leasing power "** — and
consequently that the plaintiffs in Taylor v. Mostyn (unless
they were redeemed) might foreclose; and That the lease of
1850 (or the sublease derived out of it) did not (upon its true
construction) authorize the getting of the pillars, save with the
consent of M. (which consent, so far as regards the past work-
ings, had not been obtained), although (on the expiration of the
1850 lease, and during the then residue, if any, of tlie life of
M.) the consent of M. to the working of the pillars of coal
under the lease of 1843 had been (in effect) already given by
M. — and, consequently, that the defendants must (save during
such residue as aforesaid, if any of the life of M.) be restrained
76 Sheehy v. Muskerry (1848), 1 Mad. and R. 493; LI. and Gt. Plunk
H. L. Gas. 576; 7 CI. and F. 1; 568.
380 OIL AND GAS.
from removing the pillars of coal. And at a subsequent stage
of litigation," tlie plaintiffs in Taylor v. Mostyn, alleging that
(owing to the decision in Mostyn v. Lancaster) their security
was of vastly less value than tlie amount of their moitgage debt,
neglected to prosecute their foreclosure decree; and, on the ap-
plication of the defendants, the court directed them to do so,
the order exp'ressing that it was made at the express direction
of the defendants — so that if the costs of the further prosecu-
tion of the decree should be found to have been (without any
good purpose) forced on the plaintiffs, the defendants might
be ordered personally to pay such costs ; and the order gave the
plaintiffs liberty to apply for a stay of all further proceedings.
However, while the decree was being further prosecuted,^* the
defendants obtained from the court a declaration, that (as re-
gards all the pillars of coal wrongfully removed by the mort-
gageerleSfeees) the plaintiffs, as mortgagees, were to be charged
with the full value of such coal, less only the cost of bringing it
to bank (that is to say, allowing nothing for tlie cost of severing
the coal) ; and it rather appearing that a flooding of the mines
had been occasioned by the ^vrongful removal of such pillars,
the court directed an inquiiy as to that if (upon the result of
that inquiry) the damage from the flooding should be traceable
to the wrongful removal of the pillars of coal, the plaintiffs, as
mortgagees, would be chargeable with that." ^®
AKTICLE 2.
GAS PLANT.
§348. Mortgage of gas plant.
§348. Mortgage of gas plant.
A francliise giving a right to " construct, own, maintain and
operate " a gas or water plant may be mortgaged ; and a mort-
gage on such a franchise of a plant in process of construction
carries the plant with it.*^ It will also include tangible proi>
77(1883) 25 Ch. D. 48. of an oil lease in possession. Fuher
78 33 Ch. Div. 226. v. Buckeye Supply Co., 5 Ohio C. PI.
79 The expense of an uns'iceessful 187; 7 Ohio N. P. 420.
eflFort in fishing for lost tubing so Andrew v. National Foundry,
has been allowed to a mortgagee 76 Fed. Rep. 166; 22 C. C. A. 110;
MORTGAGES. 381
erty as an incident, if such was the evident intent of the mort-
gagor and mortgagee.^^ Even though the company had no
power to execute the mortgage, yet it cannot raise that question
on the ground that it was of a quasi-public character, so long as
the municipality in which it is situated does not challenge the
validity of the moi'tgage.^' The property should be sold as an
entirety "v\dtliout redemption ; and no redemption can be allowed
when the foreclosure is in the United States Circuit Court, not-
withstanding a State statute requires mortgaged property to be
sold subject to the right to^ redeem.^^
36 L. R. A. 139; 46 U. S. App. 281
rehearing denied, 77 Fed. Rep. 774
23 C. C. A. 454; 46 U. S. App. 619
956; 20 C. C. A. 133; 36 U. S. App.
563.
83 Farmers' Loan, etc., Co. v. Iowa
Hays V. Galion, etc., Co., 29 Ohio St. Water Co., 78 Fed. Rep. 881.
330. The purchaser is entitled to at
81 Andrew v. National Foundry, once take possession as absolute
supra. owner. ]\IcKenzie v. Bismark Water
82 American W. W. Co. v. Farm- Co.. F. 6 N. D. 361; 71 N. W. Rep.
ers' Loan, etc., Co., 73 Fed. Rep. 608.
CHAPTER XVIII.
TRANSPORTATION AND EMINENT DOMAIN.
§349. Scope of chapter.
§350. Transportation of gas or oil a i)ublic use.
§351. Carriers of oil. — Tank cars.
§352. Transportation from State cannot bo prevented.
§353. Transportation by pipe line. — Inter-state commerce.
§354. Regulation of transportjition.
§355. Ownership of oil in pipe lines.
§356. May be endowed with powers of eminent domain.
§357. Artificial gas companies. — Eminent domain.
§358. Foreign companies excluded from use of power of eminent domain.
§359. Nijjjiber of lines that can Ir> laid in right of way acquired.
§360. Laying pipes in country highways.
§361. Measure of damages for taking right of way.
§362. Damages occasioned by gas company's trespass on land.
§363. Prospective damages for fires and explosions.
§364. Removal of pipe line, damages.
§365. Pipe line crossing right of way of railroad company.
§366. Revocation of license.
§367. Route, specifying in petition. — More than one route.
§368. Coal mine beneath pipe line. — Support.
§369. Well pipe passing through coal mine.
§349. Scope of chapter.
In tliis chapter all questions of negligence in the transporta-
tion of oil or gas are eliminated, thev finding an appropriate
place in the chapters on Transportation and on iS^egligence, and
in the one on Leaks and Explosions. So all discussions of the
general principles and rules of practice of eminent domain are
eliminated, except so far as they are peculiar to questions con-
cerning gas and oil.
§350. Transportation of gas or oil a public use.
The transportation of natural gas or oil is a public use, as
much so as a railway company engaged in the transportation of
382
TEAXSPORTATIOX EMINENT D0:MAIN. 383
articles of commerce. Indeed, natural gas and petroleum when
brought to the surface and enclosed in tanks, reservoirs or pipes
are articles of commerce, a commercial commodity. " The gas
in the earth may not be a commercial commodity," said the
Supreme Court of Indiana, " but, when brought to the surface
and placed in pij^es for transportation, it must assume that char-
acter as completely as coal on the cars or petroleum in the tanks.
We suppose it clear tliat Pennsylvania could not prohibit the
transportation of coal or petroleum to another State, and there
is no difference between cases where coal is the commodity af-
fected and those in which it is natural gas. It is no doubt true
that there is a jx^int at which a natural or a manufactured
product is not an article of commerce, but, when it assumes such
a form as fits it for transportation from State to State, it is, so
far as the law of interstate commerce is concerned, transformed
into a commercial commodity." " Xatural gas is as much an
article of commerce as iron ore, coal, petroleum, or any other
of the like products of the earth. It is a commodity which
may be transported, and it is an article which may be sold in the
markets of tlie countiy." ^ There are many oases to the same
effect; and it is now no longer an oj^en question that the trans-
portation of gas, whether artificial, manufactured, or natural,
and oil, of whatever kind, is a public use."
1 State V. Indiana, etc., Co., 120 West Virginia, etc., Co. v. Ohio
Ind. 575; 22 N. E. Rep. 778; 29 Ani. River Pipe Line Co., 22 W. Va. 600;
and Eng. Corp. Cas. 237 ; 6 L. R. A. Jamieson v. Indiana, etc., Co., 128
579. Ind. 555; 28 N. E. Rep. 76; 12 L. R.
- Bloomfield, etc., Co. v. Richard- A. 652 ; 34 Am. and Eng. Corp. Cas.
son. 63 Barb. 437 ; Carother v. 1 ; Manufacturers' Gas and Oil Co.
Philadelphia Co., 118 Pa. St. 468; v. Indiana, etc.. Co., 155 Ind. 545;
12 Atl. Rep. 314; Johnston v. Peo- 58 X. E. Rep. 706; Manufacturers'
pie's Natural Gas Co. (Pa.), 7 Gas and Oil Co. v. Indiana, etc.. Co.,
Atl. Rep. 167; West Virginia, etc., 155 Ind. 566; 58 N. E. Rep. 851.
Co. V. Volcanic Oil and Coal Co., 5 Conducting natural gas from the
W. Va. 382 ; Johnston's Appeal wells to consumers is the transporta-
(Pa.), 7 Atl. Rep. 167; In re Ohio tion of freight. Carother v. Phila-
Valley Gas Co., 6 Pa. Dist. Rep. delphia Co.. 118 Pa. St. 468; 12
200; 27 Pittsb. Leg. J. (N. S.) 321; Atl. Rep. 314.
384 OIL AXD GAS.
§351. Carriers of oil — tank cars.
Carriers of oil iinist serve all shippers impartially. If they
fail to furnish tank cars for oil, in consequence of which the
shipper is required to ship oil in barrels, they are liable for the
damages resulting therefrom, imder Sec. 8 of tlie Interstate
Conunerce Act providing that " any common carriers " subject
to its provisions shall be liable for the " full amount " of all
damages caused by violation of its provisions. If they cliarge
for carrying oil in barrels when the use of tank cars for ship-
ments has not been open impartially to shippers, in consequence
of which such shippers have been deprived of the use of such
cars, they will he required by the Interstate Commerce Commis-
sions to refund the amount received for the transportation of
the barrels.^
§352. Transportation from State cannot be prevented.
As gas and oil are instruments of commerce when confined in
receptacles, a State cannot prevent their transpoi"tation beyond
its boundaries, however desirable such prevention may be. This
has been attempted without success.* Because of its local char-
acter, however, it occupies a position distinct from other articles
of commerce. " Upon this point," to quote from an Indiana
case, " we affirm that natural gas is characteristically and pecu-
liarly a local product., that its production is confined to a limited
territory, that because of its local character and peculiarities
it is a proper' subject of State legislation, and cannot, so far
as regards local protection, be made the subject of general legis-
lation by Congress ; or, at all events, that, it does not require a
uniform system as between the States for its regulation." ^
3 Independent Refiners' Associa- Corp. Cas. 1; Manufacturers' Gas,
tion V. Western, etc., R. R. Co., 4 etc., Co. v. Indiana, etc., Co., 155
Inter. St. Rep. 162."* Ind. 545; 58 N. E. Rep. 706; Manu-
4 State V. Indiana, etc., Co., 120 faeturers' Gas, etc., Co. v. Indiana.
Ind. 575; 22 N. E. Rep. 778; 6 L. etc., Co., 155 Ind. 566; 58 N. E.
R. A. 579; 29 Am. and Eng. Corp. Rep. 851.
Cas. 237 ; Jamieson v. Indiana, etc., 5 Jamieson v. Indiana, etc., Co.,
Co., 128 Ind. 555; 28 N! E. Rep. 76; supra.
12 L. R. A. 652; 34 Am. and Eng.
TRAXSPORTATIOX EMINENT DOMAIX. 385
§353. Transportation by pipe line. — Interstate commerce.
There is no doubt about |Totroleum or natural gas (and even
artificial gas) being the subject of commerce, even of inter-
state commerce. The Indiana Supreme Court has so consid-
ered it, saying:
" jSTatural gas is as much an article of commerce as iron ore,
coal, ix'troleum, or any other of the like products of the earth.
It is a commodity which may be transported, and it is an ar-
ticle which may be bought and sold in the markets of the coun-
tiy. The gas in the earth may not be a commercial commodity,
but, when brought to the surface and placed in pii>es for trans-
portation, it must assume that character as completely as coal
on the cars or petroleum in the tanks. We suppose it clear
that Pennsylvania couhl not prohibit the transportation of coal
or petroleum to another State, and there is no diiference in prin-
ciple between cases whore coal is the commodity affected and
those in which it is natural gas. It is no doubt tnie that there
is a point at which a natural or manufactured product is not
an article of commerce, but, when it assumes sudi a form as
fits it for transportation from State to State, it is, so far as the
law of interstate commerce is concerned, transformed into a
commercial commodity. For the purposes of taxation an ar-
ticle of property may not be regarded as a commercial com-
modity until it has. started on its way from one State to another,
but property that may become an article of commerce cannot be
kept in the State where it was produced by a State law forbid-
ding its transportation. If this were not so, then, not only
might coal and petroleum be kept within the State in which
they were produced, but so might com and wheat, cotton, and
fruit, and lead and iron. If such laws could lie enacted and
enforced, a complete annihilation of interstate commerce might
result, and it was to prevent the possibility of such result that
the provision vesting exclusive power in the Federal government
was written in the Xational Constitution." ^
estate v. Indiana, etc.. Co.. 120 579; 2 Inter St. Com. Reps. 758;
Ind. 575 ; 22 X. E. 778 ; 29 Am. and Manufacturers' Gas and Oil Co. v.
Eng. Corp. Cas. 237; 6 L. R. A. Indiana, etc., Co., 156 Ind. 679; 60
386 OIL AND GAS.
§354. Regulation of transportation.
ISTotwitlistanding that natural gas is the subject of interstate
commerce, that will not prevent the State, in the exercise of
its police power, taking such steps as will protect its inhabitants
and their piroperty, even though the effect is to prevent its gen-
eral transportation. Such an instance occurs where the State
prohibits a greater pressure in the pipes than a certain amount,
although such a pressure is not sufficient to carry the gas from
the field where it is found beyond the boundaries of the State.
In an Indiana case the follo\ving language was used in dis-
cussing the right of the State to regulate the transportation of
gas:
" If natural gas cannot be safely transported to a State dis-
tant from its source, it is because of its natural qualities, and
not because of legislation. The restriction upon transporta-
tion, if there be any, is in the inherent nature of the thing
itself; none is put upon it by the statute, since the statute does
no more than regiilate its conveyance from the wells to points of
distribution in such a mode as to protect lives and property.
This it does, and nothing more. If the distribution within the
State cannot be made at safe pressure, it is because of the
character of tlie local natural product, not because of any
standard of pressure fixed by legislation. Fixing the standard
of pressure is not a regulation of interstate commerce; possibly
it might be different if the product were not a local one, and
intrinsically dangerous ; but natural gas is local and is danger-
ous in its transportation and use. It is the inherent element
of danger that makes it necessary to handle, store, and trans-
]x>rt natural gas in peculiar modes, and under reasonable re-
strictions. It is true that natural gas may be an article of
commerce, but it is not an ordinaiy article of commerce. It is
not a commercial commodity while in the earth, it is only so
when it ceases to become real estate and becomes personal pro}>
erty. It cannot in any event become an ordinary article of
N. E. Eep. 1080; Manvifacturers' Manufacturers' Oil and Gas Co. v.
Gas and Oil Co. v. Indiana, etc., Co., Indiana, etc.. Co., 155 Ind. 545 ; 'S
155 Ind. 566; 58 N. E. Rep. 851; N. E. Rep. 706.
TKAXSPORTATIOX EMIXEXT DOMAIN. 387
merchandise in Avhich no dangerons elements combine. In a
limited and qualified sense it is a commercial commodity, but
the limitation is not put upon it by any statute. That is done
by nature. It is, no doubt, so far a commercial commodity that
this State cannot prohibit its transportation to another State by
direct legislation. If it can be taken from the well and trans-
ported to another State under a safe pressure the State cannot
prohibit its transportation, nor can the State establish one
standard of pressure for its ovm citizens and another standard
for the citizens of other States. But nothing of the kind is at-
tempted directly or indirectly, for, as we have sho\\Ti, there is
one standard and no prohibition. The standard is for all. If
it is such as will allow the transportation of natural gas to
other States, there is no restriction or burden upon interstate
commerce. If there is a prohibition in any sense, or to any ex-
tent, it is in the nature of the commodity itself, but tliere is no
prohibition. We have shown, as we believe, that natural gas,
because of its local nature and intrinsic qualities, cannot be
made the subject of general commerce between the States, and
have thus established the conclusion that it cannot, so far as
local safety is concerned, bo made the subject of uniform Fed-
eral legislation, but is a legitimate subject for reasonable police
regulation. But if it be conceded that it is tlie subject of gen-
eral commerce between the States, it may, nevertheless, be the
subject of legislation by the State in so far as the regulation is
local. In every case in which there is an autlioritative decision
upon the question it is affirmed that the States may make police
regulations, although articles of commerce may be affected by
such regTilations. Interstate commerce, it is true, can neither
be burdened nor restricted. But the establishment of a reason-
able police regulation for the local safety is neither a burden
nor a restriction within the meaning of the law ; since, if there
be a lawful exercise of a governmental power, there can be no
wrong. Our own cases recognize the power to enact reasonable
police regulations concerning articles of commerce. But our
decisions are of comparatively little importance upon this ques-
tion, since the question is one to be determined by the decisions
of the Supreme Court of the United States. The most familiar
388 OIL AND GAS.
instances of the exercise of police power over commercial com-
modities are those wherein intoxicating liquors were tlie subject
of legislation, and it has been uniformly held that such com-
modities are subject to State authority." ^
§355. Ownership of oil in pipe lines.
Prima facie oil delivered to a \n\yc line lx?longs to tlie person
to whose credit or in whoso name it is delivered; and the pipe
line company, when sued for the oil, cannot show that another
owTied it, or had an interest in it as a tenant in common.* An
interest represented by a run-ticket issucil by a ])i\)v lino com-
pany storing and carrying oil nuiy be garnisheed, although all
the oil the company is intnisted with is mixed together and
stored in a common stock in two States, in one of which the
garnishee proceedings is brought, and altliough the particular
oil for which the ticket was given was produced in the other
State and was never in the State in which such proceedings are
instituted.''
§356. May be endowed with powers of eminent domain.
Owing to the piublic character of transportation of oil and
(natural) gas, companies producing or manufacturing such
commodities may be endowed with the ]X)wer of eminent do-
main, in order that they may secure a right of way for their
pipe lines." " In this State the legislature, in the exercise of
its discretion, has judged it proper to clothe companies, cor-
7 Jamieson v. Indiana, etc., Co., 37 W. X. C. 473; 33 Atl. Rep. U87.
128 Ind. 555; 28 N. E. Rep. 76; 12 9 Buckeye Pipe Line Co. v. Fee,
L. R. A. 652; 34 Am. and Eng. Corp. 15 Ohio C. C. 673.
Cas. 1 ; Manufacturers' etc., Co. v. lo Johnston v. People's Natural
Indiana, etc., Co., 155 Ind. 566; 58 Gas Co. (Pa.), 7 Atl. Rep. 167; 5
i>. E. Rep. 851; Manufacturers', etc., Cent. Rep. 564; 15 Morr. Min. Rep.
Co. V. Indiana, etc., Co., 156 Ind. 556; Carother v. Philadelphia Co.,
679; 60 N. E. Rep. 1080; Consum- 118 Pa. St. 468; 12 Atl. Rep. 314;
ers' Gas Trust Co. v. Harless, 131 Bloomfield, etc.. Co. v. Richardson,
Ind. 446; 29 N. E. Rep. 1062. 63 Barb. 437; West Virginia, etc..
8 Enterprise Oil and Gas Co. v. Co. v. Volcanic Oil and Coal Co., 5
National Transit Co., 172 Pa. St. \\ . Va. 382; In re New Rochelle
421; 26 Pittsb. L. J. (N. S.) 314; Water Co., 46 Hun 525.
TKANSPORTATIOX
EMINENT DOMAIN.
389
porations and associations engaged in the business of furnishing
petroleum and natural gas to the citizens of tliis State, for con-
sumption, with the power of eminent domain, while it has not,
as yet, thought proper to clothe companies, corj^wrations and
associations not so engaged with that power. It is not our
province to inquire into the motions which prompted the legis-
lature to grant this power to persons engaged in funiishing
petroleum and natural gas to tlie people of this State, and to
make no such provisions for those furnishing them to tlie people
of other States. It is sufficient for us to kn^w that under the
authorities they possess the power to do so, and tJiat in the exer-
cise of the discretion it possesses it has done so." ^^
§357. Artificial gas companies. — Eminent domain.
Companies for furnishing artificial or maiuifactured gas sel-
dom possess the power of eminent domain ; but there is no
doubt that they may Ix; endowed with that i)Ower.^" They arc
11 Consumers' Gas Trust Co. v.
Harless, 131 Ind. 446; 29 N. E. Rep.
1062; 15 i.. R. A. 505; Board v.
Indianapolis, etc., Co., 134 Ind. 209;
33 N. E. Rep. 972; Consumers' Gas
Trust Co. V. Huntsinger. 14 Ind.
App. 156; 42 N. E. Rep. G40.
A pipe line laid in ground with-
out the land owner's permission be-
longs to the land owner. Windfall,
etc., Co. V. Tutewiler, 152 Ind. 364;
53 N. E. Rep. 284.
Under a parol license to lay
" water mains " the licensee has a
right to lay only one main, where
only one was contemplated when the
license was given. Great Falls W.
W. Co. V. Great Northern Ry. Co.
(Mont.), 54 Pac. Rep. 963.
A statute providing that lands
for gas pipe lines shall not be con-
demned within a certain distance
of a dwelling, but permitting pipes
to be laid along a highway, without
regard to nearness of dwellings, has
no application to the sinking of a
well and laying pipes on one's own
land, between which and dwellings
within that distance there is a higli-
way. Windfall ]Manufg. Co. v. Pat-
terson, 148 Ind. 414; 47 N. E. Rep.
2; 62 Am. St. Rep. 532; 37 L. R.
A. 381.
Under a statute authorizing a.
natural gas company engaged in
furnishing gas to the public, the pe-
tition for the condemnation of a
tract for a right of way is fatally
defective if it only alleges that the
real estate sought to be condemned
is necessary for its pipe line from
its wells to a certain named city.
It should show that it is engaged in
furnishing gas to the public. If the
statute authorizes merely taking an
easement, then the petition is de-
fective if it seeks to take the fee.
Great Western, etc., Co. v. Hawkins
(Ind. App.), 66 N. E. Rep. 765.
12 State V. Indiana, etc., Co., 120
Ind. 575; 22 X. E. Rep. 778; 29 Am.
and Eng. Corp. Cas. 237; 6 L. R.
A. 579.
390 OIL AND GAS
not usually such public corporations as arc endowed with tlie
privilege to exercise such a great power. Their property is not
exempt from condemnation by a railway comjnuiy seeking a
right of Avay, as public quasi-public corjxvrations usually are.
In one case it Avas said : ^' There is nothing in the diarter
of the gaslight company which entitles it to exemption from tlie
power of eminent domain exorcised under the statuto, in ac-
quiring real estate. Its land is not held by virtue of any such
right; nor is it required to soiwe any public use which confers
upon it any special ])rivil('g(> in this respect. It is a private
manufacturing corjx)ration which furnishes gas to individuals
and for the lighting of the ])ul>lic streets, on such torms as are
agreed upon. This, of itself, does not make It a public cor-
poration. It is not merely public Ixx^auso it has a jMiblie char-
acter. The If nd is not now, and has not been, devoted to gas
purposes by the company, and it is not clear that it is not abso-
lutely indispensable for their use at the present time. That it
may become so hereafter does not necessarily deprive the peti-
tioners of the right to acquire it if the public exigencies re-
quire it." "
§358. Foreign companies excluded from use of power of eminent
domain.
The legislature may authorize domestic companies to exercise
the power of eminent domain mthout extending the right to
foreign companies ; and the statute conferring such power is not
for that reason unconstitutional.^* A foreign company may,
however, be endowed with such power.^^
13 New York, etc., R. E. Co. v. ir. /„ re Ohio Valley Gas Co., 6
Metropolitan Gaslight Co., 6.3 N. Y. Pa. Dist. 200; 27 Pittsb. Leg. J.
326; .5 Hun 201. See also Common- (N. S.) 321; United Waterworks
wealth V. Lowell Gaslight Co., 12 Co. v. Omaha Water Co.. 21 N. Y.
Allen 77. ^ Misc. 594 ; 48 N. Y. Supp. 817. See
That an artificial gas company Cowell v. Colorado Springs. 100 U.
may be endowed with the right of S. .55; American, etc., Union v.
eminent domain, see Bloomfield v. Yount. 101 U. S. 352; Watts v.
Eichardson. 63 Barb. 437. Gantt, 42 Neb. 869; 61 N. W. Rep.
14 Consumers' Gas Trust Co. v. 104; Carlow v. Aultman, 28 Neb.
Harless, 131 Ind. 446; 29 N. E. Eep. 672; 44 N. W. Rep. 873.
1062; 15 L. R. A. 505.
TRANSPORT AT10^^ — EMINENT DOMAIN. 391
§359. Number of lines that can be laid in right of way acquired.
A gas company having acquired a right of way by the power
of eminent domain is not restricted in the size of the pipe it will
lay down, nor in the number so long as it keeps upon such right
of way.^^
§360. Laying pipes in country highways.
As a pipe line is an additional burden on the fee of a country
highway, a gas or oil company engaged in the transi>ortation of
gas or oil must condemn the fee for their use, and also obtain
the consent of the proper public officials, before it can lay its
pipe lines therein.^^
§361. Measure of damages, for taking right of way.
The court^s will presume that it is a damage to land to con-
duct a pipe line through it, without any evidence of that fact.^«
In determining the amount of damages, both present and future
damages mav be recovered.^^ The measure of damages in the
appropriation of a right of way is the actual value of the land
16 Dover Gaslight Co. v. Dover, 7
De G. M. and G. 545; 4 Gas J. 129,
176; IJur. (N. S.) 812.
A gas company cannot erect a
telegiaph or telephone line along
and on its right of way on the
ground that it is necessary to cany
on the chief purpose of its incorpo-
ration. Woods V. Greensboro, etc..
Gas Co. (Pa.), 54 Atl. R^p. 470.
See Gray v. Boston Gaslight Co.,
114 Mass. 149.
17 Board v. Indianapolis, etc., Co.,
134 Ind. 209; 33 N. E. Rep. 972;
Consumers' Gas Trust Co. v. Hunt-
singer, 14 Ind. App. 156; 42 N. E.
Rep. 640; Sterling's Appeal, 111
Pa. St. 35; 2 Atl. Rep. 105; Bloom-
field, etc.. Gas Co. v. Calkins, 1
T. and C. (N. Y.) 549; Calkins v.
Bloomfield, etc.. Gas Co., 1 T. and
C. (N. Y.) 541.
In Bishop v. North Adams Fire
District, 167 Mass. 364, 45 N. E.
Rep. 925, it is held that one owning
the fee of a highway is not entitled
to damages because of a water pipe
laid therein.
In England, see Selby v. Crystal,
etc., Ga.s Co., 30 Beav. 606; 11 Gas
J. 398; 6 L. T. R. 790; Footway,
Mitcham Gas Co. v. Wimbledon Lo-
cal Board. 30 Gas J. 600.
18 Indiana Natural Gas and Oil
Co. V. Jones, 14 Ind. App. 55; 42
N. E. Rep. 487 ; 12 Nat. Corp. Rep.
60.
10 Hyde Park, etc., Co. v. Porter,
167 111. 276; 47 N. E. Rep. 206;
affirming 64 111. App. 152. This
statement, in its effect, must not be
extended to prospective damages
caused by negligence.
392 OIL AND OAS.
appropriated, and any injury to the residue. "" In the case just
cited only an easement was taken, and the court called attention
to the difference where only an easement was taken and where
the fee was condemned. '' The object, therefore, of the legis-
lature in passing the Act," said the court in the case cited, " we
are now considering was to provide hiiid (iwners a just and ade-
quate compensation for damages incident to construction of pipe
lines over and across their lands. Such comjwnsation must be
measured by the actual damages to the freehold occasioned by
such construction, including the land appropriated and occupied,
and the relation of the remaining land thereto.'' -^ The amount
to be allowed where the line is laid in the ])ublic highway is the
difference in tlie market value of the land Ix^fore and after the
construction."" Damages may be allowed for the inconvenience
occasioned b}^the placing of boxes at a ]X)int where another line
crosses, and which would not have l)een necessary but for the
oonstructioii of such line."'^ But the right of tlie C0'mi>any lo
abandon the easement or right of way and remove its pipes can-
not, it has been held, furaish a claim for injuries apprehended
from its exercise ; nor in reducing the amount by reason of the
fact that the land 0A\Tier would, by such abandonment-, receive
back his land without a burden imposed u])on it."* But this
case on apj>eal was reversed, as indicated below.""
20 Manvifacturers', etc., Co. v. 23 McMillan v. Philadelphia Co.,
.Leslie, 22 Ind. App. 677; 51 N. E. 1 Pa. Super. Ct. G48; 38 W. N. C.
Rep. 510. The first opinion in this 222.
case, as reported in 49 N. E. Rep. 24 Clements v. Philadelphia Co., .3
946, was set aside. Pa. Super. Ct. 14; 39 W. N. C. 299;
21 Indiana, etc., Co. v. Jones, 14 reversed 184 Pa. St. 28; 41 W. M.
Ind. App. 55; 42 N. E. Rep. 487; C. 321; 28 Pittsb. L. J. (N. S.)
12 Nat. Corp. Rep. 60; Patterson v. 344; 39 L. R. A. 532; 38 Atl. Rep.
People's Natural Gas Co.. 172 Pa. 1090.
St. 554; 26 Pittsb. L. J. (N. S.) 25 Evidence of the effect upon
260; 37 W. N. C. 42^; 33 Atl. Rep. vegetation of escaping gas is admis-
575 ; Newberryport Water Co. v. sible, even upon cross examination
Newberryport, 168 Mass. 541; 47 N. where the witness has testified that
E. Rep. 533. Benefits may be con- laying pipes through the soil would
sidered. Fisher v. Baden Gas Co., not injure the land. Bloomfield.
138 Pa. St. 301; 22 Atl. Rep. 29. etc.. Gas Co. v. Calkins, 1 T. and C.
22Hankey v. Philadelphia Co.. 5 (N. Y.) 549.
Pa. Super. Ct. 148; 41 W. N. C. 27. Damages for loss of rifle range.
TKAXSPOKTATIO^' EMINENT DOMAIN. 393
§362. Damages occasioned by gas company's trespass on land.
Where a gas company commits a trespass upon land, under
the claim or assertion of a right to lay a pipe line therein, the
measure of damages is not the same as it is in proceedings to
condemn a right of way. In such an instance the land owner is
entitled to damages for any injury to the land caused by the
operation of the pij^e line. But he is not entitled, it has been
held in Pennsylvania, for destruction of crops caused by escap-
ing gas, if there be no evidence that the pijies are defective or not
properly const nicted.""
§363. Prospective damages for fires and explosions.
Damages cannot be allowed for tliose that may possibly be
occasioned by fires and explosions. The courts will not pre-
sume that gas or oil cannot be safely conducted through projier
pipes ; and it will not presume that the condemning company
will not use proper pipes or conduct its business in a safe man-
ner. Xor will it Ix^ presumed that gas or oil will be permitted
to escape so as to injure growing crops or trees, or render the
region through which it passes unsafe or undesirable to use for
living purposes. It will not indulge the presumption that
noisome smells will be ]:)ermitted to escape, to tlie annoyance of
the owner of the lands through which the pipe lines nm."^ This
is especially true if a statute makes the company liable for dam-
ages thus occasioned in the future.'^
see Holt v. Gaslight and Coke Co., Manufacturers' Gas Co. v. Leslie. 22
L. R. 7 Q. B. Div. 728; 41 L. J. Q. Ind. App. 677; 51 N. E. Rep. .510;
B. 351; 27 L.. T. (N. S.) 442. For Wolf v. Cincinnati, etc., Co.. 6 Ohio
injury to arches in street. Gaslight Dec. 159; Denniston v. Philadelphia
and Coke Co. v. St. George Vestry, Co., 161 Pa. St. 41; 28 Atl. Rep.
42 L. J. (N. S. Q. B.) 50. 1007.
26 Patterson v. People's Natural 28 Denniston v. Philadelphia Co.,
Gas Co., 172 Pa. St. .554; .3.3 Atl. 1 Super. Ct. (Pa.) .599; 38 W. N.
Rep. 575; Denniston v. Philadelphia C. 332; 27 Pittsb. L. J. (N. S.) 14.
Co., 161 Pa. St. 41 ; 28 Atl. Rep. Future prospective leaks in water
1007; Hankey v. Philadelphia Co., pipes may be allowed. Darlington
5 Pa. Super. Ct. 148; 41 W. N. v. Alleghany, 28 Pittsb. L. J. {N.
C. 27. S.) 381; McGregor v. Equitable Gas
27 Indiana, etc.. CS^ v. Jones. 14 Co., 21 Atl. Rep. 13; 139 Pa. St.
Ind. App. 55: 42 X. E. Rep. 487; 230.
394 OIL AND GAS.
§364. Removal of pipe line, damages.
In a Pennsylvania case the following rule was laid down con'
cerning damages occasioned by a removal of a pipe line :
" An entry for the purpose of removal stands, however, upon
somewhat different grounds. It is not made because of the
necessities of transportation, but because they no longer exist.
It is, therefore, the duty of the company to make the removal
at the time and in the manner best adapted to the purpose, and
least harmful to the land owner. It is the duty of the company,
upon a surrender of its easement, to fill the trench it has o|icned
so far as to substantially tO' restore the surface of the land, and
its failure to do so is just ground of a complaint. It should
make compensation for any actual injury to growing grain or
grass, and, if ]he field be in meadow, for any substantial injurv^
to the turf, beyond the mere o|>ening and filling of the trench in
which the pipe lay. Subject., however, to the limitations now
indicated, it has the right to enter and remove its pipe without
being liable as a trespasser therefor." "®
§365. Pipe line crossing right of way of railroad company.
The owner of an easement across or under a railroad track,
for tiie purpose of passing and repassing, cannot give a pipe line
.company the right to lay its line in his right of way ; and if the
pipe line company, acting upon a permission given by such
owner of the easement, lay its pipe line in his right of way it
will be liable to the railroad company in an action of trespass.^*'
But where the o^vner of land conveyed a right of way to a rail-
road company for its railroad, and afterwards discovered gas
29 Clements v. Philadelphia Co., and cannot be removed. Windfall,
184 Pa. St. 28; 28 Pittsb. L. J. (N. etc., Co. v. Tutewiler, 152 Ind. 364;
S.) 344; 41 W. N. C. 321; 38 Atl. 53 N. E. Rep. 284.
Rep. 1090; 39 L. R. A. 532, revers- so United . States Pipe Line Co. v.
ing 3 Pa. Super. Ct. Rep. 14. Delaware, etc., Ry. Co., 62 N. J. L.
A gas pipe laid in the ground 254; 41 Atl. Rep. 759; 42 L. R. A.
without permission of the land 572; Breckanidge v. Delaware, etc..
owner belongs to such land owner R. R. Co. (N. J.), 33 Atl. Rep. 800.
TRAxspoRTATiox — e:mixext domaix. 395
on his land beyond the railroad, it was held that he was entitled
to a right of way across the company's track for a gas pipe, as a
way of necessity. ^^
§366. Revocation of license.
A license to erect and maintain a reservoir and pipe line will
not be revoked by court of equity, except on the condition that
the licensee may remove his improvements, made on the faith of
the license, if it can be accomplished without material loss, or if
not, that the licensor or his gTantor make a just compensation
for the loss.*^^
§367. Route, specifying in petition — more than one route.
The exact location of a purposed pipe line need not be given
by courses and distances in the |x?tition, under the ordinary stat-
ute ; but it is sufficient to give the size of the \ii\ye, the nund)er
of feet it will traverse the land in question, and its approximate
direction.^^ As a rule a company can have only one right of
way across a tract of land ; however convenient another
would be.^^
§368. Coal mine beneath pipe line — support.
The easement of a gas company by eminent domain carries
with it the right of support for its lines; and tJie o^\Tier of the
coal has no right to remove the coal or other minerals under the
lines to their injury or detriment. The right of the owner of
the land is subordinate to the superior right of the gas com-
pany; and such superior right to tlie use of the ground appro-
priated extends to all the mineral underlying the line, including
31 Uhl V. Ohio River Ry. Co., 47 If the company does not comply
W. Va. 59; 34 S. E. Rep. 934. AWth the statutory requirements in
*3i Flick V. Bell (Cal.), 42 Pac. securing a condemnation of a right
Rep. 813. . of way, the courts will not enjoin
32 In re Ohio Valley Gas Co., 6 the land owner from interfering with
Pa. Dist. Rep. 200; 27 Pittsb. L. J. the laying of its pipe line. Quarry-
(N. S.) 321. ville Water Co. v. Fritz, 14 Lane. L.
33 McKay v. Pennsylvania Water Rev. 186.
Co.. 6 Pa. Dist. Rep. 364; 27 Pittsb.
Leg. J. (N. S.) 406.
396 OIL AND GAS.
the coal, the removal of which would endanger the safety of the
pipes. In such a case it may be sho^vIl in evidence in assessing
tlie damages, the character of the soil through which the line
will run, the deptli the line will be below^ the surface of the
ground, its proximity to the surface of the underlying coal, the
danger of the surface falling in w^hen the coal is removed, the
probable breaking of the pipe line, and the danger of gas escap-
ing into the mine, for the purjx)se of shoAving the general d(^])r('-
ciation in the market value of the land through which the pipe
line runs. The gas company has a right to the support of its
pipe lines, and this is an element to be considered in estimating
the extent to which the value of the tract as a whole is affected,
though not to estimate the value of the coal supposed to be neces-
sary to remain to afford a support. The fact that the gas com-
pany has executed a release of damages that might Ix? occasioned
by the removal of the coal does not prevent the owner of tlie
mine recovering compensation for the risk of iiijiirios to the
mine in oi^erating it.^* Dangers to the coal mine that might
be occasioned by gas escaping into the mine cannot be considered
in assessing damages for a right of way ; for the law provides a
remedy in such a case b}' an action for damages; and if the mine
owner has occasioned a break in the pipes, wiiereby the gas
escapes into tlie mine, by removing their support, he cannot re-
cover. If the gas company has released a right of support
' from the coal or other mineral underlying the surface, then
the owner of the coal may mine and remove it as freely and
fully as though no entry had been made upon tlie surface, and
for that reason it should not be taken into consideration in ad-
justing the damages to the land owners " ; ^^ and the element of
possible damages to the pipe line from a subsidence of the sur-
face cannot be consi4^red. 'Nor can evidence be admitted of a
conjectural character as to the opinions of witnessesi that there
might be a subsidence where the coal is more than one hundred
34 Davis V. Jefferson Gas Co., 147 1,39 Pa. St. 230; 21 Atl. Rep. 13;
Pa. St. 130; 23 Atl. Rep. 218. 27 W. N. C. 197.
35 McGregor v. Equitable Gas Co.,
TKAXSPOKTATION EMINENT DOMAIN. 397
feet below the surface, and therefore it would be necessary to
leave coal for a support. ^°
§369. Well pipe passing through coal mine.
A lessee of a coal mine, having only a right to remove the
coal, and such rights as are incident thereto, cannot prevent tlie
owner of tlie surface, or his lessee, drilling a gas well through
the stratum of coal to the gas or oil below, whether or not the
existence of the oil or gas was known at the time of the lease;
and the lessee cannot prevent a use of either the surface or of
the eartli below the coal stratum. lie is not entitled to dam-
ages because of the sinking of the shaft. "'*" ]^or will an injunc-
tion be granted where the pipes pass through that jX)rtion of the
mine from which the coal has been removed, even though the
charge is that there will 1k^ danger from explosions when such
dangei' is denied by counter aihdavits because of the extra pre-
cautions that are being used to prevent an explosion. Nor will
a preliminary injunction be awarded to prevent the boring
where the pipe passes through that ]xirtion of tlie mine exca-
vated, if tlie remaining coal can be removed without serious
interference by other passageways and tlie o\vner of tlie coal can
be awarded a judgment for tlie value of the coal taken out on
final hearing.^* Xor will the fact that one or more wells have
already been sunk prevent the sinking of other wells, unless posi-
tive danger should be occasioned therebv.^"
36 Wallace v. Jefferson Gas Co., Mellon. 152 Pa. St. 286; 25 Atl.
147 Pa. St. 205; 23 Atl. L,ep. 41G. Rep. 597; 18 L. R. A. 702.
On the same points see Penn. Gas 38 Rend v. Venture Oil Co., 48
Coal Co. V. Versailles Fuel Gas Co., led. Rep. 248.
131 Pa. St. 522; 19 Atl. Rep. 933. so Commonwealth v. Sauters. 6
37Chartiers Block Coal Co. v. Kulp 407. See Robbins v. Guffey,
48 Leg. Int. 462.
CHAPTER XIX.
TRANSPORTATION OF OIL AND GAS.
§370. Limit of discussion.
§371. Injmies occasioTied in transporting oil by roa-son of dofpotive cars
or track.
§372. Defective oil tank. — Car. — Remote liability — Intervening agency.
— Crude petroleum not a dangerous agcnc}'.
§373. Oil shipped on trains carrj'ing other good.s.
§374. Shipper's liability to servant of carrier. Naphtha. — Petroleum. —
Dangerous agency.
§375. Injury to passengers. — Train wreck.
§37(5. Cuiiosity seekers. — Exploding oil..
§377. Allowing oil to escape from pipe line.
§378. Inspection of pipe line.
§379. Oil illegally stored at railroad station.
§380. Storing oil in warehouse.
§381. Thief setting oil on fire.
§370. Limit of discussion.
In another chapter we have discussed the subject of Eminent
Domain as applied to gas and oil pii:>e lines, and shall not here
repeat what was there said ; but shall only make use of the fo v
cases there are on the subject of transportiition of oil and ga&,
whether by the ordinar>^ methods of transportation, or bv rail-
road or water, or by pipe lines.
§371. Injuries occasioned in transporting oil by reason of de-
fective cars or track.
, A railway company or common carrier may be liable for in-
juries to property adjacent its right of way occasioned by the
use of improper cars, or by allowing its track to become out of
repair whereby a train is derailed, oil tanks it is caiTying are
bursted open, the oil set afire, the oil reaching adjacent property
and setting it on fire. Thus where a railroad employe, charged
with the duty of loading two tank cars with oil from an adjacent
398
TR.\XSPORTATION. 399
reservoir, uncoupled tlie cars in order to move the one filled
along the track to make room for tlie other one, when, by reason
of a defective brake on it, it got away, ran down the track a mile,
collided with a locomotive, burst the tank, set the oil on fire,
which spread to property adjoining the right of way, which was
burned down, the railroad company was held liable, for the rea-
son tJiat tlio brake was defective, and if a good one had been
u|x»n it tlie car would not have got away and tliere would have
been no collision. It was considered that tlie railroad com-
pany's serv-^ant was in charge of both cars, and whatever he did
was the act of tlie company.^ So where an oil train was de-
railed by reason of a defective track, the tanks bursted, the oil
set on fire, which spread to adjoining property, the railroad
company was held liable, tlie court saying:
" The cases cited in the original opinion, as well as tlie au-
thorities relied on by appellant, by reason and analogy, support
the proposition that where a railroad company negligently and
carelessly runs a heavy freight train, consisting, in part, of sev-
eral cars of oil, over a defective and unsafe track, tlirough a
city, in die night, at a high and dangerous rate of speed, towit :
thirty-five miles an hour, in violation of an ordinance, it is
guilty of a positive \vrong, and not a mere passive n^ligence,
and is liable for tlie loss sustained by tlie burning of the pro]>
erty of the adjacent land o^^^ler, occasioned through tlie ^vi'eck-
ing of the train and tlie consequent flowing and burning of the
oil, as the proximate and natural result of such negligence,
under the circumstances alleged in tlie complaint. It was not
necessaiy to aver in the complaint tliat after tlie wreck occiuTed,
the company was then and there guilty of any other and addi-
tional act of negligence which caused the burning oil to run
down hill onto appellee's land. ]^othing could have been done
after the wreck occurred to prevent such a result. The imme-
diate flowing of the burning oil onto and over appellee's prem-
ises, and tlie consequent burning of her property, was, under
the circumstances attending the disaster, inevitable. In other
words, in conclusion on this subject, it will suffice to say that
lOil Creek, etc., R. R. Co. v. Keighron, 74 Pa. St. 316.
400 OIL AND GAS.
tlie Avreck of the train, tlie ignition, explosion and burning of
the oil, and tlie consequent destruction of appellee's property,
are shown, by the averments in the complaint, to have been the
natural and proximate result of the negligence of appellant." "
But where there was a landslide which covered the track of
a railway comi)any, into which an oil train ran, was derailed,
the oil tanks were broken open, the oil ignited from the fire in
the locomotive and ran down a creek running alongside the track
to the plaintiff's property, four hundred feet below, and set it on
fire, tlie railroad ooujpany was hold luit liable; for the reason
that it had not been guilty of any negligence, the landslide hav-
ing occurred but a short time before the wTcck, and it being
impossible to stop the train between the place it could have been
first seen by the engineer and the place where the train was de-
railed.
" To hold the defendant answerable for tliis loss," said the
court, " would be on the same principle that the defendant would
be answerable for all losses occasioned to other |>ersons by reason
of the burning oil floating down the current. Tf that burning
oil, thus carried, dii'ectly fired bridges, wharves, warehouses
and other property, over and along the stream for a great dis-
tance, every o^\Tier could recover his loss from the defendant, if
it is liable to the plaintiffs. If the current of water is not an
intervening agency, the cause is proximate ; if it is, tlie cause
is remote. The result depends not on time or distance, but on
the presence or absence of an intervening agencr^. ^\Tletller the
fire be carried by running water over which the defendant has
no control, or through its oyvn woodshed, or through the ware-
house of another, can make no difference, unless it be held that
water is not an intervening agency in carrying and communi-
cating the fire." ^ Where burning oil flowed down from neigh-
boring property upon the defendant's pipe line, causing it to
burst and throw a sprafy of burning oil on the plaintiff's house,
thereby burning it down, the defendant was held not liable, for
the pipe line was not the proximate cause of the injury. The
2 Lake Erie, etc.. R. R. Co. v. Low- 3 Hoag v. Lake Shore, etc., R. R.
der, 7 Ind. App. 537 ; 34 N. E. Rep. Co., 85 Pa. St. 293.
447, 747.
401
TKAXSPOUTATIOIS .
company was not bonnd to foresee and provide against the burst-
ing of its pipe line.''
8372. Defective oil tank - car - remote liability - intervening
agency. Crude petroleum not a dangerous agency.
We take the following statement of a case deeided in the
United States Court of Ap,*als, where a defective «^1 tank was
praeticallv the cause of a very destructive fire, but for wh.ch
the shipping company was held not liable:
" That i; Xovember, 1889, the Standard Oil Com,>a«y
shipped a tank car of cri.de ,*troleum containing 6,000 g.illons
fronfLima, Ohio, to tl.e Fort Scott Gas Co. of Fort Scott
Kansas. The tank car had a discharge pi,^ in the bottom and
about the center of the tank some four inches ■" ''-""j
proicctin^ alK,ut six inches below the bottom. The projection
was threaded to receive a heavy cap screw. Wi.hni tlie ta^<
the discharge pir« is fitted with a heavy valve to prevent he
escape of oil. The valve rests upon a shoulder in the upi«r
part^f the discharge pipe. Below the shoulder there are four
Leaves made in the valve, to penuit the flow of oil upon ra-
in., the valve. An inflexible iron rod is attached to the ^ahe,
extending through the dome ou top of the tank and proiecti.ig
a foot 01 more above it ^Vithin the tank at the top there is
a coiled wire spring arranged to bol.l the rod down and keep the
rod in position, closing the outlet. To discharge the cnteut
of the car through die lower discharge pipe the cap is unscrewed
and tlie pipe coupling attached. The valve, by means of tl.e
rod, is tlieu lifted and the oil permitted to flow through the out-
let into the pipe and conducted U> the reservoir prov.ded for .Is
reception. The tank car arrived at Fort Scott on the 1 1 tli day
of Xovember and was received by the consignee on the next day
The gas company caused the car to be removed from the yard of
.Behlin- V. Southwestern, etc., one for the court and not for the
^L in th. cai was heW to he ^^^l^^;:' ^^.^^Z ^^
402 OIL AND GAS.
the railroad company, where it was delivered and to be placed
on the switch track of another company located on a street a
half mile away bctw^een the property of the gas company and
the steam flour mill of the plaintiff in error. This was done
for the purpose of piping the petroleum contained in the tank
into the reservoir of the gas company, located beyond the mill
and upon tJie farther side of an intercepting street. The rail-
road track upon which the tank car stood was three feet distant
from the furnace room of the mill, and tbe latter being three
feet below the level of the railroad track at that point. The
car was placed directly opposite the furnace room of the mill.
On the afternoon of November the ISth before or at the time of
the removal of the car on that day, it was observed by the en-
gineer of the switch engine that the tank was leaking, the oil
dripping at the outlet of the car and forming a pool on the
ground. On the morning of the 19th of J^ovember two servants
of the gas company undertook to discharge the oil into the reser-
voir of the gas company, through a pipe laid from the reservoir
to the tank car. One of them adjusted the rod at the top of
the car and reported to the other that it had been pushed down,
indicating the valve to be in proper jjosition. The other went
under the car with a wrench to remove the cap and attach the
pipe leading to the reservoir. He obseiwed that tlie cap was
loose and removed it with his hand ; and it is stated in the brief
of the counsel of the plaintiff in error — ^\^thout reference to
the record of verification of the statement — that the man olv
served as he went under the car for the purpose of removing tJie
cap and attaching tlie coupling, that the oil was leaking some,
but he did not deem that fact of moment, sup|X)sing that tlie
valve was in proper position, and would prevent the discharge
of petroleum until it was raised. Upon removing the cap, the
oil flowed out before the coupling could be attached and despite
the efforts made to pi^fevent it and before the car could be re-
moved from its ix)sition, the oil flowed down tlie descent, through
an open window, into the boiler room and also upon some hot
ashes, located at the rear of the engine room and boiler house,
and some eight feet distant from the car and caught fire, where-
by the mill and its contents were destroyed and property of the
tra:^^spoktation. 403
value of $107,000 consumed. After tlie fire and upon exam-
ination of the tank, it was discovered that it contained no valve ;
that it was removed, but how, or when, it is not disclosed bj the
evidence, but presumably before tke tank car was filled with oil
for shipment. The evidence established that crude petroleum
mil give off a vapor or gas which will flash at a temperature of
90 degrees, igniting by contact with fire, and explosive upon its
ignition ; that it is in common use for fuel purposes ; that it is
as volatile as turpentine. The action against the Standard Oil
Company by the mill o-wmer is predicted upon negligence in
omitting to have a projier valve in the outlet of the tank. At
the trial of the cause and upon a conclusion of the evidence for
the plaintiff, the court directed the jury to find a verdict for
the defendant." In passing upon the liability of the St-andard
Oil Company, the court used the following language :
" We are thus brought to the question whether crude petro-
leum may properly l>e classified as a ' dangerous agency within '
the meaning of the rule. Tt is an extensive article of commerce,
transported by rail to all parts of the land, shipped by steamers
:tnd sail vessels to all parts of the world. It is innocuous of
itself. It is dangerous only when in considerable quantity it
is brought in contact with fire. It is in general use for fuel
and otlier purposes. It is no more volatile than turpentine, no
more explosive than gas; does not necessarily, in handling, in-
volve immediate danger to any one. It is not a dangerous
agency in itself, but becomes such by subjection to a high degree
of heat or from actual contact Avith fire. The shipment of such
an article of commerce casts upon the shipper a certain duty to
the public — that of providing a suitable vehicle for the petro-
leum in all resi>ects adapted to the purpose of carriage and able
to encounter the usual risks of transportation reasonably to be
anticipated. We tliink tbat to l>e the true limit of the shipper's
duty, and that duty as it appears to us in this case was properly
discharged. The petroleum was contained in a tank impervious
to fire. The shipment reached its destination in safety. The
case is not like that of tlie shipment of explosives, the character
of the shipment being concealed. Here the contents of the tank
was declared by the peculiar construction of the car. The prop-
404 OIL AND GAS.
erties of the petroleum were known to the consignee and to the
public equally with the defendant. They are matters of com-
mon knowledge. There was here no disguise and no conceal-
ment.
" With tlie knowledge (of the oil leaking) the .company placed
the car within three feet of the engine and boilers of the mill,
located below the grade of the railroad, and with knowledge of
the leakage, sufficient, in view of the dangerous proximity of
fire, to the place, a careful person, upon diligent inquiry, un-
dertook to discharge the oil in close proximity to hot ashes, and
near an open window of the boiler room. We cannot say that
the negligent omission of the valve ' necessarily set the other
causes in operation,' nor can we say that the injury was the
natural and probable consequence of the negligent act. In
marshalling the probable consequences, which ordinary sagacity
should have foreseen as probably resulting from the omission
of the valve, it would, as we conceive, appear unlikely and ab-
normal that this injury should result. We are of the oinnion
that tlie intervening and independent act of the gas company
was tlie efficient cause, self-operating, by which the negligent
act of the defendant was rendered effective to an injury that
was not the probable and natural consequence of the act."
§373. Oil shipped on trains carrying other goods.
. If a railroad company ships oil on a train carrying other
goods and merchandise, it must take every available precaution
against the communication and spread of fire, if it should occur.®
It must exercise the same degree of care in handling and trans-
porting combustible oils as is exercised by merchants and in-
surers in dealinff with such articles.'^
*t3
§374. Shippers liability to servant of carrier. — Naphtha —
petroleum — dangerous agency.
A shipper of naphtha should be careful to so mark the bar-
rels or casks in which it is shipped that it can be readily ascer-
« Empire Transportation Co. v. ' Henry v. Cleveland, etc., R. R.
Wamstta, etc., Co., 63 Pa. St. 14. Co., 67 Fed. Rep. 426.
TR.VNSPOKTATION. 405
tained what is in such barrels or casks, and thus put the servants
of the carriers on tlieir guard, so that tliey will be able to avoid
danger in coming in contact with tlie oil. Thus where naphtha
was put in leaking barrels having white heads, across which was
written the words " Unsafe for illuminating purposes," and the
naphtha was billed, with other barrels of petroleum, as carbon
oil, and an explosion was caused by a servant of the carrier
bringing a light too close to the leaking barrels, it was held
that the shipper was liable, tlie words on the barrel heads and
in the bill of lading not being enough to apprise those handling
the oil of its dangerous character. In this case it was insisted
that the servant was guilty of contributory negligence in going
into the car with a light ; but it was held that the plaintiff could
show that he supposed the car was loaded with ordinary oil and
prove by a witness that there was no danger in going into a car
loaded Avith such oil, with a light. It was also held that the
shippers might show that wooden barrels were safe, and that
naphtha was ordinarily shipjoed in that way by prudent business
men ; and that it Avas no defense that the carrier's officers had
agreed that the naphtha might be shipped in the manner in
which it was put up'.* Petroleum, however, is not a dangerous
agency within the rule that he who uses it does so at his peril
and must respond tO' injuries thereby occasioned, not caused
by external natural consequences or by the interposition of
strangers.®
§375. Injury to passeng'ers. — Train wreck.
A freight train carrying two tank cars of naphtha, one of
kerosene oil, a car of coke and a caboose, was wrecked, blocking
the right of way, and the cars became afire. On the arrival of
a passenger train, tliose in charge of it began transporting the
passengers around the wreck to another train on the other side.
A gap w^as opened in the fence along the right of way so that
« Standard Oil Co. v. Tierney. 02 See Barney v. Burstenbinder, 7 Lans.
Ky. 367; 17 S. W. Rep. 1025; 14 210.
L. R. A. 677; 13 Ky. L. Rep. 626; 9 Cleveland, etc., Ry. Co. v. Bal-
Standard Oil Co. v. Tierney, 95 Ky. lentine, 84 Fed. Rep. 935 ; 56 U. S.
633 ; 96 Ky. 89 ; 27 S. W. Rep. 983. Apps. 266 ; 28 C. C. A. 572.
406 OIL AND GAS.
the passengers could be transferred aronnd the fire a safe dis-
tance from it, and were transferred in safety to a place beyond
the wreck where they were free from danger. The plaintifT,
following the direction of the company's officers, passed through
the gap, around the fire and burning oil and re-entered through
a second gap upon the right of way by passing through the gap
in the fence made by such officers so he could reach the place
where he was to take the train. After going through tliis last
gap he went back along the railroad track, on the right of way,
toward tlie wreck, although the oil was burning fiercely with
a loud noise, and arriving at a point about two-thirds of the
distance between the second gap and the wreck, he stood there
half an hour watching the fire, when the naphtha and oil ex-
ploded, and he was badly burned. When the explosion oc^
curred, the traii^to carry the passengers had not yet arrived ;
and the evidence of the company tended to show that its agent
had indicated a place where the passengers were to remain until
the train that was to carry them had arrived, and that such place
was a safe one, and if he had remained there he would not have
been injured. It was held that the dangers were so apparent
that plaintiff should have avoided the danger ; that the railroad
company had the right to assume that he would occupy the place
to which he had been conducted and would not expose himself to
danger ; that it was not bound to restrain him from going near
the wreck, that he, at the time of the injury was still a passen-
ger, having a right to complete his journey on the company's
cars, and the taking up of the dangerous position near the burn-
ing tank might bar him from a right to recover damages for
his injuries, but it did not affect his rights as a passenger; that
as the company did nothing to invite him to the place of danger,
he had to exercise ordinary care for his own safety; that the
company was bound to exercise only ordinary care and prudence,
and that the question of negligence on the plaintiff's part, as
well as on the defendant's, were questions for the jury to deter-
mine under proper instructions. A new trial was granted.'''
10 Conroy v. Chicago, etc., Co., 96
Wis. 243; 70 N. W. Rep. 486; 38
L. R. A. 419.
TRANSPORTATION. 407
§376. Curiosity seekers. — Exploding oil.
A train of cars was run into oil cars standing on a side track,
by reason of a switch having l)<3en negligently open, some of the
tanks burst, and the oil took fire. At the time the plaintiff was
two miles away. He went to the scene of the disaster, on ar-
riving there found the fire burning fiercely, the oil being on
fire and making a loud noise like steam escaping from an engine.
He went ujxtn the premises of his OA\m free will. The oil ran
along the track and set fire to oil tanks tliat had not been bursted
by the collision, and which burst and injured him. Two hours
elapsed after the wreck and before the explosion, and the com-
pany could have removed the unbursted tanks to a place of safety
and extinguished the fire. The plaintiff claimed no warning
had been given of the danger of exploding tanks ; that at the
time he was in the exercise of due care for his own safety, and
that he was assisting in putting out the fire at the request of one
of the seiwants of the railroad company. The court held that
petroleum only became a dangerous agency when heated; that
the plaintiff was not a trespasser, but was engaged in a laudable
work ; tJiat the company was g^lilty of negligence in leaving the
switch open whereby the collision was occasioned, and also in
not stopping the fire or removing the cars to a place of safety so
the fire could not reach them, and in not giving a sufficient warn-
ing to the injured person, and that if the plaintiff exercised due
care and caution he was entitled to recover.^^ A companion of
the plaintiff was injured, under the same circumstances and
conditions, by the same explosion ; and his case being appealed
he was denied a recovery. The gTound of the denial was that
" negligence to be actionable, must occur in a breach of a legal
duty arising out of a contract or otherwise, or owing to the per-
son sustaining the loss " ; and the court defined a " legal duty
to be " that which the law requires to be done or forborne to a
determinate person, or to the public at large, and as a correla-
tive to a right vested in such iDcrsons, or public at large " ; that
the plaintiff was only a licensee, having no gi*eater rights than
11 Henry v, Cleveland, etc., Ry., 67 Fed. Rep. 426.
408 OIL AND GAS.
a city fireman called to extingriisli a fire and -entering a burning
house ; that the negligent act in leaving the switch open was a
hreadi of no duty to the plaintitT, wlio was two miles distant at
the time, and who voluntarily came to the scene; and that the
fact he was assisting the servants of the company' to put out the
fire could not aid him, for the danger was obvious.^"
§377. Allowing oil to escape from pipe line.
A pipe line company is bound to safely keep the oil it is trans-
porting in its pipes, and not allow it to escape; and if it does
escape, to the damage of another (such as spoiling his well or
springs or cro}>s), it is liable in damages for the injury. Such
an act is the creation of a nuisance.^^
§378. Inspection of pipe line.
It is the duty of a pipe line company to keep a careful watch
over its lines, to detect leaks and imperfections in them and pre-
vent oil escaping. If it do not, its failure to do so may he such
negligence on its part as will render it liable. Thus where a
contractor putting in a sewer for a city, imcovered a section of
an oil pipe line tliat was empty, and in l)lasting rock broke it
apart at one of its joints, from which two weeks later oil escaped
by reason of pnmping having been resumed, causing personal
injuries resulting in death, the company was held liable on the
ground that it had failed to inspect the line for two weeks, at
the end of which time the pumping of oil was resumed and
continued for a period of two and a half hours Avhen it was
notified by the employees at the other end of the line that no oil
was fiov/ing.^*
12 Cleveland, etc., Ry. Co. v. Bal- i3 Hauk v. Tidewater Pipe Line
lentine, 28 C. C. A. 572; 56 U. S. Co., 153 Pa. St. 366; 26 Atl. Rep.
App. 266; 84 Fed. Rep. 935. As to 644. See Clements v. Philadelphia
,the right of a city fireman>injured Co.. 184 Pa. St. 28; 41 W. N. C.
in a building while extinguishing a 321; 38 Atl. Rep. 1090; 39 L. R. A.
fire, see Gibson v. Leonard, 143 111. 532. See Lee v. Vacuum Oil Co.,
182; 32 N. E. Rep. 182, affirming 54 Hun 156; 7 N. Y. Supp. 426.
37 111. App. 344; Woodruff v. i* Lee v. Vacuum Oil Co., 54 Hun
Bowen, 136 Ind. 431; 34. N. E. Rep. 156; 7 N. Y. Supp. 426. The ques-
1113. tion of negligence was held to be a
proper one for the jury.
TR.VXSPOKTATIOX. 409
§379. Oil illegally stored at railroad station.
Oil was stored or permitted to remain at a railroad station
in violation of a statute, or rather it had been kept there longer
than the statute permitted it to be kept. There were thirty
barrels, some full, some partly full and some empty. The plat-
form on which these barrels were standing was about four feet
above the ground, old and rotten, had rubbish beneath it, and
was soaked with oil. A teamster, not connected with the rail-
road company, but having a right to go upon the premises, while
upon this platform, lighted his pipe with a match and threw
downi the burning mat<:'li on the oil soaked boards, from which
a fire was started. The fire spread to and burned the pro]ierty
of others. The court, assuming that tlie company had violated
the statute by keeping the oil on the platform longer than the
statute allowed it to do so, held that the proximate cause of the
injury was the act of the teamster and refused to consider any-
thing back of that act, on the ground that the company could
not anticipate that a res]X)nsible person would throw a lighted
match in the place he did and start a fire. The court also de-
clined to hold that the negligence of the company was concur-
rent with that of the teamster, for the reason that the negligence
of the former preceded that of the latter and was an existing
fact when his negligence intervened ; and directed a verdict for
the defendant"
§380. Storing oil in warehouse.
Oil of a highly infiamniable kind, awaiting shipment, had
been stored for two days in a warehouse before ^he warehouse
was set on fire. The Avarehouse was set on fire without the
neglect of the owner; and the fire from it spread to an adjoin-
ing warehouse and destroyed it with the greater part of its
contents. The owner of the second warehouse sued the owner
of the first, claiming that because of the explosion of the oil
15 Stone V. Boston, etc.. Ry.. 171
Mass. .536; 51 X. E. Rep. 1; 41 L.
R. A. 794.
410 OIL AND GAS.
the fire from the first warehouse was suddenly precipitato(i
upon his warehouse, and that if it had not been for the explod-
ing oil, a gi-eater portion of the contents of his warehouse would
have been removed before the tiro, which was burning in the
warehouse at the time of the cxpl<.>sion, could have extended to
his building. The court held that tlie questions of proximate
cause and whetlier the oil had lM?en in the warehouse for an
unreasonable length of time were i'nv tiic jurv, and lli:it the
plaintiff might show that the warehouse and its tloor were soaked
with oil.'"
§381, Thief setting oil on fire.
Crude petroleum was carried in a tank on a lighter used in
the oil trade. The lighter, with others, lay at a pier, with no
w^atchman on boJIrd. Tt was forced open by a thief, who, in
exi>loring the locker %vith a lighted match, set fire to the gas
or fumes arising from the petroleum, thcrolvy causing an explo-
sion and a fire. The fire destroyed the lighter aiul another one
lying alongside of it. Suit was brought against the owner of
the lighter on which the explosion occurred to hold him liable
for the destruction of the other lighter; but the court held that
he Avas not liable, for the escape of the gas into the locker was
an accident, and the presence of a lighted match in the locker
in the hands of a thief was not the natural result of tlie absence
of a watchman."
16 Wright V. Chicago, etc., Ry. i7 Sofiled v. Sommers, 9 Ben. 526 ;
Co., 27 111. App. 200. Fed. Cas. No. 13, 157.
CHAPTER XX.
LEGISLATIVE AND MUNICIPAL CONTROL.
§382. Gas a dangerous agency. — Police powers.
§383. Regulating pressure in pipes.
§384. Prohibiting transportation of gas bej'ond the State.
§385. Plugging abandoned wells. — Waste of gas.
§386. Preventing waste of gas. — Flambeau lights.
§387. Waste of gas in operating oil well.
§388. Inspection of oil.— Tests.
§389. Ordinance regulating storage of oil.
§300. Regulating sale of naphtha by United States.
§3!)!. A diarter is a contract.
§392. City cannot fix rates without statutory authority.
§393. Municipality regulating rates after ordinances granted.
§394. Rates fixed in ordinance granting franchise.
§395. Rates fixed by city in its consent to assignment of franchise right.
§396. Gas company accepting provision.s of subsequent ordinance. ,
§39". Prohibition to change for specified time.
§398. Police power.— Rates.
§399. Municipality regulating gas companies.
§400. Power to diange rates. — Rates established must be rea.sonable.
§401. Gas companies <iuasi public corporations. — Rates may be changed.
§402. Same continued. — Rates may be changed.
§403. Same continued. — Riites may be changed.
§404. ^lunicipality delegating power to change rates.
§405. Annexing territory after contract made.
§406. Police power regulations.
g382. Gas a dangerous agency — police powers.
Gas, and especially natural ijas, has always been regarded as
a dangerous agency, and must be used with care whenever it
comes in contact wnth propert.v or persons. That it is a danger-
ous agency is a matter of common knowledge, of which the
courts will take judicial notice.^ It is in a high degree inflam-
mable and explosive. Xot only is it dangerous as an explosive,
but it is dangerous to life and injurious to herbage, shrubbery
1 Sec. 41.
411
412 OIL AND GAS.
and growing trees under certain circumstances. It is in fact
as dangerous an agency as gunpowder, which has always been
regarded as a proper subject of legishition, even to the extent of
excluding it from thickly settled communities. Therefore,
under the i>olice powers of a State, it is a proper subject of
regulation. " The public safety and welfare," said the Su-
preme Court of Indiana, " is the highest consideration in all
legislation, and to this consideration private rights nuist yield.
'No man has a right to so use a dangerous species of property
as to put the safety of others in peril. Liberty does not imply
the right of one man to so use property as to endanger the
property of others, nor does ownership imply any such right.
This is rudimental. It must, therefore, be ti*ue that the o\vTier
of property of such dangerous nature as to require regulations
to prevent injur;)^to others can have no right paramount to tlie
police power. It is not too much to say tliat against the police
power there is no such thing as a vested right. If the position
of the appellee's counsel is tenable, then after a corporation has
invested money in natural gas pipes, machinery and appliances,
there can be no subsequent legislation, although the use of the
pipes bought might put in peril towns, houses, and even human
life along the entire line. The law is subject to no such re-
proach as a rule like that for which appellees contend would
bring upon it. JSTo investment, however great, can so vest a
right as to preclude the just exercise of a governmental power
such as that under which regulations for the prot-ection of the
health and safety of persons are enacted. This principle is
supported by many decisions." ^
§383. Regulating pressure in pipes.
In the exercise of its police ]X)wer for the protection of life
and property, a State may regulate and prescribe the pressure
in the gas mains of a company ; and it may fix a limit for such
2Jamieson v. Indiana Natural Com. Rep. 613; Benedict A^ Colum-
Gas, etc., Co., 128 Ind. 555 ; 28 N. E. bus, etc., Co., 49 N. J. Eq. 23 ; 23
Rep. 76; 34 Amer. and Eng. Corp. Atl. Rep. 485; Given v. State
Cas. 1; 12 L. R. A. 652; 3 Interstate (Ind.), 66 N. E. Rep. 750.
LEGISLATIVE CONTROL. 413
pressure even though it has the effect to prevent the conveyance
or transportation of gas, as natural gas, beyond the limits of the
State, a thing of itself a State cannot prevent. " The pipes for
the transportation of the gas," said the Supreme Court of In-
diana, " must be laid in our soil ; they must cross our fanns,
pass through our towns, and cross our highways. There are
many persons, many houses, and much property along the line,
within the borders of this State. There is danger to our in-
habitants, and to their property from the use of defective or
insecure pipes, as well as from an improper use of them. If a
volatile, inflammable, and explosive substance, such as natural
gas, can not be conveyed in pipes, under an unsafe pressure,
without danger to those whom it is the duty of the common-
Avealth to protect, then regulation is not unreasonable or illegal
in itself. The danger is to our citizens in their own houses, and
on their own thoroughfares. It cannot, we suppose, be success-
fully asserted that a gas company could use pipes of paper, or of
spider-webs, at their pleasure ; and yet, if there is no power in
the State to regulate tlie character of the pipes, or the like, this
conclusion must result. They, indeed, may do what they
please. The danger to be avoided is within the State; the pro-
tection of the law ought, upon every principle of justice, to be
commensurate with the danger. The legislation is local, is for
local protection, and for, presumptively, at least, no other pur-
pose. Gas companies acquire the right to lay pipes by virtut
of the power of eminent domain resident in the State, and surely
if they take the benefit of our laws, and use our lands and min-
erals, they must yield obedience to such laws as are framed for
the local protection. ... It seems true beyond fair con-
troversy that the State, by virtue of its inherent jK)wer, may
provide that pipes shall be laid in trenches, or shall Ix^ of suffi-
cient strength to be safe. Otherwise they might be laid on the
ground subject to the action of the elements, or 1x3 of inadequate
strength and thus be fruitful of danger to persons and property.
It also seems entirely clear that the State may declare that gas
shall not be confined in insufficient tanks or reservoirs, as was
done respecting petroleum in States where it is obtained. If
414 OIL AND GAS.
it be true tJiat such regulations may be made it must also be
true that pressure may be regulated, and that the State must,
to a gTeat extent, be judge of the nature and character of the;
regulations required. The local character of such a substance
as natural gas is, Ave repeat, marked and peculiar. It is a
natural product, and its source is in the soil, or rocks of the
earth. It is as strikingly local as coal or petroleum, and yet
no one has ever questioned the power of a State to enact laws
governing mining. If it be not true that the mining and con-
veyance of natural gas may be regulated for the protection of
persons and property, it may be true that many mining laws
are void. Coal oil is subject to inspection and regulation, and
so must be natural gas, for it is more dangerous than coal oil.
It is so essentially local that only local regulations can be ef-
fective or appropriate. It is found in very few localities, and
the character of locality is impressed upon it more clearly and
strongly tlian upon almost any other natural product in the
world." It was held in pursuance of this line of reasoning,
that a statute providing that gas pipes for transporting of
natural gas should be tested to at least four hundred pounds
pressure to the square inch, and gas " should not be transjxtrted
in such pipes at a pressure exceeding three hundred pounds per
square inch, or otherwise than by the natural pressure of the
gas flowing from the wells," was valid ; although the effect of
this regulation was such that gas could not be transported be-
yond the State line where the distance it was desired to trans-
port it was a long one.^
sjamieson v. Indiana, etc., Co., Ind. 679; 59 N. E. Rep. 169. In
128 Ind. 555 ; 28 N. E. Rep. 76 ; 34 this last case it was held that an in-
Am. and Eng. Corp. Cas. 1; 12 L. dividual cannot maintain an injune-
R. A. 652; 3 Inter. Com. Rep. 613; tion to prevent an unlawful trans-
Benedict V. Construction, etc., Co., portation of gas, unless he suffers
49 N. J. Eq. 23; 23 Atl. Rep. 485; an injury peculiar to himself. See
IManufacturers' Gas and Oil Co. v. also Richmond Natural Gras Co. v.
Indiana, etc., Co., 155 Ind. 566; 58 Enterprise Natural Gas Co. (Ind.
N. E. Rep. 851; Manufacturers' Gas App.), 66 N. E. Rep. 782.
and Oil Co. v. Indiana^ etc., Co., 156
LEGISLATIVE CONTROL. ' 415
§384. Prohibiting transportation of gas beyond the State.
Natural gas is an article of commerce, although not an or-
dinary article of commerce. While in the earth it is not a com-
mercial commodity ; it becomes so only when it ceases to be a
part of the real estate and becomes personal property. So far
as it is a commercial commodity the State cannot prohibit its
transportation to another State by direct legislation ; and a
statute enacted for that purpose is void, on the ground that it is
an infringement of that clause of the Federal Constitution giv-
ing Congress the right to regulate commerce between the States.*
But this does not prevent a reasonable regulation of the pres-
sure in the pipes, although the effect of such regulation is to
prevent the transportation of gas a long distance, and to a very
great extent confine its use to the limits of the State.^
§385. Plugging abandoned wells — waste of gas.
A penal statute which requires all wells to be so used as to
prevent the escape of gas or oil into the open air, without being
confined in pipes " or other safe receptacles for a longer period
than two days next after " it has been struck in such wells ; re-
quiring all abandoned wells to be plugged in a certain manner ;
and providing that if the o^vner does not plug them within the
two days' limit anyo^\aier of lands adjacent to them or in the
vicinity may enter and plug them and recover the cost of plug-
ging from their owner, is a valid exercise of the public power ;
and the State may, in its sovereign capacity, maintain a suit to
enjoin waste in violation of such statutes, on the ground that
such waste is a nuisance. The court said, in passing on such a
statute, that natural gas in the ground was no more tlie prop-
erty of the owner, so long as it remained there, than
the air or sunshine that floated over such ground ; and therefore
* State V. Indiana, etc., Co.. 120 128 Ind. 55.5; 28 X. E. Rep. 76; 34
Ind. 575; 22 N. E. Rep. 778; 29 Am. and Eng. Corp. Cas. 1; 12 L.
Amer. and Eng. Corp. Cas. 237; 6 R. A. 652; 3 Inter. Com. Rep. 613;
L. R. A. 579; 2 Inter. Com. Rep. Benedict v. Columbus Construction
758. Co.. 49 N. J. Eq. 23; 23 Atl. Rep.
5 Jamieson v. Indiana, etc., Co., 485.
416 OIL AXl) GAS.
the claim made that such a statute prohibited the owner of the
gas to do with it as he pleased was not well taken. " It is not
the use of unlimited quantities of gas," said the court, " that
is prohibited, but it is the waste of it that is forbidden. The
object and policy of that inhibition is to prevent, if possible, the
exhaustion of the storehouse of nature, wherein is deposited an
element that administers more to the comfort, happiness, and
well being of society than any other of the bounties of the earth.
Even if the appellee cannot draw oil from its well without
wasting gas, it is not denied that it may draw gas therefrom,
and utilize it without wasting the oil. But, even if it cannot
draw oil from such wells without wastiug gas, and is forbidden
by injunction so to do, it is only applying the doctrine that the
owner must so use his own property as not to injure others. It
may use its weUs to produce gas for a legitimate use, and must
so use tliem as not to injure others or the community at la:ge.
The continued waste and exhaustion of the natural gas of In-
diana tbrough appellee's wells would not only deny to tlie in-
habitants the many valuable uses of the gas, but the State,
whose many quasi-public corporations have many millions of
dollars invested in supplying gas to the State and its inhab-
itants, will suffer the destruction of such corpora cions, tlie loss
of such investments and a source of large revenues. To use
appellee's wells as they have been doing, they injure thousands
and perhaps millions of the people of Indiana, and the injury,
the exhaustion of natural gas, is not only an irreparable one,
but it will be a gi-eat public calamity. The oil appellee pro-
duces is of very small consequence as compared Avitli that
calamity which it mercilessly and cruelly holds over the heads
of the people of Indiana. . . . We had i>etroleum oil more
than a third of a century before its discovery in this State, im-
ported from other Stages, and we could continue to do so if the
production of oil should cease in this State. But we cannot
have the blessing of natural gas unless measures for the preser-
vation tliereof in this State are enforced against the lawless.
We therefore conclude that the facts stated in the complaint
make a case of a public nuisance Avhich the appellant [the
LEGISLATIVE COXTROL.
417
State] has a right to have abated bv injunction." " On api)eal
this case was affirmed by the Supreme Court of the United
States/
g386. Preventing waste of gas — flambeau lights.
The State bv statute may ]>revent the waste of natural gas ;
and as the burning of gas in flambeau lights, whetlier in the
countrv or in the citv, is -a vcrv wast-eful method of securing
light, it may prohibit its use in that manner, allowing its use
in " jumbo" burners enclosed in glass globes or in other ways
that are not wasteful. Such a statute does not deprive an indi-
vidual of his proj)crty without due process of law or without
just compensation, nor '' grant to any citizen, or class of citi-
zens, privileges or immunities which upon the same terms " do
" not equally belong to all citizens." '' The act," said the
c State V. Ohio Oil Company, 150
Ind. 21; 4fl N. E. Rep. 809; 47 L. R.
A. 627; Given v. State (Ind.), GO
X. E. Rep. 750.
" Ohio Oil Co. V. Indiana. 177 U.
S. 190; 20 Sup. Ct. Rep. 570.
Such a statute must be strictly
construed. Under the Ohio statute
it must appear in the petition to
recover the penalty given by the
statute that the complainant is a
resident of the county where the
suit is brought; but such defect
must be taken advantage of by spe-
cial demurrer particularizing such
defect. Some act must be shown
indicating the defendant's inten-
tion to abandon the well. As long
as the casing remains in the well,
and prevents water from penetrat-
ing the oil-bearing rock, the penalty
is not incurred; but it is not neces-
sary to aver that the casing has
been drawn. State v. Oak Harbor
Gas Co., 18 Ohio Cir. Ct. Rep. 751;
4 Ohio Cir. Ct. Dec. 158; affirmed
53 Ohio St. 347; 41 X. E. Rep. 584.
Under a .statute declaring it un-
lawful for any person to turn off
any valve belonging to any person
furnishing gas to consumers with-
out permission of the owner, the
offense is committed by turning off
the valve without reference to the
intent of the doer. State v. ^loore,
27 Ind. App. 83; 60 X. E. Rep. 955.
A statute providing that " it shall
Ix' unlawful for any person, firm or
corporation having possession, or
control, of any natural gas or oil
well, whether as contractor, owner,
lessee, agent, of manager, to allow
or permit the flow of gas or oil from
any such well to escape into the
open air, without being confined in
such well or proper pipe, or other
safe receptacle, for a longer period
than two days next after gas or oil
shall have been struck in such well,"
is valid, and is not invalid because
of the shortness of the period in
which it must be secured. Given v.
State (Ind.), 66 N. E. Rep. 750.
418 OIL AND GAS.
court, " in no way deprives tlie owner of the full and free use of
his property. It restrains him from wasting the gas to the in-
jury of others, to tlie injury of the public." The court likened
such a statute to one regulating fishing or hunting, which
was enacted to prevent unusual destruction of fish or game, and
therefore secure their extinction as food products.®
§387. Waste of gas in operating oil well.
A statute prohibiting the waste of gas is not invalid even
tliough such waste is only incident^al to the operation of a well,
in order to take out oil ; and unless such waste is not permitted
it cannot be operated. Xor is it invalid even though the value
of the gas is trivial compared with the value of the oil that can
be taken out of tlie well by its operation. In fact, though the
statute is practically prohibitory, so far as its operation as to an
oil well is concerned, still the statute for that reason is not
invalid.^
§388. Inspection of oil — tests.
There is no doubt that the State has the power to inspect
illuminating oil offered for sale, or that will be offered ; and to
charge the expense of such inspection to its owner.^" It may
prescribe a test for such oil, requiring it to stand a certain rea-
sonable number of degrees of heat without exploding or ignit-
ing. Such is only a reasonable regulation for the safety of the
inliabitants of the State." And there is no doubt that a statute
providing for an inspection of oil may exempt oils from inspec-
tion inspected in another State under a similar statute." But
sTownsendv. State, 147 Ind. 624; n Patterson v. Kentucky. 07 U.
47 N. E. Rep. 19; 37 L. R. A. 294; S. 501; Patterson v. Kentucky. 11
62 Am. St. Rep. 477. Bush. 311; 21 Amer. Rep. 220;
9 Ohio Oil Co. V. Indiana, 177 U. Foote v. Fire Department, 5 Hill 99
S. 190; 20 Sup. Ct. Rep. ^76; State (gunpowder) ; Williams v. Augusta,
V. Ohio Oil Co., 150 Ind. 21; 49 N. 4 Ga. 509 (gunpowder) ; Davenport
E. Rep. 809 ; 47 L. R. A. 627 ; Given v. Richmond, 81 Va. 636 (gxm-
V. State (Ind.), 66 N. E. Rep. 750. powder).
loBurkhardt V. Striger (Ky.).67 12 /« re Robinson, 28 Tex. App.
S. W. Rep. 270; Louisiana State 511; 13 S. W. Rep. 786.
Board v. Standard Oil Co., 107 La.
Ann. — ; 31 So. Rep. 1015.
4-10
LEGISLATIVE CONTROL. -i-^^
a city charter authorizing the passage of all ordinances neces-
sary for the trade, coiniuerce, health, and good government oi
a city does not authorize the passage of an ordinance requiring
vendors of illuminating oils to pay the inspector fees for in-
specting the oil.'^
§389. Ordinance regulating storage of oil.
Under a statute authorizing a municipality to regulate and
prevent the storage of combustible or explosive material, an
ordinance prohibiting the keeping or storing of explosive oils
within a distance of one thousand feet of any dwelling, house,
store room, building, barn, shed or other like structure, is rea-
sonable and valid, even as applied to a plant in operation before
any other buildings were erected in the neighborhood."
§390. Regulating sale of naphtha by United States.
Congress cannot legislate up.n the ^sale of naphtha ^vithin
the States, nor regulate its sale therein.''
§391. A charter is a contract.
If a State incorporate a gas company for a particular mu-
nicipality, or a municipality grant it the right to occupy its
13 ^Yaters-Pierce Oil Co. v. McEI- valid, coming within Ibe P'>lice pow-
roy (Tex. Cir. App.), 47 S. W. Rep. er. Dobbins v. Los Angeles (Cal.),
272. As to validity of appointment 72 Pac. Rep. !)<0.
of officers in Alabama, see State v. -United States v. Dermitt, 8
McGough, 118 Ala. 159; 24 So. Rep. ^Yall. 41-
* Where a statute made it a tine to
^^t statute providing that ilhimiu- sell naphtha under any assumed
atJng o s IrU be inrpected. applies name, and the defendant claimed
to gasoline, although it must be that the article sold had been corn-
first transformed into a vapor. Buvk- bined with chemical agents so as to
hardt V. Striger (Ky.), 67 S. W. counteract its ^-P^^^^ ^'f lin
^ ^,Q naphtha; it was held that an in-
?4' standard Oil Co. v. Danville, struction telling the jury they were
199 111. 50; 64 N. E. Rep. 1110, af- to decide whether the article sold
firming 101 111. App. 65." " was substantially naphtha or not
An ordinance making it unlawful afforded him no ground of com-
to erect and maintain gas works plaint. Commonwealth v. W ent-
within certain limits in the city is worth,. 118 Mass. 441.
420
OIL AND GAS.
Streets and supply its inhabitants with gas, a contract is at
once created, in the first case between the State and the company,
and in the second between the nninicipality and the company,
which is protected by that chuise in the Constitution of
the United States prohibiting a State from impairing the obli-
gation of a contract." Of course, it must be understood that in
granting a gas company a charter the State does not part with
its police power to protect its inhabitants in their health and
property ; ^^ and in granting it the right tlic municipality does
not part with its power to also protect its inhabitants in both
their health and property.^^
16 New Orleans Gas Co. v. Louis-
iana Light Co., 115 U. S. 650; 10
Am. and Eng. Corp. Cas. 689; 6
Sup. Ct. Rep. 252; Louisville Gas
Co. V. Citizens' G;?l Co., 115 U. S.
683; 6 Sup. Ct. Rep. 265; 10 Am.
and Eng. Corp. Cas. 671 (reversing
81 Ky. 263; 1 Am. and Eng. Corp.
Cas. 156) ; State v. Laclede Gaslight
Co., 102 Mo. 472; 22 Am. St. Rep.
789; 34 Am. and Eng. Corp. Cas.
49; 14 S. W. Rep. 974; 15 S. W.
Eep. 383 ; Richmond County Gas-
light Co. V. Middletown, 59 N. Y.
228; Detroit v. Detroit, etc., Co.,
184 U. S. 368; 22 Sup. Ct. Rep. 410;
Southwestern, etc., Co. v. Joplin,
1,13 Fed. Rep. 817.
3 'New Orleans Gas Co. v. Louis-
iana Light Co., supra; Jamieson v.
Indiana Natural Gas Co., 128 Ind.
555; 28 N. E. Rep. 76; 12 L. R. A.
652; 34 Am. and Eng. Corp. Cas.
1: 3 Inter. Com. Rep. 613; Bath
Gaslight Co. v. Claffy, 74 Hun 638 ;
26 N. Y. Supp. 287; Morristown v.
East Tennessee, etc., Co., ^115 Fed.
Rep. 304; Mason v. Ohio, etc., Co.,
52 W. Va. — ; 41 S. E. Rep. 418.
18 Northern Liberties v. Northern
Liberties Gas Co., 12 Pa. St. 318;
Walla Walla v. Walla. Walla Water
Co., 172 U. S. 1; 19 S. Ct. Rep. 77;
Fertilizing Co. v. Hyde Park, 97 U.
S. 059; Butchers' Union, etc., Co. v.
Crescent City, etc., Co., Ill U. S.
746; 4 Sup. Ct. Rep. 652; Coates
v. ;Mayor, 7 Cow. 585; Mason v.
Ohio River R. R. Co., 52 W. Va.
— : 41 S. E. Rep. 418.
In the Walla Walla case the court
said: ""Hie grant of a right to
supply gas or water to a municipal-
ity and its inhabitants through
pipes or mains laid in the street,
upon condition of the performance
of its service by the grantee, is
the grant of a franchise vested in
the State, in consideration of the
performance of a public service, and
after the performance by the
grantee, is a contract protected by
the Constitution of the United
States against State legislation to
impair it."
See Mason v. Ohio River R. R.
Co.. 52 W. Va. — ; 41 S. E. Rep.
418; Traverse City Gas Co. v. Tra-
verse City (Mich.), 89 N. W. Rep.
574 ; People v. Chicago Gas Trust
Co.. 130 111. 268; 22 N. E. Rep.
798; 8 L. R,. A. 497.
After the right to occupy the
streets has been granted and ac-
cepted, the municipality cannot re-
quire the lighting company to pay
compensation for the use of the
ground occupied by its poles. Hot,
LEGISLATIVE COXTROL, 421
§392. City cannot fix rates without statutory authority.
A eitj cannot fix the price of gas supplied by a company
under a statute merely authorizing it to provide by ordinance
reasonable regulations for its supply, distribution and consump-
tion ; nor is such a power conferred under a general welfare
clause, such as is usually found in municipal charters or stat-
utes concerning the powers of municipalities.^^ So under a
statute providing merely that a municipality may establish
" such regiilations " of the business of a gas company as it sees
fit, it is not authorized to fix rates to be charged after tlie com-
pany has occupied its streets wuth its pipes under an ordinance
granting it leave to do so.^'' There is no doubt of the power of
the State to delegate to a municipality the authority to fix the
rates. ^^
§393. Municipality regulating rates after ordinances granted.
After a municipality has given a gas company the right to oc-
cupy its streets, and the company has accepted the grant, there
Springs, etc., Co. v. Hot Springs,
70 Ark. 300; 67 S. W. Rep. 761.
The incorporation of a gas com-
].any, either by special act or under
the general laws of the State, with
power to manufacture and sell gas
gives it the implied power to charge
and collect reasonable rates for the
gas manufactured, and such power
forms part of its contract with the
State. Capital City Gaslight Co.
V. Des Moines. 72 Fed. Rep. 829.
But no charter to make and sell
gas is necessary^ the making and
selling not being a prerogative of
the government. Jersey City Gas
Co. V. Dwight, 29 X. J. Eq. 242.
19 Lewisville Natural Gas Co. v.
State. 135 Ind. 49; 34 N. E. Rep.
702; 21 L. R. A. 7.34; 43 Am. and
Eng. Corp. Cas. 483 (overruling
Rushville v. Rushville Natural Gas
Co., 132 Ind. 575; 28 N. E. Rep.
853; 38 Am. and Eng. Corp. Cas.
276; 15 L. R. A. 321) ; Indianapolis
V. Consumers' Gas Co., 140 Ind.
107; 39 N. E. Rep. 433; 27 L. R. A.
514; 48 Am. and Eng. Corp. Cas.
151; 49 Am. St. Rep. 183; Nobles-
ville V. Noblesville, etc., Co.. 157
Ind. 162; 60 N. E. Rep. 1032.
-c- //I re Pryor, 55 Kan. 724; 41
Pac. Rep. 958; 29 L. R. A. 398; 49
Am. St. Rep. 280; 12 Am. R. and
Corp. Rep. 364. See Freeport Water
Co. v. Freeport. ISO U. S. 587;
affirming 186 111. 179; .57 N. E.
Rep. 862.
21 Cleveland Gaslight and Coke
Co. v. Cleveland, 71 Fed. Rep. 610;
Capitol City Light and Coke Co. v.
Des Moines. 72 Fed. Rep. 820; Walla
Walla V. Walla Walla Water Co.,
172 U. S. 1 : 19 S. Ct. Rep. 77; Peo-
ple V. Stephens, 62 Cal. 209.
422 OIL AND GAS.
exists a contract between them which tlie citv cannot change,
unless it has received the power to do so."" The incorporation
of the company, either by a special act or under the general
law, with power to make and sell gas, the power to charge and
collect reasonable rates for the gas manufacture is implied, and
forms a part of the company's contract with the State,^^ And
Avhere a statute was in force authorizing the legislature to
amend, change or alter the charter of every corporation ; and
thereafter the legislature granted a company a charter, au-
thorizing it to lay its pipes and sell gas in certain portions of a
certain city, and exempted it from the provisions of the statute
authorizing amendments bv it to the charters of companies; and
several years after the charter was so amended as to extend the
rights, privileges and franchises of the company throughout the
entire corporate limits of such city, it was decided that the
right to make and sell gas carried with it the right to fix tlie
price, and that such right was not subject to regulation either
by the city or State. The regulation of the price of gas was
considered not an exercise of the police power."*
§394. Eates fixed in ordinance granting franchise.
The statement made at the opening of the immediately pre-
ceding section is, however, subject to an exception. Thus, if a
municipality in granting to a gas company the right to lay its
22 Indianapolis v. Consumers' etc., , lijjht Co. v. Middletown. 59 N. Y.
Co., 140 Ind. 107; 39 N. E. Rep. 228.
433; 48 Am. and Eng. Corp. Cas. 23 Capital City Gaslight Co. v.
151; 27 L. R. A. 514; Louisville Des Moines, 72 Fed. Rep. 829;
Gas Co. V. Citizens' Gas Co.. 115 Cleveland Gaslight and Coke Co. v.
U. S. 683 (reversing 81 Ky. 263) ; Cleveland, 71 Fed. Rep. 610; 35
6 Sup. Ct. Rep. 265; 10 Am. and Ohio L. Bull. 155; Santa Ana Water
Eng. Corp Cas. 271; People v. Chi- Co. v. San Buenaventura, 56 Fed.
cago Gas Trust Co., 130 111. 268; Rep. 339.
22 N. E. Rep. 798 ; 8 L. R. A. 497 ; 24 state v. Laclede Gaslight Co.,
29 Am. and Eng. Corp. Cas. 257; 102 Mo. 472; 14 S. W. Rep. 974; 15
New Orleans Gas Co. v. Louisiana S. W. Rep. 383; 22 Amer. St. Rep.
Gas Co., 115 U. S. 650; 6 Sup. Ct. 789; 34 Am. and Eng. Corp. Cas.
Rep. 252; 10 Am. and Eng. Corp. 49; People v. Kent (111.), 12 Nat.
Cas. 689; Richmond County Gas- Corp. Rep. 193.
LEGISLATIVE COXTROL. 423
mains in its streets and to supply consumers gas for private
use, fix the amount it may charge them, and the company ao
cept the grant or franchise thus given it, either expressly or by
implication in occupying the streets pursuant to the ordinance,
it cannot exceed the rate thus fixed; and if it attempt to charge
more than is allowed in such ordinance, any consumer within
the municipality whom it is attempted to overcharge may suc-
cessfully maintain an action to enjoin such company overcharg-
ing him and from removing his meter in order to enforce its
unlawful charge."^ " Having accepted the franchise granted
by the ordinance," said the Supreme Court of Indiana, " and
agreed to be bound by the express terms as to the price of gas,
and having engaged in the exercise of the privilege under the
grant, and so continuing to do it ; it is now precluded from
successfully refusing to discharge its obligations to the inhab-
itants of the town, who desire to use its fuel upon the gi'ound
that they refuse to pay a price therefor in excess of the maxi-
mum rate fixed by the ordinance. The town could not by its
subsequent action impair or restrict the rights granted to, ac-
cepted, and exercised by the appellant. Xeither will the latter
be permitted, under the circumstances, to decline to comply
with the terms or conditions assumed by which it is expressly
granted." "® In a subsequent case the same court said : " That
the city had no power to regulate the rates of its licensee makes
no difference. It had tlie power to contract. And the power
to regulate the governmental function, and the power to contract
for the same end, are quite different things. One requires the
consent only of the one body, the other the consent of two. In
this instance the city acted in the exercise of its power to con-
25 Westfield Gas, etc., Co. v. Men- is* made the gas company had given
denhall, 142 Ind. 538 ; 41 X. E. a bond to the to^^^l agreeing to com-
Rep. 10.33. This case arose under ply with the ordinance granting it
the same statute as did Louisville, the right to occupy its streets; and
etc., Co. V. State, supra. it was a part of such ordinance that
2C Citing Indianapolis v. Consum- the company, in consideration that
ers'. etc.. Co.. 140 Ind. 107 ; 39 N. the town had waived its right to
E. Rep. 433; 27 L. R. A. 514; 48 exact a fee for the use of its streets,
Amer. and Eng. Corp. Cas. 151. In would adhere to the charges fixed
the case from which the quotation in it for private consumers.
424: OIL AND GAS.
tract, and it is therefore entitled to the benefits of its bar-
gain." "^ In an ordinance granting a gas company the right
to occupy its streets, a municipality may require that it
furnish gas free to its public buildings, or even to its places of
worship; and the company will be bound by its provisions. In
such an instance the relation between the municipality and the
gas company is one of contract."*
§395. Rates fixed by city in its consent to assignment of franchise
right.
If the right to assign a franchise granted a gas company re-
quires the consent of such uuinicipality granting it, tlien in
such consent tlie municipality may fix the rates tlie assignee
may charge private consumers, without any further or other
consideration ti|an that involved in consenting to the assign-
ment."®
§396. Gas company accepting provisions of subsequent ordinance.
A gas company may bind itself by accepting the terms of an
ordinance fixing rates passed subsequently to the gi'ant of its
franchise ; and tlie right to charge the rates fixed is a sufficient
27 Noblesville v. Noblesville, etc., ciipy such streets, bindinfr it to have
Co., 157 Ind. 162; 60 N. E. Rep. in operation a well connected witli
1032; Sewickley School District v. pipes within a year, it was held
Ohio Valley Gas Co.. 154 Pa. St. that the latter company did not ac-
539; 25 Atl. Rep. 868; Newark quire any rights in the streets until
Gas and Fuel Co. v. Newark, 7 it had fulfilled the condition, and
Ohio N. P. 76; Toledo v. N. W. that the first company must con-
Ohio Natural Gas Co., 5 Ohio C. C. tinue to furnish free gas until that
557; 3 Ohio Cir. D. 273. . time. Newark Gas and Fuel Co. v.
28 Sewickley School District v. Newark, 7 Ohio N. P. 76 ; Toledo
Ohio Valley Gas Co., 154 Pa. St. v. N. W. Ohio Natural Gas Co.. 8
539; 25 Atl. Rep. 868.^ Ohio S. and C. P. Dec. 277; 6 Ohio
Where a company was granted N. P. 531.
the exclusive right to the streets of 29 /« re Pryor, 55 Kan. 724; 41
a city, under a condition that it Pac. Rep. 958; 29 L. R. A. 398; 49
was to furnish free gas to the city Am. St. 280. See Nobles^Mlle v. No-
so long as it occupied the streets; blesville, etc.. Gas Co.. 157 Ind.
and the city afterwards granted 162; 60 N. E. Rep. 1032.
another company the right to oc-
LEGISLATIVE CONTROL. 4:25
consideration to make its acceptance binding. Thns where a
company Avas occupying the streets of a toA\Ti under an ordi-
nance that allowed it to charge reasonable rates (by constmc-
tion), no rate being specified; and no ordinance was enacted
specifying what rates the company could charge, but a subse-
quent ordinance was passed, enumerating and fixing rates for
almost all the instances in which the company had been making
a cliarge ; and the company accepted the terms of such subse-
quent ordinance, it was held that it was bound by such accept-
ance and could charge only the rates specified, except in those
instances where no rate was fixed, where it could charge a rea-
sonable rate.'"
^397. Prohibition to change for specified time.
In some States are statutes authorizing the enactment of an
ordinance granting the right of a gas company to supply gas
within a certain named period, or not to exceed a certain period
of time, and providing on the acceptance of such an ordinance
that the acceptiince and ordinance shall constitute a contract
between the municipality and the gas company. Where such a
statute prevails, and such an ordinance is accepted, the rates
fixed in it cannot be changed during the period of time fixed
in the ordinance.^^ Under such a statute the time when the
jieriod of time shall begin to run may be dated ahead, although
the period of time from the enactment of the ordinance until
the contract shall expire will exceed the length of time for
which the municipality is authorized to bind itself by the con-
tract. ^'-
30 Xoblesville v. Xoblesville. etc., si Logan Natural Gas. etc.. Co. v.
Co., 157 Ind. 162; 60 N. E. Rep. Chillicothe. 65 Ohio St. 186; 62 N.
1032. E. Rep. 122; Cincinnati Gaslight,
Acquiescence in a reduction of etc., Co. v. Avondale. 43 Ohio St.
rates for several years for each 257 ; 1 X. E. Rep. 527 ; reversing
year, will not prevent contest for a 8 Ohio X. P. 88; 11 ^^^cly. L. Bull.
reduction in future years, or in 216; 13 Wkly. L. Bull. 467; 14
years, in which there has been no ^Vkly. L. Bull. 15; State v. Ironton
acquiescence. Los Angeles v. Los Gas Co., 37 Ohio St. 45.
Angeles City Water Co., 177 U. S. 32 Logan Natural Gas, etc., Co. v.
558; 20 Sup. Ct. Rep. 736; 124 Cal. Chillicothe. supra.
377. A contract for a longer time than
426 OIL AND GAS.
§398. Police power. — Rates.
But it must be understood that in parting witli its power to
fix and determine rates neither the State nor the municipality
parts witli its police power — the power to protect the lives and
the safety of its inhabitants or the safety of its property. It
may be said that is a power that neither a State and perhaps a
municipality cannot alienate.^^ But the right to exorcise tlie
]X)lice power is one that must be exercised with due regard to
the individual or company affected ; under the guise of the
right to exercise it, it cannot be so used as to destroy vested
rights; and under it the right to regulate a business, it cannot
be so used as to confiscate a gas company's business or property
without compensation and without due course of law.^*
§399. Mnnicipality regulating gas companies.
As a municipality is only an agent of the State in its govern-
ment, the State may delegate to it its rights under the police
power to control or regulate a gas company; and no express pro-
vision of the constitution is necessary to enable it to do so.^**
the statute allows, or for an in- Co., 11.5 U. S. G.50; 10 Am. and
definite time, will render the time Eng. Corp. Cas. 6.39; 6 Sup. Ct.
limit of the contract void; and it Rep. 252; Louisville Gas Co. v. Citi-
cannot be urged successfully that zens' Gas Co., 115 U. S. G83 (re-
it is a contract for the full time versing 81 Ky. 156; 1 Am. and Eng.
allowed by the statute. Manhattan Corp. Cas. 156) ; 6 Sup. Ct. Rep.
Trust Co. v. Dayton, 59 Fed. Rep. 265; 10 Am. and Eng. Corp. Cas.
.327; 8 C. C. A. 140; 16 U. S. App. 671; Bath Gaslight Co. v. Claffy,
588. There is a seeming conflict be- 74 Hun 638; 26 N. Y. Supp. 287;
tween this case and the case of To- Mason v. Ohio River R. R. Co., 52
ledo v. N. W. Ohio Natural Gas W. Va. 41; 41 S. E. Rep. 418.
Co., 5 Ohio C. C. 557. 34 New Memphis Gas, etc., Co. v.
33 State V. Columbus Gaslight, Memphis, 72 Fed. Rep. 952 ; Bene-
etc, Co., 34 Ohio St. 572 • 32 Amer. diet v. Columbus Construction Co.,
Rep. 390; Zanesville v. Zanesville 49 X. J. Eq. 23; 23 Atl. Rep. 485.
Gaslight Co., 47 Ohio St. 1; 23 N. 35 Garrison v. Chicago. 7 Biss.
E. Rep. 555; 29 Am. and Eng. Corp. 480; Indianapol's v. Indianapolis
Cas. 190; Jamieson v. Indiana Nat. Gaslight, etc., Co.. 66 Ind. 396; New
Gas, etc., Co., 128 Ind. 555; 28 N. ^ Orleans Gaslight Co. v. Hart. 40 La.
E. Rep. 76; 12 L. R. A. 652; .34' Ann. 474: 8 Amer. St. Rep. 544; 4
Amer. and Eng. Corp. Cas. 1; New So. Rep. 215: Capital City Gaslight
Orleans Gas Co. v. Louisiana Light Co. v. Des Moines, 72 Fed. Rep.
LEGISLATIVE CONTROL.
427
Under tlie right delegated to. regulate gas companies, however,
a municipality may not violate any right granted a company in
its charter,^*' Nor can the municipality imder its power to
regulate a gas company break or impair a contract it has with
the company for municipal lighting, or lighting its streets and
public highways.'" A mimicipality has the inlierent and im-
plied police power to require all gas companies operating within
its limits, to use all reasonable regulations to protect its inhab-
itants, independent of any statute expressly authorizing it so
to do."'^ This proposition is emphasized when it is borne in
mind that a municipality cannot by contract impair its police
power over gas and other like comp>anies, to protect its inhab-
itants in their health and property from their operations.^"
§400. Power to change rates — rates established must be
reasonable.
Where a statute is in force authorizing a municipality to
change or regulate rates for gas charged ])rivate consumers, the
municipality cannot fix the rate so low that the company cannot
manufacture and supply gas. The rate must Ix? reasonable;
829; Northern Liberties v. North-
ern Liberties Gas Co., 12 Pa. St.
318; Westfield Gas, etc., Co. v.
Mendenhall. 142 Ind. 538; 41 N. E.
Rep. 1033; Zanesville v. Louisville
Gaslight Co., 47 Ohio St. 1; 23 N.
E. Rep. 55; 29 Am. and Eng. Corp.
Cas. 190.
36 District of Columbia v. Wash-
ington Gaslight Co., 20 D. C. 39;
Pittsburgh's Appeal. 115 Pa. St.
4; 7 Atl. Rep. 778; Northern Liber-
ties V. Northern Liberties Gas Co.,
supra.
■"•'Capital City Gaslight Co. v.
Des Moines, 72 Fed. Rep. 829; Levis
V. Ne\Yton, 75 Fed. Rep. 884; In-
dianapolis V. Consumers' Gas Trust
Co., 140 Ind. 107; 39 N. E. Rep.
433; 48 Am. and Eng. Corp. Cas.
151; 49 Am. St. Rep. 183; 27 L. R.
A. 514; State v. Laclede Gaslight
Co., 102 Mo. 472; 14 S. W. Rep.
974; 15 S. W. Rep. 383; 22 Amer.
St. Rep. 789; 34 Am. and Eng.
Corp. Cas. 49 ; Indianapolis v. In-
dianapolis Gaslight, etc., Co., 66
Ind. 396.
•'8 Northern Liberties v. Northern
Liberties Gas Co., 12 Pa. St. 318;
Rushville v. Rushville, etc., Gas Co.,
1.32 Ind. 575; 28 N. E. Rep. 853;
15 L. R. A. .321 (overruled on the
right to regulate the price of gas.)
•■^nEast St. Louis v. East. St
Louis Gas, etc., Co., 98 111. 415; 38
Am. Rep. 97; Meadville Fuel Gas
Co.'s Appeal (Pa.), 4 Atl. Rep.
733; 14 Am. and Eng. Corp. Cas.
123; Indianapolis v. Consumers'
Trust Co.. 140 Ind. 107; 39 N. E.
Rep. 483; 49 Am. St. Rep. 183; 48
Am. and Eng. Corp. Cas. 151; 27
L. R. A. 514.
428
OIL A.ND GAS.
and if not reasonable, the ordinance changing tlie rate imposes
no obligations upon the company.*" The granting of a charter
to a company to manufacture an;l snpjily gas creates an implied
contract witli the State giving tlie company the right to charge
a reasonable rate for all gas furnished, which cannot be im-
paired.*^ Under such a power a municipality cannot fix a rate
so low as to work a practical confiscation of the company's plant ;
but due regard must be had to the right of the company to re-
ceive such an income from its business as will pay operating
expenses, legitimate charges, and a reasonable profit.*" The
reasonableness of the rate fixed is a matter for judicial in-
quiry; *^ and a court of equity has the ])ower to set aside such
ordinance and direct the municipality to fix such rates as the
statute authorizes.** Before the courts can interfere it must
appear that the ^fites fixed are so plainly and palpably unrea-
40 State V. Cincinnati, etc., Co.,
18 Ohio St. 262; Logan Natural
Gas, etc., Co. v. Chill icothe, 65 Ohio
St. 186; 62 N. E. Rep. 122.
41 Cleveland, etc., Co. v. Cleve-
land, 71 Fed. Rep. 610; 35 Ohio L.
Jr. 155; Toledo v. N. W. Natural
Gas Co., 8 Ohio S. and C. P. Dec.
277; Capital City Gaslight Co. v.
Des Moines, 72 Fed. Rep. 829 ; New
Memphis Gas Co. v. Memphis, 72
Fed. Rep. 952; Los Angeles v. Los
Angeles, etc., Co., 177 U. S. 558; 20
Sup. Ct. Rep. 736; affirming 88
Fed. Rep. 720; Cincinnati, etc., Ry.
Co. V. Bowling Green, 57 Ohio St.
336; 49 N. E. Rep. 121; People's
Gaslight and Coke Co. v. Chicago,
114 Fed. Rep. 384.
42 New Memphis Gas, etc., Co. v.
Memphis, 72 Fed. Rep. 952; Wad-
dington v. Allegheney Heating Co.,
6 Pa. Co. Ct. Rep. 96; Spring Val-
ley, etc., Co. V. San Francisco, 82
Cal. 286; 22 Pac. Rep. 910. 1046;
San Diego, etc., Co. v. Jasper, 110
Fed. Rep. 702; Indianapolis Gas
Co. V. Indianapolis, 82 Fed. Rep.
245; San Joaquin, etc.. Co. v. Stan-
islaus County, 113 Fed. Rep. 930.
If a municipality lease its own
gas works to a company, providing
in the lease that its council may
fix the rates, but not below the then
existing rates, the proviso is a lim-
itation upon its right to regulate
rates, and not a mere granting back
by the lessee of the right of the
municipality ir. its proprietory ca-
pacity only. Los Angeles v. Los
Angeles, etc., Co., 177 U. S. 558; 20
Sup. Ct. Rep. 736, affirming 88 Fed.
Rep. 720.
43 Capitol City Gas Co. v. Des
Moines. 72 Fed. Rep. 829; New
Memphis Gas, etc., Co. v. Memphis,
72 Fed. Rep. 952; Agua Pura Co.
V. Las Vegas. 10 N. M. 6; 60 Pac.
Rep. 208 ; 50 L. R. A. 224.
44 Spring Valley, etc., Co. v. San
Francisco. 82 Cal. 286; 22 Pac. Rep.
910, 1086; Osborne v. San Diego,
etc., Co., 178 U. S. 22; 20 Sup. Ct.
Rep. 860; affirming 76 Fed. Rep.
319; People's Gaslight and Coke Co.
v. Hale, 94 111. App. 406.
LEGISLATIVE COXTEOL. 429
sonable as to make their enforcement equivalent to the taking
of private property for public use without proper compensa-
tion.*^ In discussing this question at great length the Supreme
Court of the United States by Justice Harlan has said : " The
contention of the appellant [a water company] in the present
ease is that in ascertaining what are just rates the court should
take into consideration the cost of its plant ; the cost per annum
of operating the plant, including interest paid on money bor-
rowed and reasonably necessary to be used in constructing the
same ; the annual depreciation of the plant from natural causes
resulting from its use; and a fair profit to the company over
and above such charges for its services in supplying the water
to consumers, either by way of interest on the money it has
expended for tlie public use, or upon some other fair and equita-
ble basis. Undoubtedly, all these matters ought to be taken
into consideration, and such weight be given them, when rates
are being fixed, as under all the circumstances will be just to
the company and to the public. The basis of calculation sug-
gested by the appellant is, however, defective in not requiring
the real value of tlie property and the fair value in tliemselves
of the services rendered to be taken into the consideration.
What the company is entitled to demand, in order that it may
have just compensation, is a fair return upon the reasonable
value of the property at the time it is being used for the public.
The property may have cost more than it ought to have cost,
and its outstanding bonds for money borrowed and which went
into the plant may be in excess of the real value of the property.
So that it cannot be said that the amount of such bonds should
*5 San Diego, etc., Co. v. Jasper, to not constitute a just compensa-
111 Fed. Rep. 702. See People's lion.
Gaslight and Coke Co. v. Hale, 94 A reduction of the company's in-
Ill. App. 406, and San Diego, etc., come need not be shown to establish
Co. V. San Diego, 118 Cal. 556; 50 the fact that the reduction of its
Pac. Rep. 633; 38 L. R. A. 460; 62 rates by ordinance impairs the obli-
Am. St. Rep. 261. In this case gation of a contract prohibiting
three and one-third per cent upon such reduction. Los Angeles, etc.,
the actual cost of the plant after Co. v. Los Angeles, 88 Fed. Rep.
deducting current expenses was held 720; affirmed 177 U. S. 558: 20 S.
Ct. Rep. 736.
430 OIL AND GAS.
ill every ease control the question of rates, although it may be
an element in the inquiry as to what is, all the circumstiinces
considered, just both to the company and t(j the public." ""^ ]n
another case, involving turnpike rates, it -was said : '' Each
case must depend upon its six?cial facts ; and when a court,
without assuming itself to pi"escribe rates, is required to deter-
inino whether the facts prescribed by the legislature for a cor-
poration controlling a public highway are, as an entirety, so
unjust as to destroy the value of its property for all the pur-
lX)ses for which it was acquired, its duty is to take into consid-
eration the interests both of the jmblic and the owner of the
property, together with all other circumstances that are fairly
to be considered in determining whether the legislature has,
under the guise of regulating rates, exceeded its constitutional
authority, and practically deprived the o^^^ler of property with-
out due ])rocess of law. . . . The utmost tliat any corjwra-
tion operating a public highway can rightfully demand at tlie
hands of the legislature, when exerting its general powers, is
that it receive what under all the circumstances is such com-
pensation for the use of its property as will be just both to it
and to the public." *' If the municipality, having the author-
ity to fix rates, do not do so, then the gas company may fix its
rates at such a reasonable figure as it sees fit, unless some ex-"
press provision of a statute or an ordinance prohibit its so
doing.^^ Where a municiaplity with authority to fix rates does
46 San Diego Land Co. V. National v. San Diego, 118 Cal. 556; 50
City, 174 U. S. 739; affirming 74 Pac. Rep. 633; 38 L. R. A. 460; 62
Fed. Rep. 79. It was also held that Am. St. Rep. 261.
the cost of outside ventures could 47 Covington, etc., Co. v. Sand-
not be considered in determining ford, 164 U. S. 578. See Chicago,
the rates. New Memphis Gaslight etc.. Ry. v. Minnesota. 134 U. S.
and Coke Co. v. Memphis, 72 Fed. 418.
Rep. 952. In St. Louis v. Arnot, 4s Lanning v. Osborne, 76 Fed.
94 Mo. 275, 7 S. W. Rep^ 15, evi- Rep. 319; affirmed Osborne v. San
aence of the cost of the water works Diego, etc., Co., 178 U. S. 22; 20
was held to be irrelevant in fixing Sup. Ct. Rep. 860. In this case it
the rates. Nor can expenses of liti- was held that the annual rates as
gation in contesting the validity of first fixed were not made irrevocalile
an ordinance in fixing the rates be by a contract for the sale of wator
considered. San Diego Water Co. rights for a fixed sum, providing, in
481
LEGISLATIVE CO^^TKOL.
«o it will be presumed that tlie rates are reasonable; and the
cas company has the Burden to show that it is not." li there
be no restriction upon the company in fixing the price, it is
authorized to fix it at a reasonable figure; ^° and the presump-
tion is that the price at which it fixes it is a reasonable one/
In a case involving rates, analogous to the rates of a gas com-
panv, the Supreme Court of the United States has used the fol-
lowing language: '' The judiciary ought not tx) interfere with
the collection of rates established under legislative sanction un-
less they are so plainly and palpably unreasonable as to make
their enforcement equivalent to the taking of property for
public use without such compensation as under all the circum-
stances is just to the owner and to the public; that is, judicial
interference should never occur unless the case presents clearly
and beyond all doubt, such a flagrant attack upon the rights of
propertv under the guise of regulations as to compel the court
to sav that the rates prescribed will necessarily have the effect
to deny just compensation for private property taken for the
public use." " Under its power to change the rates a mimici-
addition, for the payment of such .0 Louisville Gas Co. v. Dulaney,
annual rates to "be fixed by the 100 Ky. 405; 38 S. W . Rep^-03.
:r company as allowed by law." ^^ Bellaire Goblet Co. v^ F^ndlay,
Power given to a municipal body 3 Ohio Cir. Dec. 20o ; o Ohio C C.
to fix rates does not make it a 418; Xoblesville v. ^oblesvjle Ga.
part of the legislative department etc., Co., lo- Ind. 162; 60 X. i.-
of the State. Spring Valley, etc., Rep. 1032^ x-.tional
Co V San Francisco, 82 Cal. 286; ^^ San Diego Land Co. ^. Nation_al
•.•>"pac Rep. 910, 1046. See Lan- City, 174 U. S. 739; aOirming -4
;ing v.' Osborne. 82 Fed. Rep. 575. Fed. Rep 79; citing Chicago, e 0.,
40 Capitol City Gaslight Co. v. Ry. v. ^^ ell man, 43 L. S. 339
Des Moines, 72 Fed. Rep. 829. See Reagan v. Farmers Loan, etc., Co
Sate V Ironton, 37 Ohio St. 45; 154 U. S. 362; Smyth v. Ames, 169
To do V. N. W.'ohio Natural Gas U. S. p. 524; and Henderson Bndge
Co., 3 Ohio Cir. Ct. Dec. 273; 5 Co. v. Henderson City. 1-3 L. S.
nViin Cir Ct 557 ; Logansport, etc., o92.
Ohio Lir. Lt. 30i , i following analogous
Gas Co. V. Peru, 89 Fed. Rep. 18a. ^^^ ^^ ^.
Tl.at the motives of the common ^^.^ ^^ ^ S ,,,.^ Sp^ng
council in fixing the price may be ^^^^^^ ^^ ^^, ^ ^^^ Francisco. 82
inquired into, see State v. Cmcin- .^ ^^^g.
nati Gaslight, etc., Co., 18 Ohio St. l^'-^\;^^^^^ ,^ ,,, V Bryant. 52
262. ^ °
432
OIL AND GAS.
pality need not give notice of its intention to do so,^' unless a
statute requires it ; and this is especially true where the com-
pany must furnish data to enable the nuinicipality to determine
Cal. 132; Spring Valley W. W. v.
Baitlett, 63 Cal. 245; San Diego W.
W. Co. V. San Diego, 118 Cal. 55(5;
50 Pac. Rep. 633; 38 L. R. A. 460;
Redlands Domestic Water Co. v.
Redlands, 120 Cal. 312; 53 Pac.
Rep. 843.
A company is not estopped to
contest the validity of an ordinance
fixing rates in violation of a con-
tract between the city and the
grantors of the company, merely
because for fifteen years it has col-
lected the rates estal^ished by sim-
ilarly objectionable ordinances,
where it has annually protested
against the city's conduct. Los An-
geles V. Los Angeles, etc., Co., 177
U. S. 558; 20 Sup. Ct. Rep. 736;
affirming 88 Fed. Rep. 720.
A failure of a gas company to
furnish gas at a rate specified in an
ordinance, upon which condition its
charter was granted, is not excused
by the passage of a subsequent or-
dinance for the repeal of the former
one. Such a repealing ordinance is
nothing more than a wrongful as-
sertion by the town of a right to
rescind its contract. Chicago, etc.,
Co. V. Lake, 130 111. 42; 22 N. E.
Rep. 616; affirming 27 111. App. 346.
An ordinance authorizing a com-
pany to charge consumers during
the continuance of the privilege
granted, certain named rates or
" other rates that may be estab-
lished " by the company and ap-
proved by the municipal authori-
ties, does not exclude future regula-
tion of the rates charged, in viola-
tion of a statiite authorizing the
municipality to fix the charges.
Creston W. W. Cb. v. Creston, 101
la. 687; 70 X. W. Rep. 739.
In determining wliether or not
the rates are reasonable, bonds is-
sued for patents which have expired,
or for patents not used, cannot be
considered. Nor can the rental of
land owned by the company but not
used as a plant be considered as a
proper expense. Capital City Gas-
light Co. v. Des ^loines, 72 Fed Rep.
829.
The cliange of rates so as to im-
pair the original contract raises a
question giving the Federal courts
jurisdiction. Logansport, etc., Gas
Co. v. Peru. 89 Fed. Rep. 185.
In determining the rate the mu-
nicipality may take into considera-
tion the earnings in the past. Lo-
gansport, etc.. Gas Co. v. Peru, 89
Fed. Rep. 185.
The court cannot fix the rate; it
can only determine whetlier or not
the rat«s as fixed by the municipal-
ity are reasonable. People's Gas-
light and Coke Co. v. Hale, 94 111.
App. 406.
The constitution and statute of
California authorizing Boards of Su-
pervisors to fix rates at which water
shall be sold by a corporation fur-
nishing water to the public does not
apply to a corporation organized to
furnish water to its stockholders
only. McFadden v. Los Angeles
County, 74 Cal. 571; 16. Pac. Rep.
397.
53 Spring Valley, etc., Co. v. San
Francisco, 82 Cal. 286 ; 22 Pac. Rep,
910, 1046; Budd v. New York, 143
U. S. 517; 12 S. Ct. Rep. 468.
LEGISLATIVE CONTROL.
433
what the rates shall be, and it has been called upon by such city,
before tixiiio' the rates, to fiiniish such data.^^
54 San Diego Land Co. v. National
City, 174 U. S. 739; affirming 74
Fed. Rep. 79.
A water company cannot exact
any sum of money or other thing in
addition to the legally established
rates as a condition upon which it
will furnish water. Lanning v. Os-
borne. 76 Fed. Rep. 319.
The current expenses which may
be considered in determining the
sufficiency of the income provided
by water rates consist of the amount
of money which is properly and rea-
sonably expended each year in the
collection and distribution of water.
San Diego Water Co. v. San Diego,
118 Cal. 556; 50 Pac. Rep. 633; 38
L. R. A. 460.
Where the water is to be fur-
nished under a contract fixing the
rate, the reasonableness of such
rates is not a matter of considera-
tion. Leadville Water Co. v. Lead-
ville, 22 Colo. 297; 45 Rac. Rep.
362.
The court is not limited to the
evidence heard by the municipal
board in fixing the rates where the
hearing was conducted without
notice to the company and without
any right on its part to intervene
efi"ectnally. San Diego Water Co.
V. San Diego, supra.
In Pennsylvania if the rates yield
no more than is required to main-
tain the plant, pay fixed charges
and operating expenses, provide a
suitable sinking fund, for the pay-
ment of debts, and pay a fair profit
to the owners, they are not so un-
reasonable that the courts will re-
duce them. Under the statute in
that State the power of the courts
to decrease rates is limited to a
reduction of the rates which are
specifically charged to be excessive,
and does not include the right to
form an entirely new schedule of
prices covering the company's entire
business. Brymer v. Butler Water
Co., 179 Pa. St. 331; 27 Pitts. L. J.
(N. S.) 285; 39 W. N. C. 439; 36
Atl. Rep. 249 ; 36 L. R. A. 260.
Under a power reserved to pre-
scribe from time to time rules and
regulations for the running and op-
eration of a street railway, a city
cannot prescribe the rate of fare.
Detroit v. Detroit, etc., Co., 184 U.
S. 368; 22 Sup. Ct. Rep. 410.
As to consolidation of gas com-
panies, by some of which is reserved
the right to fix the rates, and some
not, see People's Gaslight and Coke
Co. v. Chicago, 114 Fed. Rep. 384.
See also Rogers Park Water Co. v.
Fergus, 178 111. 571; 53 N. E. Rep.
363.
Power in a city to secure a re-
duction in rates by arbitration does
not authorize the city itself to
change the rate. Des ]VIoines v. Des
Moines W. W. Co., 05 Iowa 348; 64
X. W. Rep. 269.
The acceptance by a gas company
of the provisions of a city ordinance
in which it is reserved the right of
the city council to fix the price
charged for gas after ten years, the
council at the end of the ten-year
term may fix the rates, which will
be conclusive on both the company
and the public, and which cannot
De interfered with by the courts in
the absence of a showing of fraud
or bad faith. Logansport, etc., Gas
Co. V. Peru, 89 Fed. Rep. 185.
434 on- AND «AS.
§401. Gas companies quasi public corporations — rates may be
changed.
There is a general tendency in the courts to get away from
the earlier decisions; and while not iii enomine overturning
these decisions, yet to give gi'ants to gas and water companies a
strict construction, and to hold that a State or city may revise
the company's rates unless the express words of the grant pro-
hibit it. The line of reasoning is that such companies are
quasi-corporations, charged with a public duty to supply an
article necessary to municipal life — a duty that tlie nmnici-
pality itself may perform and which it has delegated to another
to perform for it — that it enjoys a privilege necessarily often
of a monopolistic character, a privilege gi'anted it by the public,
and from whic^it derives a financial benefit; and that by the
acceptance of such a grant or privilege it devotes its property
in a measure to public use, and is therefore more subject to
State or municipal control or regulation than if it were purely
a private corporation.^^ These decisions find an illustration
in an Illinois case arising out of tlie annexation of the village
of Rogers Park by the city of Chicago. In 1888 Rogers Park
granted to a water company the right to lay water pipes in its
street in order to supply it and its inhabitants with water dur-
ing the period of thirty years at a rate fixed by the ordinance.
In 1893 the village was annexed to the city of Chicago, and
four years afterAvards the Chicago common council provided
by ordinance that the rates in the annexed territory should be
55 state V. Cincinnati Gaslight Pocatello Water Co. v. Standley
and Coke Co., 18 Ohio St. 262; (Idaho), 61 Pac. Rep. 518; Fellows
Logan Natural Gas and Fuel Co. v. Walker, 39 Fed. Rep. 6.51; Cin-
V. Chillicothe, 65 Ohio St. 186; 62 cinnati, etc., Ry. Co. v. Bowling
N. E. Rep. 122; People v. Chicago Green, 57 Ohio St. 336; 40 X. E.
Gas Trust Co., 130 111. 26g^; 22 N. E. Rep. 121; People's Gaslight and
Rep. 798 ; 8 L. R. A. 497 ; 29 Amer. Coke Co. v. Hale, 94 111. App. 406 ;
and Eng. Corp. Cas. 257; Toledo v. Waddington v. Allegheney Heating
N. W. Ohio, etc., Co.. 8 Ohio S. and Co., 6 Pa. Ct. Rep. 06; Tacoma Gas,
C. P. Dec. 277; 6 Ohio N. P. 531; 5 etc.. Co. v. Tacoma, 14 Wash.288;
Ohio Cir. Ct. Rep. 557 ; Cincinnati . 44 Pac. Rep. 655 ; Tampa v. Tampa
Gaslight and Coke Co. v. Avondale. W. W. Co. (Fla.), 34 So. Rep. 631.
43 Ohio St. 257; 1 N. E. Rep. 527;
LEGISLATIVE COXTROL.
435
the same as they were in that portion of Chicago not embraced
in the annexed territory, which were considerably below the
rates that had existed in the new territory before its annexation.
The water company contended that it was not boimd by the new
ordinance, for the reason that it violated the State constitution
in that clause which forbade the enactment of a law impairing
the obligation of a contract; and that until the thirty years had
expired it was entitled to supply the territory formerly em-
braced in Rogers Park at the rates established in the first
ordinance. But the Supreme Court of that State held that
its contention could not be sustained. "" The village exercised
the power," said the court, " by incorporating in the ordinance
a scale of prices as being just and reasonable maximum rates
to be paid to the company by the consumers. This provision of
the ordinance had not the effect to establish a contract between
the company and the village that the individual inhabitants
of the village should and would pay such rates for the period
of thirty years, or any fixed period of time, but was simply a
declaration on the part of the village that such rates were rea-
sonable. The legal effect was to establish, prima facie, that
the corporation, in order to discharge the duty it owed to tlie
public, must supply the commodity it had been created to sup-
ply at the prices named in the ordinance. It was a mode of
regulating and enforcing the discharge of a legal duty, not a
proposition looking towards a contract. Xo contract was neces-
sary to create an obligation on the part of the corporation to
supply water at a reasonable rate, for that rested upon it as a
duty. Xor did the fixing of rates by the alleged ordinance
of the village of Rogers Park vest in the company an irrevoc-
able right to exact such rates for the period it had been granted
permission to occupy the streets, alleys, and public places of
the village, or for any fixed period. A rate or price reasonable
and just when fixed may, in the future, become so unreasonably
high that the exaction of such rate or price is but an extortion.
The duty of the corporation does not, however, change, but
remains the same ; that is, to exact only reasonable compensa-
tion. The power of the State to enforce that duty is not ex-
436 OIL AND GAS.
liausted by its exercise in the first or any subsequent instance,
but is continuous, and may be asserted from time to time,
whenever necessary to prevent extortion by the agency created
by the State to serve the public. Whenever the evil of extor-
tion exists, the power to eradicate it may be successfully invoked.
In the exercise of that ]>ower by the State, or by a numicipality
exercising the power by delegation from the State, there is no
admixture whatever of any contractual element; nor does the
corjwration against whom the jwwer is exercised obtain any
vested proi)erty or property right in the sale of rates deemed
at any particular time to be reasonable maximum ]>rices for the
article to be su])])licd by the corporation. The annexation of
the village of Rogers Park to the city of Chicago operated to
clothe the city council of the city with ample authority to
determine, prinm facie, whether the rates demanded by the com-
pany for water applied to the inhabitants of that part of the
city which was formerly within the limits of the village were
reasonable, and to enact an ordinance reducing such rates if
deemed by it to be extortionate." ^°
§402. Same continued. — Rates may be changed.
The question receives furtJier exposition in another and ear-
lier Illinois ease. A water company was organized in Novem-
ber, 1882, to supply the city of Danville with water, pursuant
to an Act of the legislature providing that " the General As-
sembly shall at all times have power to prescril>e such regailations
and pTovisions as it may deem advisable, which regulations
and provisions shall be binding on any and all corporations
formed under the provisions of " the Act.^^ By the provisions
of an ordinance of the city of Danville under which the com-
pany received its right to occupy the streets of that city and
5G Rogers Park Water Qlo. v. Fer- was not such a contract as bound
pus, 178 111. 571; 53 N. E. Rep. him to continue to pay the rates of
363; People's Gaslight and Coke Co. the company permitted by the ordi-
V. Hale. 94 111. App. 406. nance when the application was
It was also held in this case that made before the reduction was at-
the signing of an application by the tempted.
consumer for water, subject to the s" 1 Starr and Curt. Ann. Stat,
regulations thereafter to be adopted, (2d ed.), p. 1006, Sec. 9.
LEGISLATIVE CONTKOL.
437
supply its inliabitants witli water the rates for city hydrants
were tixed for the teriu of thirty years; and the company fur-
nished to the city water ai those rates for years until 1895,
when the common council adopted a new ordinance, lowering the
rates for hydrants from $62.50 per annum for the first 100,
and all others $50, to $50 per annum for the first 140, and $10
for all others ; which ordinance the company refused to accept.
The city was authorized by statute to enter into a contract,
at the time it did so, " for a supply of water for public use,
for a period not exceeding thirty years." ^' This Act was silent
as to the rates to be charged and as to the mode of fixing them ;
but a statute one day later in date emi^owercd a city " to au-
thorize any person or private corporation to construct and main-
tain water works " at such rates as might be fixed by ordinance
for a jx^riod not exceeding thirty years.^" In 1891 an Act of
the legislature was passed authorizing a city in which was
a eoriX)ration supplying it and its inhabitants with water " to
prescribe by ordinance maximum rates and cliarges for the
supply of water furnished by such . . . corporation to such
citv . . . and the inhabitants thereof, such rates and
charges to be just and reasonable " ; and if the rates were
unjust and unreasonable, the Circuit Court was empowered to
review and determine them. The company refused to accept
the provisions of the ordinance of 1895, claiming that it was
a violation of its contract with the city; and brought suit to
recover a year's rental under the old ordinance. The court
held the new ordinance was valid ; and that the company could
only recover according to the rates fixed by it. The court said
that the " authority to contract for a supply of water for public
use for a period not exceeding thirty years " did " not neces-
sarily provide that the price of the supply should be fixed for
the entire period. The supply could be made for the entire
term, but the price is to be determined from time to time, and
the rates to l)e settled by the rules of the common law." ''"^ The
58 1 Starr and Curt. Ann. Stat. p. eo Citing Carlyle v. Carlyle, etc.,
545. Co., 52 111. App. 577.
59 1 Starr and Curt. Ann. Stat. p.
508.
438 OIL AND GAS.
court admitted that the statute under which the company was
formed was silent on the question of rates, but said : '' Where
the charter of a gas or water company in a city does not ex-
pressly confer on the company the right to fix its owm prices,
such silence cannot be construed into a grant of the franchise to
fix its own rates. So, here, the silence of the Act as to the
rates to be charged does not necessarily confer upcni the munici-
pality the power to fix one established rate for the whole ^x^riod
during which the contract is to run. If, however, it be doubtful
whether the language of the Act does or does not confer the
power upon cities to contract for a supply of water at a fixed
rate for the whole period of thirty years, such doubt must be
resolved in favor of the public." The court then proceeds to
say : " The clause ' for a period not exceeding thirty years '
qualifies the words ' construct and maintain the same,' but does
not qualify tlie words ' at such rates as may be fixed by ordi-
nance.' In other words, the council may authorize a private
corporation to construct and maintain water works for a period
not exceeding thirty years, and they may authorize a private
corporation to construct and maintain the water works at such
rates as may from time to time be fixed by ordinance." ^^ An-
other case of the same character was that of the city of Freeport,
in which a like decision was made.*'^ Appeals from these deci-
cions were taken to the Supreme Court of the United States,
and the cases affirmed ; but the decisions were put upon grounds
slightly different from that of the Illinois court, as will appear
in the following extract from tlie opinion in the Freeport case :
" Our conclusion is that the powers conferred by the statutes of
1872 can, without straining, be construed as distributive. The
city council was authorized to contract with any person or
61 Danville v. Danville Water Co., short opinion is rendered is af-
, 178 111. 299; 53 N. E. Rep. 118; firmed on appeal to the Supreme
180 111. 235; 54 N. E. Rep.'*224. In 862. See also Tampa v. Tampa
another case between the same par- W. W. Co., 34 So. Rep. 631.
ties (186 111. 326; 57 N. E. Rep. 02 Preeport Water Co. v. Free-
1129), the court renders a short port, 186 111. 179; 57 N. E. Rep.
opinion, referring? to the opinion 862. See also Tampa v. Tampa W.
from which the above quotation is W. Co., 34 So. Rep. 631.
made; and this case in which the
LEGISLATIVE CONTEOL. 439
corporation to construct and maintain water works at such rates
as may he fixed by ordinance, and for a period not exceeding
thirty years. The words ' fixed by ordinance/ may be con-
strued to mean by ordinance once for all to endure during the
whole period of thirty years ; or by ordinance from time to
time as might be deemed necessary. Of the two constructions
that must be adopted, which is most favorable to the public,
not that one which would so tie the hands of the council that
the rates could not be adjusted as both parties might require
at a particular time." '^^ Where a gas company, organized
before any statute or constitutional provision, authorized a
regulation of it by the State or a municipality, was authorized
to charge not to exceed three dollars per thousand feet, after
such a statute was enacted, consolidated, pursuant to a statute
authorizing it to do so, subject to the conditions resting upon
each of them, none of them being in fact extinguished, it was
held that it subjected itself to regulations, with respect to its
rates, by the municipality, and could only charge the rates al-
lowed by the companies it had absorbed."*
§403. Same continued — rates may be changed.
The Supreme Court of Ohio holds that gas companies, because
of their ]Deculiar relation to the public, are such corporations
as their rates to private consumers may be changed by the legis-
lature or by a municipality in pursuance of a statute authorizing
it to make a diange. In 1849 the legislature chartered the
63 Freeport Water Co. v. Free- " consistent with and subject to "
port City, 180 U. S. 587; 21 S. Ct. its provisions and the laws of the
493; affirming 186 111. 179; 57 N. State. A general law authorized
E. Rep. 862; Danville Water Co. v. a municipality of the population
Danville, 180 U. S. 610; 21 St. Ct. specified to regulate and control the
505; affirming 186 111. 326; 57 X. E. " use" of gas. but contained no pro-
Rop. 1 129 ; Rogers Park Water Co. vision as to the price. It was held
v. Fergus, 180 U. S. 624. that the city could not adopt a char-
64 People's Gaslight and Coke Co. ter empowering it to fix tlie price
V. Chicago, 114 Fed. Rep. 384. of that commodity to be furnished
The constitution of the State of its inhabitants. Tacoma Gas, etc..
Washington authorizes a municipal- Co. v. Tacoma, 14 Wash. 288; 44
ity of a specified population to form Pac. Rep. 655.
a charter for its own {government
440 OIL AND GAS.
Zanesville Gaslight Company ; and in the same year the city of
Zanesville authorized this company to lay its pipes in the city's
streets and alleys, providing that so long as it enjoyed the privi-
lege granted it should supply the " town council " with gas at
a price not to exceed two dollars and fifty cents a thousaml
cubic feet. At that time the city had no legislative authority
to regulate the price of gas. Subsequently the legislature
enacted a statute authorizing municipalities to fix the price at
which gas should be sold by gas companies ; and the city of
Zanesville thereafter in 1884 fixed the price to itself and its
citizens at one dollar and twenty-five cents per thousand cubic
feet. The gas company never accepted the provisions of this
last statute nor of this last ordinance. But the Supreme Court
held that it could not charge more than the price fixed by the last
ordinance, invokilig the doctrine of Munn v. Illinois,"^ and
holding that it was such a quasi-public corporation, enjoying
special privileges of such a public character that its rates were
subject to legislative control.''^' A case in tlie Federal Circuit
Court for the Southern District of Ohio illustrates how far the
courts are inclined to go to enable the State or a municipality
to regulate the rates of gas or water. On March 18, 1887, the
city of Dayton, pursuant to statutes autliorizing it to do so,
adopted an ordinance giving a natural gas company the right to
lay its mains in the streets and supply the inhabitants of the
city with gas, giving it eighteen months in which to introduce
the gas, and providing that if this was not done by January 1,
1889, the city might, by resolution, declare a forfeiture of the
company's franchise. The company accepted the provisions
of the ordinance, began to lay its pipes in the streets, but failed
to complete the enterprise or to supply gas by January 1, 1889.
C5 94 U. S. 113. Ct. 557; 3 Ohio Dec. 273; Toledo v.
6 6 Zanesville Gaslight ^o. v. Northwestern, etc., Co., 8 Ohio S.
Zanesville, 47 Ohio St. 35; 23 N. E. and C. P. Dec. 277; 6 Ohio N. P.
Rep. 60; 23 Wkly. L. Bull. 70; 29 531. See Spring Valley W. W. v.
Am. and Eng. Corp. Cas. 190; State Schottler. 110 U. S. 347; Agua Pura
V. Cleveland, etc., Co., 3 Ohio Cir. Co. v. Las Vegas, 10 N. M. 6; 60
Ct. 251: State v. Columbus, etc., Pac. Rep. 208; 50 L. R. A. 224. See
Co.. 34 Ohio St. 572; Toledo v. also Tampa v. Tampa W. W. Co., 34
Northwestern, etc., Co., 5 Ohio Cir. So. Rep. 631.
LEGISLATIVE CONTEOL. 441
On February 2, 1889, the city declared all its rights forfeitured.
Meantime, on December 23, 1887, it passed an ordinance fixing
the maximum prices the company should have a right to charge
for gas furnished for fuel purposes by mixers for the next
ensuing five years, which ordinance the company accepted.
On March 28, 1889, the name of the company having been
changed, the city passed an ordinance granting to it the right
to- occupy its streets, for the term of twenty years, with the ob-
ject of furnishing gas " for heating, fuel, and power purposes
only " ; and in it provided that any consumer should have the
right to require gas to be furnished by meter measurement, at a
rate not to exceed a certain figure, and not by the former
schedule rates, the company to furnish the meter at a rental of
three dollars a year, payable in advance. The meter rate was
considerably lower than the former rate. A subsequent section
provided that " the contract heretofore made between the city
and this company, as to schedule of prices, shall be in full force,
except as herein altered, and for the unexpired time of said
original contract." The contract under the ordinance of De-
cember 23, 1887, expired January 10, 1893. Shortly after the
company went into the hands of a receiver, who claimed that
after January 10, 1893, there was no rate fixed by the council
that was operative and in force ; and proceeded to carry into
effect a resolution of the gas company, adopted in anticipation
of the termination of the contract created by the ordinance of
December 23, 1887, as modified by that of March 28, 1889,
and advanced the rates to nearly double what they had been by
the meter measurements. Before any of these ordinances were
adopted a statute had been enacted authorizing city councils " to
regulate, from, time to time, tlie price " which natural gas com-
panies could charge for natural gas " for lighting or fuel pur-
poses," and providing that the companies could not charge
more than the price then fixed. The statute also provided that
if the council fixed " the maximum price at which it requires
any company to furnish gas to the citizens, or public buildings,
or for the purpose of lighting the streets . . . for a period
not exceeding ten years, and the company assents thereto by
442 OIL AND GAS.
written acceptance ... it shall not be lawful for the coun-
cil to require such company to furnish gas at a less price during
tlie period of time agreed upon, not exceeding ten years as
aforesaid." The court held that after the five years' rate ex-
pired, as provided for by the ordinance of December 23, 1887,
the rates provided by tlie ordinance of March 28, 1889, were
in force. The court adopted the reasoning of the Supreme
Court of the State of Ohio, and followed the construction it had
given to the statute cited.*^^ On appeal the case was affirmed,
the court holding that the provisions for a maximum rate was
not a contract for any period, but an exercise of the }X)wer to
regulate, and a limitation on the license granted, and continued
in force after the expiration of the original contract, and until
repealed. The court also held that when a municipality is
authorized to enter into a contract for a period not to exceed
ten years, its contract for twenty years, or for an indefinite
time, is entirely void, and that it cannot be sustained as a con-
tract for ten years. *^^
§404. Municipality delegating power to change rates.
If a statute (or an ordinance) empowers a municipality to
fix and regulate rates, the governing body of such municipality,
or the body especially authorized to fix or regulate the rate must
do it; and the power to fix or regulate it cannot be delegated
to any other person or body than the one named in the statute or
CT Manhattan Trust Co. v. Day- vision of which a statute may be
ton Natural Gas Co., 55 Fed. Rep. enacted to regulate corporations.
181. Tlie syllabus would lead one to
68 Manhattan Trust Co. v. Da^- think that the court rested its do-
ton, 59 Fed. Rep. 327 ; 8 C. C. A. cision upon the unconstitutionality
140; 16 U. S. App. 588. of this statute; but the decision is
The case of the Cleveland Gas- based upon the fact that the bill for
light and Coke Co. v. Cleveland, an injunction charged, which the
71 Fed. Rep. 610, .35 Ohio ,L. J. demurrer admitted, that the price
155, is not so much at variance with fixed by the municipality was so
the Ohio cases as would at first low that gas could not bo manu-
soom. The gas com])any's charter facturcd at the figure named. The
dated from 1846, and it was occu- court fsaid the rates fixed must be
pying the streets when the constitu- reasonable,
tion of 1850 was adopted, by a pro-
LEGISLATIVE COIs^TROL. 443
ordinance. Xor can a contract with a gas company be made
that will authorize some body other than the one named in the
statute to regulate the price.*''' But where the constitution of
a State provided that private corporations might he formed
under general laws, which laws might be altered or repealed
from time to time ; and pursuant to its provisions a company
was chartered, providing that the rates might be fixed by a
board composed of two members appointed by the municipality,
two appointed by the company and the fifth by the four; and
thereafter a new constitution was adopted providing that the
rates should be fixed by the city and county board of super-
visors, it was held that the charter was subject to changes ac-
cording to the rights reserved in the first constitution, and it
was not impaired by the last constitution."** Yet where a statute
provided " that the board of gas trustees may prescribe by by-
laws the price of gas and coke, under such rules and regulations
as by ordinance the council may prescribe," it was held that the
action of the trustees in raising the price of gas without an ordi-
nance authorizing them so to do was void.'^^
§405. Annexing territory after contract made.
If a city has a contract with a gas company to supply gas at
a certain fixed price, and thereafter extends its limits, the rate
so fixed will be appliable to the territory annexed.'^" Thus
where a gas company, pursuant to statutory authority, extend-
ing its gas mains into a village where it is vested with the right
to lay its mains, and uses such mains to convey to such village
gas manufactured by it, and uses its manufactory and mains as
69 Cincinnati Gaslight and Coke ley W. W. v. San Francisco, Gl
Co. V. Avondale. 43 Ohio St. 257; Cal. 3.
1 X. E. Rep. 527. See Schwede v. "i Foster v. Findlay, 5 Ohio Cir.
Heinrich. etc., Co., 29 Wash. — ; 69 Ct. 455; 3 Ohio Cir. Dec. 224.
Pac. Rep. 362. 72 See People v. Deehan, 153 N. Y.
-0 Sprinp: Valley W. W. v. Schott- 528; 47 N. E. Rep. 787; reversing
ler, 110 U. S. 347; 4 Sup. Ct. Rep. 11 X. Y. App. Div. 175; 42 X. Y.
48; Spring Valley W. W. v. Bart- Supp. 1071.
lett, 16 Fed. Rep. 615; Spring Val-
444 OIL AND GAS,
one plant, it was regarded as established in the village, within
the meaning of a statute giving a niunicipality power to regulate
the price of gas ; and such extension of the mains was regarded
as the extension of the gas works for supplying the village with
gas, within the meaning of a statute authorizing the council
"' to agree, by ordinance, with any person or persons, for the
. . . extension of gas works . . . for supplying the
corporation or its inhabitants with gas." ^^
§406. Police power regulations.
As an instance of tli^ exercise of the police power by a munici-
pality, is the removal of a lam.i>post where the public conven-
ience requires it, and no contractual relation with the gas com-
pany prohibits it. In such an instance the power to remove it
may be delegated.'* So an ordinance adopted subsequent to the
granting of a franchise may provide for an inspection of
meters.^^ So in the case of a water company (and no doubt the
same is true of a gas company) a municipality may take such
measures as may be necessary to secure pure water, " the pay
of its [the company's] just contributions to the public burdens,
and tlie observance of its own ordinances respecting the manner
in which pipes and mains of the company should be laid through
the streets." '''
73 Cincinnati Gaslight and Coke 215; 8 Am. St. Rep. 844; 20 Am.
Co. V. Avondale. 43 Ohio St. 257; 1 and Eng. Corp. Cas. 258.
i>f. E. Rep. 527. See also Rogers 75 Cincinnati, etc., Co. v. State, 18
Park Water Co. v. Fergus. 180 U. S. Ohio St. 237.
624; 21 S. Ct. Rep. 490, affirming tg ^alla ^Yalla Water Co. v. Wal-
178 111. 571; 53 N. E. Rep. 563, la Walla, 172 U. S. 1; New York v.
and People's Gaslight and Coke Co. Squire, 145 U. S. 175; St. Louis v.
V. Chicago, 114 Fed. Rep. 384. Western U. Tel. Co., 148 U. S. 92;
74 New Orleans Gaslight Co. v. Missouri, etc.. Co. v. Murphy, 170
Hart, 40 La. Ann. 474; 4 So. Rep. U. S. 78, affirming 130 Mo. 10; 31
S. W. Rep. 594.
CHAPTER XXI.
CONTRACTS FOR MUNICIPAL LIGHTING.
§407. Power to make contract.
§408. Constitutional or statutory limitations on indebtedness.
§409. Length of term of contract.
§410. Extending term of contract.
§411. Bids for lighting.
§412. How contract executed.
§413. Liability of city for breach of contract. — Damages.
§414. Assignment of lighting contract.
§415. Rescission of contract. — Breach.
§416. Discontinuing use of gaS.
§417. Changing contract.
§418. Gas furnished not covered by contract. — No contract.
§419. Municipality extending limits after making contract.
§420. Municipality receiving light under a void contract.
§421. Contracts void for uncertainty.
§422. Moonlight schedule.
§423. The price to be paid.
§424. Free light.
§425. Exemption from taxation in fixing price of gas.
§426. Cost of light, out of what fund paid.
§427. Appropriation for light, when necessai-y to validity of contract.
§428. Exhaustion of appropriation as a defense.
§429. Tax to pay for gas or to support gas plant.
§430. Assessing cost of public lighting upon abutting property. — Cost of
municipal plant.
§431. Mandamus to compel auditing of payment of bills.
§432. Action to recover for gas supplied.
§433. Interest.
§434. Lamps — ■ Posts.
§435. Ignited States revenue tax.
§436. \A'aiver as to quality of gas or light.
§437. Extending mains, failure to pay for light.
§438. Receiver bound by contract.
§439. Municipal officer interested in contract.
§407. Power to make contract.
There has never been any denial of the power of a munici-
pality to make a contract for lighting its streets and pnblic
445
440 OIL AlSlU GAS.
buildings worthy of regard. Whether it is its duty or not to
light its streets and public places, the right to make such con-
tracts is unquestioi\ed, whether a statute expressly authorizes
it or not. " A municipal corporation," said the Supreme Court
of Indiana, " not having either body or limbs, feet or hands,
but being merely a le<^al entity cannot execute its own acts, nor
administer its own affairs. To do this it must employ persons^
other corporations, or agencies of some kind, and to employ them
and agree to pay them ^s to make a contract; and if it could
not make such contracts, and was not bound thereby, it could not
carry on the purposes or attain the objects for which it was
established. Ita ordinances will not execute themselves; and
to deny it the power to have them executed would be to render
it useless and helpless. When it makes a contract witliin tbe
scope of its power — ■ not ultra vires — which is not against pub-
lic policy, and not fraudulent, it must be enforced the same as
the contract of a business corporation, or a person." When a
municipality enters into a contract with an individual or a
corporation for the lighting of its streets it acts by its power
to contract, and not in its legislative capacity — in its private
capacity, as has been said, and not in its public capacity.^ Offi-
cers acting under the charter have the power to bind the mu-
1 Indianapolis v. Indianapolis etc., Co., 9 Neb. 339; 2 N. W. Rep.
Gaslight and Coke Co., 66 Ind. 396; 870; Keihl v. South Bend. 76 Fed.
Indianapolis v. Consumers' Gas Rep. 921; 44 U. S. App. 687; 22
Trust Co., 140 Ind. 107; 39 N. E. C. C. A. 618; 36 L. R. A. 228;
Rep. 433; 27 L. R. A. 514; 48 Amer. Waymart Water Co. v. Waymart,
and, Eng. Corp. Cas. 151 ; San Fran- 4 Pa. Supr. Ct. 211; Winfield v.
Cisco Gas Co. v. San Francisco, 9 Winfield Gas Co., 37 Kan. 24; 14
Cal. 453; Richmond County *Gas Pac. Rep. 499; Conyers v. Kirk, 78
Co. V. Middleton, 59 N. Y. 228; Ga. 480; 3 S. E. Rep. 442; Anoka
Harlem Gaslight Co. v. Mayor, 33 W. W., etc., Co. v. Anoka, 109 Fed.
N. Y. 309, affirming 3 Robt. 100; Rep. 580; Crowder v. Sullivan, 128
Davenport Gaslight Co. v. Daven- Ind. 486; 28 N. E. Rep. 94; 13 L.
port. 13 la. 229; State V. Milwaulcee R. A. 647; Gosport v. Pritchard,
Gaslight Co., 29 Wis. 454; 9 Am. 156 Ind. 400; 59 N. E. Rep. 1058;
Rep. 598 ; Norwich Gaslight Co. v. Seward v. Liberty, 142 Ind. 551 ;
Norwich City Gas Co., 25 Conn. 42 N. E. Rep. 39; Gaslight, etc.,
19; Philadelphia v. Fox, 64 Pa. St. Co. v. New Albany, 156 Ind. 406; 59
169; Garrison v. Chicago, 7 Biss. N. E. Rep. 176.
480; Nebraska City v. Nebraska,
MUXICIPAL GAS CONTRACTS. 447
nicipalitv; and it cannot be urged tliat they were not officers
de jure.' The fact that a municipality is authorized to build
and maintain a plant of its own does not necessarily prevent
it from making a contract for light, and this is true even
though in the charter authorizing the building of such a plant is
bestowed no specific power to enter into a contract with a com-
pany for light. Thus a gas company's statutorv^ charter au-
thorized it to furnish gas to the city for which it was created ;
and the charter of tlie city only authorized it to build and
maintain a gas plant ; and yet it was held that the city could
bind itself by a contract with the company for lighting the
streets/ In as much as entering into a contract for lighting
the streets is not the exercise of legislative power, the contract
need not be by formal ordinance or resolution.*
§408. Constitutional or statutory limitations on indebtedness.
Constitutional or statutory provisions forbidding municipali-
ties contracting a debt beyond a certain amount or percentage
of its assessable property are not uncommon, and must be
considered in entering into a contract for light. If the entire
amount a city will pay on a twenty years' contract for light must
be considered a debt of the city when the contract is entered into,
2 Lake Charles Ice, etc., Co. v. ing. under a statute providing that
Lake Charles, 106 La. 65; 30 So. it "shall have power to establish,
Rep. 289. publish, modify, amend, or repeal
3 Newport v. Newport Light Co., ordinances, rules or regulations, and
11 Ky. L. Rep. 840; Indianapolis by laws," "to provide lamps and
V. Indianapolis, etc., Co., swpra. gas fixtures, and to light the streets,
•t Gosport V. Pritchard, 156 Ind. parks, and public places of every
400 ; 59 N. E. Rep. 1058. description in " the city. Taylor v.
Power in a city to furnish water Lambertville (N. J.), 10 Atl. Rep.
to its inhabitants and control the 809.
erection of water works for that A statute may give the courts
purpose, is sufficient to authorize power to reform a city's contract,
the city to enter into a contract for Du Bois v. Du Bois, etc., Co., 176
water and to grant a franchise for Pa. St. 430; 35 Atl. Rep. 248; 38
such purpose. Anoka W. W., etc.. W. N. C. 417; 34 L. R. A. 92.
Co. V. Anoka, 109 Fed. Rep. 580. Vote to \evj tax, see Baltimore,
In New Jersey before a city can etc.. Co. v. People (111.), 66 N. E.
let a lighting contract it must first Rep. 246.
establish a system of street light-
448 on. AND GAS.
then many a city is so indebted that it cannot enter into such a
contract, where such constitutional or statutory- provisions pre-
vail ; but where each year's supply of light is to be paid for at
the end of the year, and that is to be considered the extent of
the city's debt — a debt not arising until the end of the year —
a very different phase of the situation is presented. These
provisions are, of course, not identical in language, although
the same idea runs through them. A provision of the constitu-
tion of Indiana provides that no municipal corporation " shall
ever become indebted in any manner or for any purpose, to an
amount, in the aggregate exceeding two per centum on the value
of the taxable property within such corporation, to be ascer-
tained by the last as^tessment for State and county taxes previous
to the incurring of such indebtedness." A city entered into a
tsventy-year contract for water, the rent payable annually. The
aggregate amount of rent to be paid under this contract exceeded
two per centum of the assessed value of the property within
the city ; but an annual payment fell below that amount. The
contract was held to be valid. " If the aggregate sum of all
the yearly rents," said the court, " is Uj be taken as a debt
within the meaning of the constitution, then many cities will be
left without the means of procuring things so essential to public
welfare and safety. We are not to presume, unless coerced by
the vigor of the words, that the framers of the amendment, or
the electors who voted for it, intended to destroy the corporate
existence of our municipalities or to leave them without water
or light. Xor are we to presume that the electors were ignorant
of the existence, condition and necessities of our great towns and
cities. On the contrary, we are to presume these things were
known to the electors, an<i^that they intended to foster the best
interests of these instruments of local government.
To deny the right to procure light and water is to deny it to
the inhabitants of the towns and cities, and these form no incon-
siderable part of the population of the State. We cannot, there-
fore, by mere intendment declare that the electors of the State
meant to lay down a rule that would practically take from the
inhabitants of our cities the yxjwer to supply themselves with
.MlXKirAT. GAS COXTRACTS. -^-^^
^vater or light. To reach the eoiieUisiou that they meant to do
this, ^ve niiist find clear warrant in the language of the constitu-
tional provision it.self." " It is clear that if the city," con-
tinncs the conrt, " should fail to perform its contract, the re-
covery would be for damages for a breach of contract, and not
the contract rate of compensation, and, therefore, it cannot be
true that the whole of the comi^nsation is certainly demand-
able by the corix^ration with which it contracts. It may be that
but a "small part of even one year's compensation can Ik^ recov-
ered. On the other hand, the faihire of the water company
to perform may put an end to the contract, and that would, of
course, terminate all liability of the umnicipal c^u■|xu•ation.
There cmild be no action maintained against the city for Uie
recovery of compensation under the contract without evidence
that the water had lx>en furnished, and this proves that there
is no indebtedness until the water has been supplied in accord-
ance with the terms of the contract. The etfect of the proposed
contract is that the city shall be liable iov water as it is fur-
nished and not before. It is not until after the water has Ix^eu
furnished that there can Ix^ justly said to be a debt, for, while
there might be a liability for damages, in case oi a breach on
the ]iart of the city, there is certainty none under the contract
until the city has received that iov which it contracted. ^ If
it can pay this indebtedness when it comes into existence, with-
out exceeding the constitutional limiiation, then there is no vkv
latiou of the letter, and surely none of the spirit of the consti-
tution. We are careful to say that when the debt a^ttes into
existence, and not to say when it Ixvomes due, for between these
things there is an essential difference. The object to W accom-
plished by the amendment, the condition and necessities of the
municiiwlities, as kno^^'n to the authors of the amendment, and
the jtist force of the language employed, authorize us to con-
clude that the inhibition of the constitution does not ai>ply to
contracts for water to be paid for as the water is furnished,
provided it is shown that the contract price can Iv i>aid from
the current revemtes as tlu^ water is furnished and without in-
creasino- the corix.rate indebtedness Ixn-ond tlu> constitutional
450 OIL AND GAS.
limit." ^ The Supreme Court of Illinois has used the follow-
ing language concerning a contract for gas: "The contract
was for the furnishing of an article for nightly consumption
by the city during a period of thirty years, fixing the price at
which the article shonld l>e furnished. There was no indol)tod-
ness in advance of anything l)eing furnished, but indebtedness
arose as gas should have been furnished along from night to
night during the period of thirty years. The contract provides
for the payment monthly, at the end of each month that became
due for the month then ended. When the company has fur-
nished the gas for a certain month, then there is a liability —
an indebtedness arijips — and not before, as we conceive. Hence
the amounts that might become due and payable under the eon-
tract in future years, did not constitute a debt against the city
at the time of entering into the contract, within the meaning of
the constitution." ^ But a contract for a gas plant to be leased
by the city, which increases the city's indebtedness beyond the
constitutional limit is void, although merely executory ; ^ and
so is a contract whereby a city agrees to pay a definite sum
on the completion of water W'Orks or a gas plant. ^ But an
ordinance providing that any unexpended appropriations left
5 Valparaiso v. Gardner, 97 Ind. 687; .36 L. R. A. 228; Hay v.
1; 49 Am. Rep. 416; Sackett v. New Springfield, 64 111. App. 671; Gold
Albany, 88 Ind. 473; 45 Am. Rep. v. Peoria. 65 111. App. 602; Winston
467. V. Spokane. 12 Wash. 524; 41 Pac.
6 East St. Louis v. East St. Louis, Rep. 888; Brown v. Corry. 175 Pa.
etc., Co., 98 111. 415; Dively v. Cedar St. 528; .34 Atl. Rep. 854 (affirming
Falls. 27 la. 227; Grant v. Daven- 4 Pa. Dist. Rep. 645; 17 Pa. Co.
port. 36 la. 396 ; French V. Burling- Gt. Rep. 490); State v. Quayle
ton, 42 la. 614; Burlington Water (Utah). 71 Pac. Rep. 1060; New
Co. V. Woodward, 49 la. 58 ^ City (Jrleans Gaslight Co. v. New Or-
Water Supply Co. v. Ottumwa, 120 leans, 42 La. Ann. 1 18; 7 So. Rep.
Fed. Rep. 309; State v. McCauley, 559; Walla Walla Water Co., 172
15 Cal. 429; People v. Pacheco, 27 U. S. 1; 19 Sup. Ct. Rep. 77. See
Cal. 175; Crowder v. Sullivan, 128 Appeal of City of Erie, 91 Pa. St.
Ind. 486; 28 N. E. Rep. 94; 13 L. R. 398; Gosport v. Pritehard, 156 Ind.
A. 647; Lamar Water, etc., Co. v. 400; 59 N. E. Rep. 1058.
Lamar, 140 Mo. 145 ; 39 S. W. Rep. 7 Spilman v. Parkersburg. 35 W.
768; Creston W. W. Co. v. Creston, Va. 605; 14 S. E. Rep. 279.
101 la. 687; 70 N. W. Rep. 739; « Culbertson v. Fulton, 127 111.
Keihl. V. South Bend, 76 Fed. Rep. 30; 18 N. E. Rep. 781.
921; 22 C. C. A. 618; 44 U. S. App.
MUXICIPAL GAS CONTRACTS. 451
at the end of each year shall be used to pay for a plant pur-
chased of a lighting company, if the city elects to purchase it;
and in case of a purchase the acceptance shall create no indebt-
edness against it in favor of the company, is valid ; for in
that case there is no debt against the city." If at the time
a city enters into a contract for light, to run over a long
series of years, the indebtedness of such city is not so great as
to prohibit it ; and before it expires the debt so increases as to
exceed the limit of an annual installment falling due, such
installment cannot be collected from it, and the claim for it is
void.^"
§409. Length of term of contract.
Elsewhere, under the head of ^Monopolistic Grants and Mono-
polistic Contracts, is treated the power of a municipality to
bind itself in perpetuity or f(jr a long term of years to take gas
from a gas company; and it is not necessary to repeat here
what is said there. Suffice to say here, that when a statute pro-
vides that a nmnicipality may enter into a contract for the
lighting of its streets for a certain number of years, it cannot
exceed the limitation thus imposed upon it. If the municipal-
ity undertakes to enter into a contract for a longer period than
the statute authorizes, that fact will not, it has been held,
render it invalid ; but it will be valid for the time such numici-
9 Hay V. Springfield, 64 111. App. taininj; tlie amount of such debt,
671. future interest which is not due on
10 Keihl V. South Bend. 7G Fe<l. the day it becomes necessary to fix
Rep. 921; 44 U. S. App. 687; 22 C. the sum of indebtedness is not to be
C. A. 618; 36 L. R. A. 228. counted. Unearned interest is not.
As to waiver of a statutory pro- within the true intent and meaning
vision prohibiting an indebtedness, of the constitution, a part of the
see Bronx Gas, etc., Co. v. New debt of the city. Epping v. Colum-
York. 17 X. Y. Misc. 433; 41 N. Y. bus (Ga.), 43 S. E. Rep. 803. citing
Supp. 3.58. Dawson v. Water Works Co., 106
In Georgia the rule was said to Ga. 696; 32 S. E. Rep. 907; Colson
be ascertained by adding to the v. Portland, Fed. Cas. 3275; Board
principal of all outstanding indebt- v. Hopkinsville, 9.5 Ky. 239; 24 S.
edness the amount of all accrued W. Rep. 872; 44 Am. St. Rep. 222;
interest that may be past due and 23 L. R. A. 402; Culbertson v. Ful-
payable on the day the amount of ton. 127 111. 30; 18 X. E. Rep. 781;
the debt is to be fi.xed. In ascer- Springfield v. Edwards, 84 111. 626.
452 OIL AND GAS.
pality is authorized to make the contract. Thus where a munici-
pality was empowered to enter into a contract for the furnishing
of water for twenty years, and did so ; but it was also provided
in the contract that it should remain in full force for an addi-
tional twenty years, if the municipality did not purchase the
water works before the expiration of the first term, it Avas held
to be a valid contract for the original term of twenty years.^^ A
statute authorizing municipal authorities to enter into a contract
for water from year to year does not require them to make a
new contract every year, but they may enter into one for a term
of years — as for twenty years.^' So where a city entered into
a contract for twenty-one years, to furnish the city with water ;
and the company at great expense l)uilt water works and main-
tained them for four years; and the city levied the proper tax
and paid the hydrant rental for three years, and otherwise
recognized the validity of the contract ; it was declared that
the contract would not be held void for the reason that it ex-
ceeded the length of time allowed by statute, but it would be
upheld for a reasonable time, the circumstances and condition
of the city as to population and assessed valuation being sub-
stantially the same, and no other better facilities being offered
upon more reasonable terms.^^ It is no objection to the contract
that the term begins in the future, or even that it does not
begin until after the terms of the councilmen authorizing it has
expired." But the proposition that a contract exceeding the
cess of time, has not met with favor from all the courts. Thus
length of time permitted by a statute is void only as to the ex-
in Ohio it has been held that such a contract is void, absolutely.
" The language of the statute is," said the Supreme Court of
11 Neosho City Water Co. v. Ne- licothe, 65 Ohio St. 186; 62 N. E.
osho, 136 Mo. 498; 38 S. W. Rep. Rep. 122.
89; State v. Ironton Gas Co., 37 Where a contract was made for
Ohio St. 45. twenty years, instead of ten, as it
12 Light, Heat, etc., Co. v. Jack- should have been, in which rates
son, 73 Miss. 598; 19 So. Rep. 771. were agreed upon; it was held that
13 Columbus Water Co. v. Colum- at the end of the first ten years the
bus, 48 Kan. 99; 28 Pac. Rep. 1097. municipality would regulate the
14 Logan Natural Gas Co. v. Chil- . rates. State v. Ironton Gas Co., 37
Ohio St. 45.
MUNICIPAL GAS CONTRACTS. 453
that State, " that the municipality shall not have power to con-
tract for any light for any terra not exceeding ten years. This
implies, Avith as much force as if it had been expressly stated,
that the municipality shall not have power to contract for any
longer than ten years, and the natural inference is, we think,
that the purpose is to inhibit such contracts entirely, for the
only certain way of insuring their non-enforcement is to pre-
vent their attempted execution. This may not be effectually
done unless they are held to be void." ^^ This rule has been
followed in Indiana.^" In this Indiana case a contract was
entered into in 1870 for gas for a period of twenty years be-
ginning in 1871, and providing that at the end of that period
the city " will either purchase from the said gas company . . .
their gas works, pipes, meters and other property at the fair
and reasonable value thereof at that time, or grant them the
same right and privileges as contained in this ordinance for
another term of not less than twenty years, but subject, how-
ever, to such other reasonable conditions as the interest of
said city, and of her citizens, may at that time require." In
1883 the legislature enacted a statute prohibiting a city enter-
ing into a contract for light for a term exceeding ten years in
duration; and in 1888, three years before the first twenty
years' period had expired, the city entered into a contract, sup-
posed to be in pursuance of the terms of the first ordinance
noted, for gas for a tenn of twenty-three years. This last con-
tract was held to come within the prohibition of the statute
referred to.^^ Of contracts extending over a long term of years,
15 Wellston V. Morgan, 59 Ohio cil. Illinois Trust and Savings
St. 147; 52 N. E. Rep. 127. Bank v. Arkansas City, 76 Fed.
16 Gaslight, etc., Co. v. New Al- Rep. 271; 22 C. C. A. 171; 34 L. R.
bany, 156 Ind. 406; 59 N. E. Rep. A. 518; Adrian W. W. v. Adrian,
176. See also to the same effect 64 Mich. 584 ; .31 N. W. Rep. 529 (a
Manhattan Trust Co. v. Dayton. 59 thirty-year contract construed).
Eed. Rep. 327; 8 C. C. A. 140; State A power to enter into a contract
V. Harrison, 46 N. J. L. 79; Somer- for gas "and to cause the annual
set V. Smith, 20 Ky. Law Rep. 1488 ; expense thereof " to be certified to
49 S. W. Rep. 456. a proper board, limits the power to
17 A contract for twenty-one years make only one year contracts. Tay-
was held not to be an abuse of dis- lor v. Lambertville (N. J. ), 10 Atl.
cretion on the part of the city coun- Rep. 809 ; Atlantic City W. W. Co.
454 OIL AND GAS.
tlie Supreme Court of Iiuliana said: " It may be true that
the contract creates an obligation for a breach of which an
action for damages will lie, but it does not create a right of
action for the unearned comi)ensation. The eariiing of each
year's compensation is essential to the existence of a debt. If
municipal corporations cannot contract for a long period of time
for such things as light or water, the result would be disas-
trous, for it is a matter of common knowledge that it requires a
large outlay to provide machinery and appliances for supplying
towns and cities with light and water, and that no one will
incur the necessary expense for such nuichinery and appliances
if only short periods^re allowed to be provided for l)y contract.
The courts cannot presume that the legislature meant to so cri}>
pie the municipalities of the State as to prevent them from
securing light upon reasonable terms, in the ordinary mode in
which such a thing as electric light or gas is obtained." ^^
§410. Extending term of contract.
The numicipality may extend the term of a contract, so long
as it keeps within the statutory period, and the gas company
Avill agi'ee to the extension ; and such extension is not void
on the ground tluit it is against public policy, where the city
is authorized by the statute to light its streets. Xo fraud is
implied in such a contract on the ground that the city cannot
decrease the number of lamps during the term.^° Where a
contract was for one year, entered into in 1856; and from time
to, time new contracts, not always in writing, were entered
into, but the company continued to furnish gas and the city
to pay for it according to the last written contract until a new
V. Reed. 50 N. J. L. 665; 15 Atl. Pa. St. 101; 34 Atl. Rep. .354:
Rep. 10. See Harlem Gaslight Co. Hartford v. Hartford, etc.. Co., 65
V. New York, 33 N. Y. 309, affirm- Conn. 324; 32 Atl. Rep. 925; Den-
ing 3 Robt. 100. ver v. Hubbard (Colo. App.), 68
18 Crowder v. Svillivan, 128 Ind. Pac. Rep. 993 ; Southwest, etc., Co.
486; 28 N. E. Rep. 94; 13 L. R. v. Joplin, 113 Fed. Rep. 817.
A. 647; Foland v. Frankton, 142 lo Parfit v. Furguson, 38 N. Y.
Ind. 546; 41 N. E. Rep. 1031. See Supp. 466; 3 N". Y. App. Div. 176:
Edison Electric, etc., Co. v. .Jacobs, 73 K Y. St. Rep. 621 ; affirmed 159
8 Kulp 120; Black v. Chester, 175 N. Y. Ill; 53 N. E. 707.
MUNICIPAL GAS COXTRACTS. 455
one Avas executed, until 1884, when the h^st one was ex-
ecuted, which expired October 1, 1885 ; it was held that the gas
furnished for one year after the last written contract expired
must be paid for according to the terms of such contract, and
that a statute forbidding the city to enter into a second contract
with a comj>any for gas to be furnished while a contract was in
force applied to a second contract with another company for gas
during the year 1886.^''
§411. Bids for lighting.
Unless the provisions of the municipality's charter requires
it, or some statute, the contract need not be let by advertising
for bids, and if bids are advertised for, it need not be let to
the lowest bidder, especially if the right to choose among the
bidders is reserved.'^ The letting of bids is a judicial act, and
no action lies for damages against a board of aldermen for their
failure or refusal to award to a company the contract for light-
ing a city."^ If a city formally reject a bid it cannot after-
wards accept it and bind the bidder."* Specifications in an
advertisements for bids, some of which are for proposals to light
a city as it is lighted at the time bids are asked, while others
call for light on any other plan, subject to the condition of
furnishing lights of 2,000 candle power, are sufficiently definite,
and need not be more explicit."* The mere fact that a bidder
has put in the lowest bid does not constitute an award of the
contract to him, where the statute provides that " if the lowest
bidder shall refuse or neglect, within five days after due notice
that the contract has been awarded, to execute the same, the
20 Taylor v. Lambertville (N. J.), Cincinnati, 28 Wkly. Law Bull. 29;
10 Atl. Rep. 809. 27 Wkly. L. Bull. 412; 11 Ohio
21 Harlem Gaslight Co. v. Mayor, Dec. 581. If the city endeavors
33 N. Y. 309, affirming 3 Robt. 100. to assign the certificate of deposit
22 East River Gaslight Co. v. accompanying the rejected bid. an
Donnelly, 25 Hun 614; Gaslight Co. injunction will lie to prevent it do-
V. Donnelly. 93 N. Y. 557; People ing so.
V. Gleason, 121 X. Y. 631 ; 25 N. E. 24 Detroit v. Hosmer, 79 Mich.
Rep. 4. 384; 44 N. W. Rep. 622.
23 Brush Electric Li^ht Co. v.
456
OIL AND GAS.
deposit made by him shall be forfeited to the city." -^ Com-
petitive bidding need not be asked under the charter of Greater
New York before entering into a contract for a supply of water
to tlie municipality.-""' If a contract provides for an increase
of the number of lights at a fixed price per light upon demand of
the city, it is not necessary to advertise for bids concerning the
extra lights."^
§412. How contract executed.
As a rule there is nothing peculiar about a lighting contract
with a municipalit^'Sliiferent from other contracts, aside from
the right to occupy the streets with gas mains or pipes. Usu-
ally, however, these contracts, evidenced by an ordinance adopted
by the common council or board of trustees, si^ccifically setting
forth the terms of the contract, requires an acceptance i:i
writing on the part of the gas or water company. But there
is nothing to prevent the ordinance being binding, although the
25 Erving v. New York City, 131
N. Y. 133; 29 N. E. Rep. 1101. af-
firming 16 N. Y. Supp. 612.
In Georgia a city can make a
cash contract for current supplies —
such as lamps and gasoline — for
lig'hting streets through its appro-
priate officers without a formal reso-
lution entered on its minutes. Con-
yers v. Kirk, 78 Ga. 480; 3 S. E.
Rep. 442.
26Gleason v. Dalton, 28 N. Y.
App. Div. 555; 51 N. Y. Supp.^337 ;
85 N. Y. St. Rep. 337 ; reversing 23
N. Y. Misc. 18; 50 N. Y. Supp. 90.
-~ Bronx Gas^ etc., Co. v. New
York, 17 N. Y. Misc. 433; 41 N. Y.
Supp. 358.
As to bidding contracts and the
failure to accept them, see Vincen-
nes V. Citizens' Gaslight Co., 132
Ind. 114; 31 N. E. Rep. 573; 16
L. R. A. 485; Searle v. Abraham,
73 la. 507; 35 N. W. Rep. 612.
An ordinance calling for bids
must be literally complied with by
the city, by inserting the requisite
number of notices in a newspaper
cahing for bids. Taylor v. Lam-
bertville (N. J.), 10 Atl. Rep. 809.
The constitution of California
provides that any person may use
the streets of a city, under proper
regulations as to damages and
charges, while there is no city plint
for supplying light. A statute pro-
vides that every franchise to erect
poles or wires for electric lighting
shall be advertised and sold to the
highest bidder. In view of these
provisions, it Avas held that the
statutory i-equirement of advertis-
ing and sale was unconstitutional
as applied to cities having no mu-
nicipal plant, for the highest bidder
at the sale would necessarily take
an exclusive franchise, while the
constitution required compet'ti'^n.
Pereria v. 'S^^allace, 129 Cal. 397 ; 62
Pac. Rep. 61.
MUNICIPAL GAS COXTKACTS. 457
company does not accept its terms in writing, if it in fact ac-
cepts its terms by acting nnder it ; and this is true even though
the ordinance provides for a written acceptance ; for in such an
instance the municipality waives a written acceptance by per-
mitting the company to go on and comply with the provisions of
the contract without first requiring a written acceptance. The
common council or board of trustees may confer authority upon
a municipal officer to execute the contract, where no positive
statute prevents it ; especially where it reserves the right to
approve it after it is formally signed. In such an instance as
the latter case the approval of the mayor is not necessary.'*
Under a statute that the board of street commissioners shall
superintend and provide for lighting street lamps, and repair
them, it has jwwer to make a contract with a company for gas
at a fixed rate, where it acts under the authority of the city
council, the charter providing that it shall cause to be executed
all orders of such council.""
§413. Liability of city for breach of contract — damages.
If a municipality fails to keep its contract with the company
contracting to supply it with gas, it is liable in damages for the
28 San Francisco Gas Co. v. San as the city may request water to
Francisco, 6 Cal. 190; Lake Charles, be furnished, the taking being op-
etc, Co. V. Lake Charles, 106 La. Lional with the city, for the pur-
65; 30 So. Rep. 289; Gosport v. pose of determining the amount of
Priuchard, 1.56 Ind. 400; 59 N. E. the city's indebtedness. Gold v. Peo-
Rep. 1058; Logansport v. Dikeman, ria. 65 111. App. 602.
116 Ind. 15; 17 N. E. Rep. 587. An agreement by a board of im-
If the mayor can veto the ordi- provement of a to\\Ti with a gas
nance, he must do so within the company that such board will not
time fixed by statute. Pennsylva- give its consent to any other com-
nia Globe Gas Co. v. Scranton. 97 pany to lay its pipes in the streets
Pa. St. 538. does not prevent other officers be-
29 Hartford v. Hartford Electric coming vested with the power to
Light Co., 65 Conn. 324; 32 Atl. determine whether leave shall be
Rep. 925. granted to other companies to lay
An ordinance providing for water pipes in the streets for exercisin-;
for a city to be furnished by a pri- the power. Parfitt v. Ferguson. 159
vate corporation at an anmuil ren- N. Y. Ill; 53 X. E. Rep. 707; af-
tal, payable quarterly for thirty firming 38 X. Y. Supp. 466; 3 X. Y.
years, is a contract for such times App. Div. 176.
458 OIL AND GAS.
breach. But the company cannot recover the price of gas not
furnished, although it was not its fault that the gas was not
furnished. Xor is it any defense for the municipality that it
is unable to pay for the gas it has contracted to take ; nor can
it annul tlie contract for that reason, much less at its own
will.^" For a failure to take gas the company recovers what
profits it would have made under the contract during the time
it was not allowed to furnish the gas, or, in other words, the
difference between the cost of furnishing it and its value ac-
cording to the terms of the contract.^^ But an ordinance may
be so worded that there is no contract to take any specific
quantity ; in which event the city will not be liable for a re-
fusal to take gas. Thus where an ordinance gave a gas com-
pany the right to occupy the streets with its pipes and mains,
providing that it should furnish " good, pure gas for all the
public lamps of the city, and light, extinguish and keep them
in good repair," at a fixed price per annum per lamp; and also
provided that the city council should '' have the right at all
times to regulate the times of lighting ; nd extinguishing the
street lamps, and of determining the quantity of gas to be con-
sumed by the city " ; it was held that there was no express
contract by the city, under the ordinance to take any quantity
of gas ; and that an action for damages could not be maintained
against the city for a failure to take it.^^ The action of a city
does not always amount to a rescission of the contract; as where
a city was to take gas, at a stated price per month, and it under-
,30 Davenport Gaslight and Coke the courts, and that no existing
Co. V. Davenport 13 la. 229; Gos- right should be prejudiced or af-
port V. Pritchard, 156 Ind. 4*0. fected, but the contract should, if
31 Davenport Gaslight and Coke valid, remain to the same extent as
Co. V. Davenport. 15 la. 6. though the company had not shut
In this case litigation having off the gas. It was held that this
arisen between the city and com- special agreement did not prevent
pany to determine the validity of the company from recovering of tlie
the contract, it was agreed be- city damages for the breach of the
tween them that the company should original contract, it having been
have the privilege of shutting off declared valid.
the gas from the city lamps until 32 Gaslight and Coke Co. v. New
the question of the validity of the Albany, 156 Ind. 406; 59 N. E. Rep.
contract should be determined by 176.
MUNICIPAL GAS CONTRACTS. 459
took to rescind the contract by a resolution of the council,
approved by the mayor, declaring- the contract to be at an end,
and notifying the company of its action. This was considered
not to be a rescission of the contract, for the gas company
had not assented to it ; but only a breach of it, for which the
company could recover from the city, in a proper action, ade-
quate damages.^^
§414. Assignment of lighting^ contract.
A distinction must be lx)rne in mind between a contract to
furnish light to a city, and the grant of a right to lay pipes in
its streets and maintain a lighting plant. The distinction may
often seem shadowy, but it is in this way that the many seem-
ingly conflicting cases can be reconciled. Usually lighting con-
tracts, either in direct or indirect terms, provide that they may
be assigned ; and this is not uncommon with the grant of privi-
leges to occupy the streets — a franchise as it is often called.
A contract or ordinance giving the right to the contractor or
grantee to assig-n or transfer the contract or gTant is valid.'*
So such contracts or grants seem to be assignable in some juris-
dictions without express words in relation thereto, or without a
statute expressly authorizing it.^^ It has been said that even
an exclusive franchise may be assigned.^*' And under a statute
authorizing a city to contract with a company for a supply of
water, it may agree that such company may assign the contract
or sell its plant, and that the assignee or purchaser shall sue-
33 Nebraska City v. Nebraska 117 Cal. 168; 48 Pac. Rep. 1075.
City, etc.. Co., 9 Neb. 339; 2 N. W. Tlie entire property, franchises and
Rep. 870. privileges cannot be transferred by
34 State V. Laclede Gasliorht Co., sale or lease for the life of the
102 Mo. 472; 14 S. W. Rep. 974; corporation; and the company thus
1.5 S. W. Rep. 383; 34 Am. and incorporated abandon its corporate
Eng. Corp. Cas. 49; Los Angeles v. duties. New Albany W. W. v.
Los Angeles Water Co.. 177 U. S. Lousiville. 122 Fed. Rep. 776.
558; 19 Sup. Ct. Rep. 77; Pitts- 36 Southern Illuminating Co., 5
burgh Carbon Co. v. Philadelphia Pa. Dist. 781. But see Bruns^vick
Co., 130 Pa. St. 438; 18 Atl. Rep. Gaslight Co. v. United, etc., Co.,
732. 85 Me. 532; 27 Atl. Rep. 525.
35 San Luis Water Co. v. Estrada,
460 OIL AND GAS.
ceed to all the rights of the assignor.^'^ Where the right of
assignment is given, or the assignment is acquiesced in by
the city, the assigiiee must comply with all the terms of the
original contract,'** or as modified in the written consent to the
assignment.^'' If the grant is made to the grantee, his admin-
istrator or assigns, his administrator may carry out its provi-
sions after such grantee has died.*"
§415. Rescission of contract — breach.
Under proi>er circumstances a municipality may rescind its
contract with a gas company to take gas from it for municipal
purposes. But it n^^ist be such a breach as goes to the very
substance of the contract.*^ And a suit for that purpose can
be brought by it.*^ But mere inadequacy of the supply of gas
is not a sufficient reason for cancelling the contract, unless a
proper demand for an increase of the supply has first been
made.*^ In the case of a contract for water, to be furnished
from certain named springs, mere inadequacy of the supply,
occasioned by the fact, that the springs did not furnish enough
water, was held to be no reason for a cancellation of the con-
tract.** If the quality of the gas is not such as the contract
calls for, that is not a sufficient reason for its cancellation,
37 American W. W. Co. v. Farm- 141 U. S. 67 ; 11 Sup. Ct. Rep. 892.
ers' Loan and Trust Co., 73 Fed. The power to make and sell gas
Rep. 956; 20 C. C. A. 133; 36 U. S. does not imply the power to sell
App. 563. or assign the privilege to make and
38 Freeport Borough v. Enterprise sell gas given by the company's
Natural Gas Co., 18 Pa. Super. Ct. charter. Chicago Gaslight, etc.,
73; Sandy Lake v. Sandy Lake, Co. v. People's, etc., Co., 121 111.
etc., Co., 16 Pa. Super. Ct. |34; 530; 13 N. E. Rep. 169.
Austin V. Bartholomew, 107 Fed. 4i Light, Heat, etc., Co. v. Jack-
Rep. 349; 46 C. C. A. 327. son, 73 Miss. 598; 19 So. Rep. 771.
39 /m re Pryor, 55 Kan. 724; 41 42 Light, Heat, etc., Co. v. Jack-
Pac. Rep. 958 ; 29 L. R. A. 398. son, supra.
What is not an assignment and 43 United States W. W. Co. v.
not a violation of a statute for- Du Bois, 176 Pa. St. 439; 38 W. N.
bidding it, see Marlborough Gas- C. 419; 35 Atl. Rep. 251.
light Co. V. Neal, 176 Mass. 217; ** Du Bois v. Du Bois City W. W.
44 N. E. Rep. 139. Co., 176 Pa. St. 430; 38 W. N. C.
40 Stein v. Bienville Water Sup- 417: 35 Atl. Rep. 248; 34 L. R.
ply Co., 34 Fed. Rep. 145; affirmed A. 92.
:^rUXICIPAL GAS COXTRACTS. 461
unless the company's attention lias been called to it, a demand
made for a compliance with the contract in that respect, and
a failure made or neglect to comply with the demand; and
especially is this true, where the quality of gas complained of
has been furnished for a period of years.*^ Where the gas
was to be paid at so much a light, burning from sunset to sun-
rise, to consume a certain number of feet per hour, an inability
on the part of the company to furnish the full amount agreed
upon, is not a sufficient reason for cancelling the contract,
where such inability arises from frost getting into the pipes
and clogging them so the gas cannot flow through them in suffi-
cient quantities/"
§416. Discontinuing use of gas.
A contract may be so drawn as to permit a change from the
use of gas to electricity ; and this is frequently done.*' So
it is not infrequent occurrence to draw it so as to authorize
the discontinuance of some of the lights and the establishment of
others. An instance of this kind is furnished by an Iowa case.
There the contract provided a city should take gas for lighting
the streets and its public buildings for ten years, but also
provided that the city might discontinue tlie use of gas lamps
in the business district after a certain time, less than ten
years, and change to electric light; and also that it might
discontinue the gas lamps in the other parts of the city tem-
porarily or permanently. It was held that the city had no right
to use other means to lia'ht the streets outside of the business
*5 Winfield v. Winfield Water Co., supply its customers with. Ham-
51 Kan. 70; 32 Pac. Rep. 663. ilton v. Hamilton Gaslight Co., 11
A private consumer cannot bring Ohio Dec. 513.
suit to cancel the city's contract ^^ In re Richmond Gas Co. [1893],
\vith the gas company, for there is 1 Q. B. 56; 62 L. J. Q. B. 172; 67
no privity of contract between him L. T. 554; 41 W. R. 41; 56 J. P.
and the company. Akron Water *^ Gaslight and Coke Co. v. Xew
Works Co. V. Brownless, 1 Ohio Dec. Albany, 139 Ind. 660; 39 X. E. Rep.
1; 10 Ohio C. C. 620. 462.
The company may buy gas to
462 OIL AND GAS.
district than gas ; and if it choose to light such streets it must
take the gas from the gas company.*^
§417. Chang-ing contract.
A municipality can no more change a lighting contract it has
with a company, than can an individual change a contract with
such company, unless the company agrees to such a change.
Usually such contracts provide for changes, and a proportionate
increase or decrease of the amount to be paid according to the
changes made. Where the guaranty in a contract was that the
100 lights provided for in such contract would furnish good and
sufficient light for a territory equal to that then lighted by gas,
it was held that it became inoperative when a portion of the
electricity necessary to supply the 100 lights was diverted from
the street lights to those in the city's public buildings.*^
§418. Gas furnished not covered by contract. — No contract.
If a gas company furnishes a city gas for lights outside of its
contract, then the city is liable for the amount thus supplied,
regardless of the contract. " A municipality," said Justice
Fields, " cannot avail itself of the property or lalx»r of a party,
and then screen itself from responsibility under the plea that
it never passed an ordinance on the subject. The law implies
a promise to pay in such cases." ^^ If a city receives gas and
uses it for lighting its streets, without any contract relative
thereto, it will be liable, in an action to recover therefor, for
the value of the gas supplied. ^^
48 Caijitol City Gaslight Co. v. 3 Robt. 100. In this case it was
Des Moines, 93 la. 547; 61 N.*^W. held that a contract fixing the price
Rep. 1066; 48 Am. and Eng. Corp. to be paid for a particular year
Gas. 138. is not in its nature an agreement
49 Brush Electric Light, etc., Co. running from year to year, and
V. Montgomery, 114 Ala. 433; 21 cannot fix the measure of compen-
So. Rep. 960. See Soiithw'est, etc., sation for subsequent use. See Con-
Co. V. Joplin, 113 Fed. Rep. 817. yers v. Kirk, 78 Ga. 480; 3 S. E.
50 San Francisco Gas Co. v. San Rep. 442.
Francisco, 9 Cal. 4.53. Mere delay to pay claim for extra
51 Harlem Gaslight Co. v. New lights furnished is not conclusive
York City, 33 N. Y. 309, affirming against the right of the company
MU2fICIPAL GAS CONTRACTS. 463
§419. Municipality extending limits after making contract.
Contracts usually provide for new territory added to that of
the municipality after it is entered into, or else they are
usually of sufficient elasticity to provide for such additional
territory. x\nd this is true even where no contract has been
made for lighting, but simply the right to occupy the streets with
pipes or mains and supply private consumers has been given.
In such instances the gas company may occupy the new terri-
tory without further contract or grant and collect for gas used
in the street lamps. ^' In the Missouri case was also involved
the element of estoppel, because of the fact that the gas com-
pany had occupied the added territory for a long series of
years. In jSTew York it is held that the consent of the city is
not confined to the streets existing at the time the consent is
given, unless that be the natural reading of the consent.^'* And
a gas company does not violate its contract with a municipality
or its franchise where it delivers gas to a consumer witliin the
city, Iniowing at the time the consumer will not use it until
he has transported it beyond tlie municipal limits."
to pay for them. Brush Electric triet Council [1897], 2 Ch. 121; 66
Light, etc., Co. V. Montgomery. 114 L. J. Ch. 581; reversing [1897] Ch.
Ala. 433; 21 So. Rep. 960; but if 652; 66 L. J. Ch. N. S. 286; 76 L.
both the city and the company T. Rep. 377.
thought the extra lights came un- s-i Lawrence v. Methuen, 166
der the general contract, then no Mass. 206; 44 N. E. Rep. 247.
pay for them up to the date that Lender a Pennsylvania statute giv-
that is discovered not to be true can ing an exclusive franchise to a gas
be claimed. Id. company, if the city limits be ex-
52 St. Louis Gaslight Co. v. St. tended another company will not be
Louis, 46 Mo. 121 ; Cincinnati, etc., given a franchise for the new terri-
Co. V. Avondale, 43 Ohio St. 257; 1 tory. In re Levis Water Co., 11
N. E. Rep. 527; Des Moines v. Des Pa. Ct. Rep. 178.
Moines W. VV. Co., 95 la. 348; 64 In this State a corporation was
N. W. Rep. 269; People v. Deehan, organized to supply a village with
153 N. Y. 528; 47 N. E. Rep. 787, water. It accepted the provisions
reversing 11 App. Div. 175; 42 N. of the Pennsylvania constitution and
Y. Supp. li)71. the Act of April 29, 1874. and its
5^ People V. Deehan, 153 X. Y. supplements and amendments after
528; 47 N. E. Rep. 787, reversing the repeal of the exclusive privi-
11 App. Div. 175; 42 N. Y. Supp. leges given to water companies by
1071. See the English case of Hud- Sec. 34. clause 3, of that Act, by
dersfield v. Ravensthorpe Urban Dis- the Act of June 2, 1887. It was
464
OIL AND GAS.
§420. Municipality receiving light under a void contract.
If the contract between a municipality and a lighting com-
pany is void because of a lack of power on the part of the
former to bind itself by the kind of a contract in which it at-
tempted to do so, yet that will not i^ermit the municipality
to wholly escape liability to reimburse the company for the
light actually furnished. Such an instance is where the mu-
nicipality has attempted to give the company the right to oc-
cupy its streets, to the exclusion of all other companies. In
such an instance the validity of the contract in the feature
alluded to is no defense in an action to recover for the light
furnished.^^ So where a citv agreed to exempt a gas company
from city taxation, and to pay it with money out of its sinking
fund, this was held to be no defense in an action for the price
agreed upon, for in that respect the city could bind itself, and
the ultra vires provisions did not invalidate the entire contract,^"
The fact that the contract was let without due advertisement
for bids is also no defense in an action to collect rents. *"'' If
the ordinance be void under which the gas or water is furnished,
the city cannot arbitrarily pass an ordinance fixing the rates at
anv rate it chooses.^^
held that it could not obtain an
exclusive right or privilege to sup-
ply water to the village. Centre
Hall Water Co. v. Centre Hall, 186
Pa. St. 74; 40 Atl. Rep. 153.
55 Illnois Trust, etc.. Bank v.
Arkansas City, 76 Fed. Rep. 271; 22
,C. C. A. 171; 34 L. R. A. 18; Gos-
port V. Pritchard, 156 Ind. 400; 59
N. E. Rep. 1134; Higgins-^v. San
Diego. 118 Cal. 524; 45 Pac. Rep.
824; 50 Pac. Rep. 670; Sandy Lake
V. Sandy Lake, etc.. Gas Co., 16
Pa. Super. Ct. 234.
•'*' Nebraska City v. Nebraska
City, etc., Co., 9 Neb. 339; 2 N. W.
Rep. 870.
*56 Nicholasville Water Co. v.
Nicholasville (Ky.). 18 Ky. L. Rep.
592; 36 S. W. Rep. 549; 38 S. W.
Rep. 430.
57 Des Moines v. Des Moines W.
W. Co., 95 la. 348; 64 N. W. Rep.
269.
Where the ordinance was void,
the price fixed in it was held not
to control, but the company could
recover what the gas was worth,
not being limited by the amount
named in the ordinance. Elmira
Gaslight Co. v. Elmira, 2 Alb. L.
Jr. 392. But the fact that that
part of the grant giving an exclu-
sive grant is void, does not disturb
the price fixed upon in the con-
tract. East St. Louis v. East St.
Louis Gaslight and Coke Co., 98
111. 415.
MU^^ICIPAL GAS CONTRACTS. 465
§421. Contracts void for uncertainty.
Occasionally contracts for municipal lighting are so nneertain
as to be void. An illustration of this kind arose in Indiana.
A city agreed with a gas company to take gas for a i>eriod of
twenty-three years, and in the contract it was provided that if,
at any time during the period of the contract, the city deter-
mined to substitute electric for gas lights the gas company
should " make the substitution of such electric lights instead of
as many street lamps as may be agreed upon between the city
and the company, the price at which said electric lights shall be
furnished to be fixed by an equitable agreement between the
city and the company." It was held that this contract was so
uncertain that it was void, no agreement ever having been made
as to what or how many gas lamps were to be removed or what
should be the price of the electric lights; and so the court re-
fused to enjoin the city from procuring electric lights by com-
petitive bids.^* "Wliere the contract Avas to be paid, after a
specified time, the " average price paid by other cities " hav-
ing efficient works, and in case of a disagreement the amount
should be settled by arbitration, it was held to be so imprac-
ticable, unreasonable, and indefinite that it could not be en-
forced. ^^
§422. Moonlight schedule.
It is a very common part of municipality lighting contracts
that no charge shall be made for light on nights when the moon
furnishes a certain amount of light ; and usually they give the
municipality the power to furnish a schedule of the nights, or
parts of nights, upon which gas is not to be furnished. These
arrangements generally prevail more frequently in the smaller
than in the larger cities. Where such a schedule Avas in force,
In Grand Island Gas Co. v. West, Albany, 139 Ind. 600; .39 N. E. Rep.
28 Neb. 852; 45 N. W. Rep. 242, it 462.
was held that the amount could not 59 Des Moines v. Des Moines W.
exceed the price named in the void W. Co.. 95 la. 348; 64 N". W.
ordinance. Rep. 269.
58 Gaslight and Coke Co. v. New
466 OIL AND GAS.
and it was also provided in a proviso that the city should not be
liable for rent for any lamps for any night when lamps were
not lighted, it was held that full force and effect must be given
to the entire contract, so as to include the proviso, and that the
city was not liable for the rent of lamps on moonlight nights,
when the lamps were not lighted.*"'
§423. The price to be paid.
Elsewhere has been discussed the price to be paid for gas as
fixed by ordinance ; "^ and it is not necessary to again refer to
the cases there cited. The municipality has the right to agree
to the price to be paid by it for gas ; and it is not a sufficient
charge of fraud to annul such contract merely to allege that
the price agreed upon was higher than private consumers paid.
" The price to be paid for gas was within the discretion of the
board of trustees of the town," said the Supreme Court of In-
diana. " The only allegation concerning fraud is that the
price for which appellee is about to contract is three times
what is paid by private consumers ; and for that reason the
projxjsed contract is fraudulent. There is no allegation that
the gas plant may not have to be enlarged to furnish the gas
provided for in the contract ; or that the plant is of sufficient
capacity to furnish gas to light the town, or that any person or
company will furnish the gas for less per year or per tliousand
feet, or that the gas to be furnished to the town under the pro-
posed contract, is not the same quality as that furnished to
private consumers, or that the board of town trustees or any
one or more of them were about to enter into this contract from
any improper or corrupt motives or influence." ^^
§424. Free light. >'
Often the grant of a company to occupy the streets contains
nn agreement that the grantor shall have a certain amount of
light free of charge, in consideration of the grant. Such
CO Winfield v. Winfield Gas Co., 02 Seward v. Liberty. 142 Ind.
37 Kan. 24 ; 14 Pac. Rep. 499. 551 ; 42 N. E. Rep. 39.
61 See Sec.
MUNICIPAL GAS COXTKACTS.
467
agreements are valid, and binding even upon the assignee ; and
this is true even though the original resolution was not properly
feigned by the officers of the municipality, if the lighting com-
pany has built its works, and occupied the streets under it ;
and especially so is this true if it has furnished free light for
several years.*^^ But, in the same State, where a water com-
pany that had the right, under a statute, to enter upon the
streets, it was held by another court that a municipal permit
was luireasonable if granted on the condition that the company
should supply the municipality with water and twenty-five water
plugs free of charge for all time.®* ^Vbere the contract with a
natural gas company was to furnish the village gas free of
charge " for all street lamps," it was held that the kind of
lamps intended must be determined by the connnon use of the
word where natural gas was used for street lighting; and as
at the time the contract was executed open lights only were
used, it was further held that the gas company could not re-
quire the village to use enclosed lights in order to reduce the
amount of gas used."'' In the charter of a gas corporation in-
corporated for a certain city was a clause requiring the com-
pany to furnish, gas sufficient to supply five burners for the
public streets for the first year, ten for the second, and so on,
and were to complete all necessary works for the manufacture
of gas by June 1, 1861. The company sued the city to re-
cover the value of gas furnished it between the years 1864
and 1866, and it was held that the charter did not intend that
the gas company should receive a compensation for the gas it
was required to supply, the law did not raise an implied prom-
ise to pay for it, and that after the time appointed for the
completion of the works the company should be allowed a
reasonable time for the laying of gas pipes in order to supply
63 Sandy Lake v. Sandy Lake, 65 Saltsburg Gas Co. v. Saltsburg,
etc.. Gas Co., 16 Pa. Super. Ct. 234. 138 Pa. St. 2.50; 27 W. X. C. 120;
64 Forty Fort v. Forty Fort Water 20 Atl. Rep. 844; 10 L. R. A. 193.
Co., 9 Kiilp (Pa.) 241.
468 OIL AND GAS.
the city, and the first year named in the contract should begin
after such reasonable time had elapsed.*^"
§425. Exemption from taxation in fixing price of gas.
While a municipality has no power to exempt a gas company
from taxation, yet it may agree to pay it so much per lamp, and
such an additional sum per lamp as will be equal to the taxes
paid by the company. Such a method of determining the price
to be paid is not an exemption from taxation. '^^
§426. Cost of light, out of what fund paid.
It is often a serious question with a municipality heavily in
debt whether such debts or the expense of lighting shall be first
paid, or whether the money intended for the light can be seized
for prior debts. An expense for light or water is regarded as a
" current expense," payable out of " current revenues." " It
is tlie items of expense essential to the maintenance of cor-
porate existence, such as light, water, labor and the like, that
constitute current expenses payable out of current revenues.
The authorities agree that current revenues may be applied to
such purposes even though the effect be to postpone judgment
creditors." ^^
§427. Appropriation for light, when necessary to validity of
contract.
In some States an appropriation must first be made before a
contract for lighting can be entered into by a municipality.
66 Virginia City Gas Co. v. Vir- 1; 49 Am. Rep. 416; Coy v.
ginia City, 3 Nev. 320. City Council, 17 la. 1; Coffin v.
If two companies consolidate, one Davenport, 26 la. 515; Scott v. Da-
of which was to furnish a cerl^in venport, 34 la. 208; Seward v. Lib-
amount of free gas, the consoli- erty, 142 Ind. 551 ; 42 N. E. Rep.
dated company will be bound also 39; Foland v. ^rankton, 142 Ind.
to furnish it. Charity Hospital v. 546; 41 N. E. Rep. 1031; Fowler v.
New Orleans Gaslight Co., 40 La. F. C. Austin Mfg. Co., 5 Ind. App.
Ann. 382 ; 4 So. Rep. 433. 489 ; 32 N. E. Rep. 596 ; Laycock v.
"■^ Carterville Improvement, etc., Baton Rouge, 35 La. Ann. 475. See
Co. V. Carterville, 89 Ga. 683; 16 Atlantic City W. W. Co. v. Reed,
S. E. Rep. 25. 50 N. J. L. 665; 15 Atl. Rep. 10.
<5s Valparaiso v. Gardner, 97 Ind.
MUNICIPAL GAS CONTRACTS. 469
Whenever this is the case, a contract for lighting before snch
appropriation is made is void. This was held to be the case
where the following statute was in force : " No executive de-
partment, officers or employee thereof shall have power to bind
such city by any contract or agreement, or in any way, to any
extent beyond the amount of money at the time already appro-
priated by ordinance for the purpose of such department, and
all contracts and agreements, express or implied, and all obliga-
tions of any and every sort beyond such existing appropriations,
are declared to be absolutely void." The contract declared void
under this statute was one for street lights for five years, at a
certain price per light per year, payable monthly.'''* Similar
results have been arrived. at in other States."^"
§428. Exhaustion of appropriation as a defense.
In a suit to recover for gas furnished, it is no defense in the
city to set up that the appropriation for that purpose had been
exhausted, and that the debt had been incurred in excess of the
amount appropriated,"^
§429. Tax to pay for gas or to support gas plant.
The furnishing of light for the streets and the public places
of a city or town is such a work of public character as will
69 Indianapolis v. Wann, 144 Iiid. W. Co. v. Reed, 50 N. J. L. 663 ;
175; 42 N. E. Rep. 901; Atlantic 15 Atl. Rep. 10; Pullman v. Mayor,
City W. W. Co. V. Reed, 50 N. J. 49 Barb. 57. Contra, Leadville,
L. 663; 15 Atl. Rep. 10. etc., Co. v. Leadville, 9 Colo. App.
70 Kiichli v. Minnesota, etc., Co., 400; 49 Pac. Rep. 268.
58 Minn. 418; 59 N. W. Rep. 1088; 7i New York Mutual Gaslight Co.
Garrison v. Chicago, 7 Biss. 480 ; v. New York City. 49 How. Pr. 227.
Superior v. Norton, 63 Fed. Rep. As to necessity for an appropria-
357; Bladen v. Philadelphia, 60 Pa. tion under a statute, see Atlantic
St. 464: Philadelphia v. Flanigen, City W. W. Co. v. Reed, 50 N. J.
47 Pa. St. 21; Jonas v. Cincinnati, L. 663; 15 Atl. Rep. 10; Taylor v.
18 Ohio 318; Wallas v. San Jose, Lambertville (N. J.). 10 Atl. Rep.
lJ Cal. 180; San Francisco Gas Co. 809, and Kiichli v. Minnesota Brush
V. Brickwedel, 62 Cal. 641; Niles W. Light Co.. 58 Minn. 418; 59 N. W.
W. Co. V. Niles. 59 Mich. 311; 26 Rep. 1088.
N. W. Rep. 525; Atlantic City W.
470 OIL AND GAS.
authorize the levying of a tax for that piii'i^se/" But gas or
water rents established by a municipality where it furnishes
the gas or water are not taxes which may be collected by the tax
collector, as other taxes arc eoUected."'' Power to levy tuxes
for gas or water purposes is subject to the limitation of a gen-
eral statute providing that the aggregate of a numicipal tax
shall not exceed a certain fixed limit.'* Usually a city may
pay out of its general fuiul any deficiency for gas furnished,
after it has exliausted its s}3ecial levy for that pur}x)sc."^
§430. Assessing cost of public lighting upon abutting property
— cost of municipal plant.
Not infrequently tl^e cost of })ublic. lighting is assessed upon
private property abutting ujwn the territory benefited, just as
the cost of improving the roadway of a street is assessed,"" And
so the cost of building a gas or water plant is often assessed
upon the ]>rivate property abutting uix)n the gas or water mains
or plant ; and this is considered a perfectly legitimate method
of providing both for the cost of the light or of the construction
of the plant. Where an Act of Congress authorized the com-
missioners of the District of Columbia to lay water mains
whenever and wherever they deemed them necessary for public
safety, comfort or health, and assess the cost upon the abutting
propert}', notice to the property OA\mer was deemed not neces-
sary to support the water main tax." So where a statute
empowered a city to construct and establish gas works, or to
T 2 Bronx Gas, etc., Co. v. New will not justify its conduct in re-
work City, 17 N. Y. Misc. 433; 41 fusing to le^•y the legal amount for
N. Y. Supp. 358 ; Fellows v. Wal- such purposes for a subsequent year,
ker. '39 Fed. Rep. 651 (a case of State v. Kearney, 49 Neb. 337; 70
natural gas). * N. W. Rep. 255; 49 Neb. 325; 68
T"> Dixon V. Entriken, 6 Pa. Dist. N. W. Rep. 533.,
: Rip. 447 ; 19 Pa. Co. Ct. 414. 75 Creston W. W. Co. v. Creston,
-1 People V. Lake Erie, etc., R. R. 101 la. 687; 70 N. W. Rep. 739.
Co.. 167 111. 283; 47 N. E. Rep. 'o People v. Lake Erie, etc., Co.,
51 S. 167 111. 283; 47 N. E. Rep. 518.
The fact that a city had levied 77 Parsons v. District of Colum-
for several years a tax in excess bia, 170 U. S. 45; 18 Sup. Ct. Rep.
of the maximum limit to pay for 521.
gas furnished it under a contract
471
MCNICIPAL CAS CONTRACTS.
Te^ilate a private establishment, aud to provide by ordinance
Ztar of the expense of lighting the street should be pa.d
Cthe owners of lots fronting thereon, and in what manner
tihe eost should be assessed and collected; and aceordmg to
the cost sno. .-,■ ,,f . ^eitain number of lot owners
another section, uiK.n petition ot a cenaiu ,..,,■„<, ^..-ij
within a given distance fronting on a street lor lighting such
t ee" acfording to the city's general plan ot -l"----"*
ueh city might cause such part of the street to be lighted the
e: t of whidi should be estimated according *« the long ho
the street ".>>-'- ----1^ 1 t^^ o^inatt lot
trZ r^ir it-antV t,. ek^ut for the s.eet
fiSires, such as pipes and lampposts, the assessment being
Lordi;g to the running foot and not according to the assessed
value/**
§431. Mandamus to compel auditing or payment of bills.
' If a city has a board of audit or of supervisors charged by
h„v with the duty of auditing bills, mandanms lies to coraf^
uch board to pass upon a bill for gas furnishc , but the court
does not neeessarily require the board to allow the account. Tn
allowing or rejecting the bill it has a discretion either to a low
OT reiert it, and the court cannot in this respect control their
action, though it may compel it to pass upon the bill. Hut
where an auditing board is not provided for, the company may
sue direct for the amount due, and is not compelled to resort
to a writ of mandamus.^"
§432. Action to recover for gas supplied.
Under a contract or ordinance to supply gas at a certain price,
the -as company may recover from a city for all the gas it has
furnished unde; the contract, in an action based on the contract
or ordinance.- In such an action, hills for gas furnished dur-
.8 Nelson v. La Porte, 33 Ind. ^^ ^^^^^^^ ^^ ^''''\l''- ''' '"'•
400; 59 N. E. Rep. 10o8.
,;t> 1 V Snn Francisco 11 si London Gaslight Co. v. Vestry
79 People V. oan i-rancibeu, xj. „ ^ t> /xt q ^ PTi- 9
Cal. 42 See Richmond County of Chelsea, 8 C. B. (N. S.) 215,
Gaslight Co. V. Middletown, 59 N. Gas J. 292.
Y. 228; 1 Hun 433.
472 OIL AND GAS.
ing the months immediately preceding the months sued for
under the same contract, and approved by the city council, were
held admissible to show the number of lamps lighted, and that
the city recognized the validity of the contract under which it
was furnished, and its liability to pay for it.^" It is no defense
that the gas works have become a nuisance, especially where no
steps to have them declared a nuisance have been taken ; and the
city must pay for the gas it has received.*^ The company has a
right to sue for the gas furnished, and is not comj^elled to re-
sort to a writ of mandamus to compel the city to carry out the
contract; even though the gas was to be paid with by the issu-
ance of city warrants that did not fall due for several months
after they were to be issued.^*
§433. Interest.
A gas company is entitled to recover interest on its bills past
due ; such bills coming within the general interest law^s of the
State.^'
§434. Lamps — posts.
A\^iere the word " lamps " is used in a contract to light a
city with natural gas, the contract contemplates such lamps as
are commonly used in the natural gas region ; and wdiere only
open lamps were used in a region where the gas was to be fur-
nished, it was held that the city could not be compelled to
use closed lamps, in order to lessen the consumption of gas.^®
8- Davenport Gaslight Co. v. Da- In a .suit for the price of gas
venport, 13 la. 229. furnished under a contract, the rec-
83 Davenport Gaslight Co. v. Da- ord of the city engineer and regis-
venport, supra. ter of the gas inspector was held
1 >*■* Gosport V. Pritchard, 156 Ind. to be competent evidence. St. Loui3
400; 59 N. E. Rep. 10.58. Gaslight Co. v. St. Louis, 86 Mo.
If the proper municipal author- 49.5.
ity has passed upon and allowed the 85 Xeosho City Water Co. v. Ne-
bill. its action is final so far as the osho. U6 Mo. 498; .S8 S. W. Rep. 89.
city is concerned. Metropolitan Gas- sb Saltsburg Gas Co. v. Saltsburg,
light Co. v. Mayor, 4 N. Y. Weekly 1.38 Pa. St. 250; 20 Atl. Rep. 844;
Dio-. 82. 10 L. R. A. 193.
MUNICIPAL GAS COXTRACTS. 473
The word " public posts " used in a contract for a supply of
gas to the city, includes jx)sts used and erected for the benefit
of the public, as well as those actually owned by the city.**^
Posts put up by the company to light the streets belong to it ;
and it may maintain an action of trespass for an injury to
them. But if the injury, in case it is charged to have occurred
by negligence, is occasioned by the bad condition of the street,
without fault of the defendant, then the defendant is not liable ;
for the relation between the city and the company is such that
whatever would have been a good defense against the city,
in case the post belonged to it, would be a good defense against
the gas company.^'^ Where it would require the laying of one
mile of mains to put up six lain]^>-posts the city was demanding
the court refused to compel the company to set them up, al-
though a statute required the company to maintain lamp-posts
" in such places or positions, as shall be required from time to
time by the local board for the purpose of lighting in a proper
and effectual manner any street." ^^ Upon the expiration of
its contract with a city to furnish it light, the gas company
must remove its lamp-posts from the streets — the right con-
ferred on it, even by its charter, to lay mains in the streets
not implying that erecting lamp-posts on the streets and re-
taining them there indefinitely if it ceases to furnish gas and
its contract with the city has expired.®"
§435. United States revenue tax.
In Missouri it was held that a gas company was authorized to
charge against a city consuming gas the tax imposed by the
United States upon illuminating gas ; ®^ but where a company
had contracted to furnish a municipality with gas " free of
87 Davenport Gaslight and Coke oo New Orleans Gaslight Co. v.
Co. V. Davenport. 13 la. 229. Hart, 40 La. Ann. 474; 4 So. Rep.
88 Roche V. Milwaukee Gaslight 215.
Co., 5 Wis. 55. See Crystal Palace si St. Louis Gaslight Co. v. St.
Gas Co. V. Idris, 82 L. T. 200; 64 Louis. 86 Mo. 495, affirming 11 Mo.
J. P. 452. App. 55.
89 Worksop V. Worksop Gas Co.,
22 Gas. J. 96.
474 OIL AND GAS.
charge," it was held that it could not recover the amount of the
tax imposed under the Internal Revenue Act; even though the
Act authorized the company to add such tax to the contract price
of gas which had heen previously contracted.''"
§436. Waiver as to quality of gas or light.
There is no doubt that a city may waive its right to defend,
when sued for gas supplied it, on the ground that the quality of
the gas was not up to contract, the same as it may waive
its right to defend when sued for water furnished it, on the
ground that the water was impure. Thus a usage of the water
for a year without objection was held to be a Avaiver of the
right to defend on the ground that it was impure.**^ And even
though the city does*object, yet accepts the water furnished
as a substantial compliance with the contract, under the honest
belief that such acceptance is for the best interest of the city, it
cannot set up as a defense, when sued for the price, that the
water was impure.^*
§437. Extending mains, failure to pay for light.
It is as much the duty of a city or a town to promptly pay the
gas company's bills for light as it is that of a private citizen;
and if it does not tlie company is not compelled to extend its
mains and erect new gas posts, as it had agreed to do, upon
demand of the municipal authorities, to supply gas for lights not
then in use.^^
§438. Receiver bound by contract.
A receiver of a company is bound by such company's contract
with the municipality for gas, so long as he continues to fur-
92 Pittsburg Gas Co. v. PittsbiKg, mar, 140 Mo. 14.5 ; 39 S. W. Rep.
101 U. S. 219. 768.
It has been held that the express 94 Creston W. W. Co. v. Creston,
companies could add to its charge 101 la. (587; 70 N. W. Rep. 739,
for transportation the amount re- citing Philadelphia v. Hays, 93 Pa.
quired to be paid in stamps by the St. 72, and Winfield V7ater Co. v.
Internal Revenue Act of 1898 upon Wintield, ,51 Kan. 70; 32 Pac. Rep.
each article. 663.
93 Lamar Water, etc., Co. v. La- "s Pensacola Gas Co. v. Pensa-
cola, 33 Fla. 322; 14 So. Rep. 826.
MUNICIPAL GAS CONTRACTS. 475
nish it ; and he is also bound by the rates fixed in it to be charged
private consumers.'**'
§439. Municipal officer interested in contract.
Statutes frequently, if not universally,, forbid municipal offi-
cers to have any interest in municipal contracts; and if they
have, generally declare such contracts void, either in direct
terms or by construction. In a case in j^ebraska where the
secretary and treasurer of a corporation was also a member of
the city council, the contract of the corporation to light the
streets of the city was held void ; and it was also held that any
taxpayer of the city could maintain a suit to have it cancelled ;
but for light actually furnished under it, the city must pay what
it was actually worth, not to exceed the contract price.^^ And
the same result was reached where a majority of the members
of the city council were stockliolders in a water company sup-
plying the city with water."® The rule in some instances, how-
ever, has been relaxed. Thus where a company received its
charter direct from the legislature, compelling it to furnish
liffht to all customers of a certain citv who desired it, it was
held that the city must pay for light received under a contract
with the company, although the mayor of the city was presi-
dent of and a stockholder in it. The charter made all contracts
with the city void in which a city officer had an interest ; but
the court considered that this particular contract was not void
for the reason that it was one created by the charter and not by
the parties to it."" "Where a statute forbade a city officer to
have an interest in a contract of the city, the taking of stock
96 Manhattan Trust Co. v. Day- 22 C. C. A. 618; 76 Fed. Rep. 921;
ton, 59 Fed. Rep. 327; 16 U. S. 36 L. R. A. 228.
App. 588 ; Manhattan Trust Co. v. s" Grand Island Gas Co. v. West,
Dayton Natural Gas Co., 55 Fed. 28 ISeb. 852; 45 N. W. Rep. 242.
Rep. 181. ysMilford v. Milford Water Co.,
A suit by a receiver appointed 124 Pa. 610; 17 Atl. Rep. 185.
by a Federal court for rentals due so Capital Gas Co. v. Young, 109
for hydrants, can be brought in Cal. 140; 41 Pac. Rep. 869; 29 L.
the United States courts. Keihl v. R. A. 463.
South Bend, 44 U. S. App. 6S7;
476 OIL AND GAS.
by its mayor after the contract had been let, in a company that
succeeded the company obtaining such contract, and before such
succession took place, did not render the contract ■void.^''" But
the holding of a single share of stock by a city councilman in
a company applying foi' a contract is a violation of such a
statute.'"
100 state V. Great Falls, 19 Mont. loi Foster v. Cape May, 60 N. J.
518 j 49 Pac. Rep. 15. L. 78; 36 Atl. Rep. 1089.
CHAPTER XXll.
MONOPOLISTIC GRANTS AND CONTRACTS.
§440. Division of subject.
§441. Legislature may authorize monopolistic grants.
§442. Same continued. — Pennsylvania.
§443. Same continued.
§444. Statute authorizing exclusive grant.
§445. A grant to use of streets to exclusion of all others must rest on
statutory power.
§446. Grant of exclusive franchise strictly construed.
§447. Legislature cannot revoke monopolistic clause of company's charter.
§448. Municipality agreeing not to compete with gas company.
§449. Legislature may not authorize monopolistic grants.
§450. Estoppel to contest validity of monopolistic grant, ratification.
§451. A federal question.
§452. Monopolistic clause does not avoid whole contract.
§45.3. Enjoining passage of ordinance.
§454. Forfeiture of exclusive franchise.
§455. Exclusive franchise for artificial gas does not exclude natural gas.
§456. Extension of time for completion of work.— Additional require-
ments.
§457. Gas works built under void grant or franchise.
§458. Municipality's right to purchase existing works is optional.
§459. Unlawful combinations between gas companies.
§460. Granting privilege to use streets does not require a general ordi-
nance. — General ordinance regulating streets.
§461. Contracts for light, length of term.
§462. Dating contract ahead.
§440. Division of subject.
The subject of this chapter is divisible into two branches:
one, concerning the grant of the nse of the streets of a mnnici-
pality to a gas company wherein it is agreed that it shall have
possession of the streets to the exclusion of ^all other gas or
lighting companies, either in perpetuity or for a designated
number of years; second, concerning contracts with gas com-
panies for lighting either in perpetuity, or for a long term of
477
478 OIL AND GAS.
years. This description must constantly be "borne in mind, or
confusion will arise in examining the cases. Electric lighting
cases, water company cases and street railway cases are, of
course, cases analogous to those of gas, and can properly be
used in this discussion. In discussing the question, it must
be borne in mind that in some States constitutional provisions '
forbid the granting of exclusive privileges to individuals and
corporations ; and where such provisions do not exist, some of
the cases are made to turn upon the fact, that the legislature
has not empowered the municipality to grant such exclusive
privileges.*^
§441. Legislature may authorize monopolistic grants.
ife.
The cases are not uniform upon the power of the legislature to
make or authorize the making of monopolistic grants or con-
tracts. One of the leading cases arose in Wisconsin. In that
State the legislature granted to a company the exclusive privi-
lege to manufacture and supply gas to the city of Milwaukee
and its inhabitants; and this Act was upheld, the court saying:
" It is claimed, or rather suggested, that even the legislature
could not confer this exclusive right upon the defendant to
manufacture and sell gas in the city of Milwaukee. But we
are not aware of any constitutional principle which is violated
by the legislature granting such an exclusive franchise. It is
true that it may create a monopoly, prevent anything like a
free and healthy competition in the supply of gas to consum-
ers, and thus operate to the detriment of the public. But sup-
pose this is all conceded ; upon what ground can the court say
such legislation is unconstitutional ? Of course, the whole mat-
1 Beinville Water Supply Co. v. railways if it is a narrow street.
Mobile, 186 U. S. 212; 22 Sup. Ct. and usually if it is a wade one. A
Rep. 820, affirming 175 U. S. 109; monopolistic grant of that character
20 Sup. Ct. Rep. 40. is not meant by the use of the term
*i There are some things that by as used in this discussion. In-
thoir construction are necessarily dianapolis, etc., R. R. Co. v. Citi-
exclusive. Thus a grant to a street zens' Street R. R. Co., 127 Ind. 369;
railway to occupy a certain street 24 N. E. Rep. 1054; 8 L. R. A.
necessarily excludes all other street 539 ; 26 N. E. Rep. 893.
MOXOPOLISTIC GRAXTS AND COXTKACTS. 479
ter, under onr constitution, is under the control of the legis-
lature, which can take from the defendant this exclusive privi-
lege whenever it sees-fit to do so. The public concern, in having
some competition in the supply of gas, is bj no means without a
remedy. It can appeal to the legislature to withdraw this
exclusive right which it has conferred upon the defendant. And
'it is but fair to assume, that whenever tlie monopoly becomes
oppressive, the legislature will repeal the special privilege it
has granted. At all events, it is sufficient to say that the rem-
edy is with the legislature, which has ample authority to do
what may be for the best interests of the citizens of Milwau-
kee." ■ This decision is made to rest upon the theory that the
legislature can revoke that part of the company's charter giving
it an exclusive franchise ; but this claim has not been upheld by
the Supreme Court of the United States, as we shall see in
the next section. The case can, therefore, be regarded as one
of doubtful authority. In Tennessee, whose constitution for-
bids the granting of " perpetuities and monopolies," a grant of
the exclusive use of the streets of a city is held not to be a
monopoly, and so not forbidden.^ So in Xew Jersey, without
any special statute to that effect, a city's contract with a com-
pany to supply it with water so long as the company com-
plied with the obligations of the contract, was upheld.* A
case arose in Connecticut somewhat at variance with the case
already cited at length from that State. The city of Bridge-
port entered into an agi-eement with a water works company,
giving it the exclusive right to lay pipes in its streets so long as
it furnished a full supply of fresh water. The assignee of
this agreement expended a large sum of money in putting in
water works ; and this assignee was authorized by a special Act
of the legislature to acquire all the right of the assignor, '^ in-
cluding the right to the sole and exclusive use of the public
streets," etc., " for the purpose of laying pipes therein to con-
2 state V. Milwaukee Gaslight Co., Co. v. Hankey, 31 Md. 346, as to a
29 Wis. 454; 9 Am. Rep. 598. wharf.
3 Memphis v. Memphis Water Co., * Atlantic City W. W. Co. v. At-
5 Heisk. 495. See Broadway, etc., lantic City, 48 K J. L. 378; 6 Atl.
Bep. 24.
480 OIL AND GAS.
duct water into and about said city." Thirty years afterward
the legislature gave another company the right to lay pipes and
supply water to the same city ; and it was held, conceding that
the city had no power in the first place to grant an exclusive
right, that the legislature having suhsecpiently recognized this
claim of power and authorized the assignee to acquire, by as-
signment, such exclusive right, and the assignee having ac-
cepted the provisions of the statute and performed what was
required of it, there was a contract existing between it and the
city which the legislature could not revoke or impair so long
as the assignee supplied the city with abundance of pure water ;
and that the second grant was an impairment of that contract.
It was so held, although a provision in the first charter reserved
to the legislature the ']X)wer to recall the franchise at its pleas-
ure, which, it was said, did not authorize the legislature to
impair the contract which the city had entered into for the
exclusive use of its streets so long as it should supply the city
with w^ater.^ Some other cases uphold the power of the legis-
lature to create gas or water companies, and endow them with
monopolistic franchises, or to authorize municipalities to make
such grants."
5 Citizens' Water Co. v. Bridge- 85 Fed. Rep. 359 ; 52 U. S. App.
port, etc., Co., 55 Conn. 1; 10 Atl. 512; 29 C. C. A. 568; Newport v.
Rep.. 170. Newport Light Co., 84 Ky. 166;
6 Crescent City Gaslight Co. v. Louisville v. Wible, 84 Ky. 290 ; 1
New Orleans Gaslight Co., 27 La. S. W. Rep. 605; Des Moines Gas
Ann. 138. (In this Louisiana case Co. v. Des Moines, 44 la. 505;
it was held that the company en- Montgomery Gas Co. v. Montgom-
titled to the monopoly might en- ery, 87 Ala. 245; 6 So. Rep. 113;
join another company denying its 4 L. R. A. 616; Des Moines St. Ry.
right, on the ground that it was a Co. v. Des Moines. 73 la. 513; 33
slander on its title.) St. Louis v. N. W. Rep. 610; 35 N. W. Rep.
Gaslight Co., 5 Mo. App. 484f Jer- 002; Jackson County Horse Ry. Co.
sey City Gas Co. v. Dwight, 29 N. v. Interstate Rapid Transit R. R.
J. Eq. 242; Des Moines St. R. R. Co., 24 Fed. Rep. 306; Parkersburg
Co. V. Des Moines, etc., Co., 73 la. Gas Co. v. Parkersburg, 30 W. Va.
513; 33 N. W. Rep. 610; 35 N. W. 435; 4 S. E. Rep. 650; Centre Hall
602. (In this Iowa case there was Water Co. v. Centre Hall, 186 Pa.
no statute specifically authorizing St. 74; 40 Atl. Rep. 153; Lancaster
the company to make the contract.) Gas and Fuel Co. v. Lancaster Gas
Memphis v. Memphis Water Co., 5 Co.. 17 Pa. Co. Ct. Rep. 453; In re
Heisk. 495; Bartholomew v. Austin, Light and Fuel Co., 17 Pa. Co. Ct.
MONOPOLISTIC GRANTS AND CONTRACTS. 481
§442. Same continued.— Pennsylvania.
The Pennsylvania Corporation Act of April 29, 1874, gives
to water companies the right to introduce into boroughs and
cities, wherever they may he located, a sufficient supply of pure
water; and when completed, its right in the locality by its
works is exclusive, until, during a period of five years, the
company has divided among its stockholders a dividend equal
to eight i3er cent upon its capital stock. Then it is made law-
ful, after twenty years from the introduction of the water,
for the municipality to become the owner of the water works,
by paying the net cost of erecting and maintaining the same,
witli interest thereon at the rate of ten per cent per annum, de-
ducting from the interest the dividends theretofore declared.
An Act of May 23, 1874, passed at the same session of the
legislature as the previous Act, provided that cities of the third
class, should have power in their corporate capacity, to " supply
with water the city and such persons, partnerships and corpora-
tions therein as may desire the same, at such price as may be
agreed upon and for that purix)se have at all times the unre-
stricted right to make and erect all proper works, machinery,
buildings, cisterns, reservoirs, pipes and conduits for the raising,
reception, conveyance and distribution of water, or to make
contracts with, and authorizing any person, company or asso-
ciation to erect all proper water works, madiinery, buildings,
cisterns, reservoirs, pipes and conduits for the raising, recep--
Rep 113- i Pa. Dist. Rop. GG8 ; In Pa. Ct. Rep. 371; Tj^rone Gas and
re Lancaster Gas Co., 5 Pa. Dist. Water Co. v. Tyrone, 195 Pa. St.
Rep 244- In re Williamsport Gas 566; 46 Atl. Rep. 134; Atlantic
Co., 17 Pa. Co. Ct. Rep. 456; 2 Water Works Co. v. Atlantic City,
Lack L. News 112; 5 Pa. Dist. Rep. 39 N. J. Eq. 367.
251; In re Pittsburg, etc., Co., 16 In Atlantic City Water Works
Pa Co Ct Rep. 433; Gas and Wa- Co. v. Consumers' Water Co., 44 N.
ter Co. V. Dowington, 175 Pa. St. J. Eq. 427, 15 Atl. Rep. 581. an act
U\; 38 W. N. C. 376; 34 Atl. Rep. giving an exclusive franchise to a
799- District of Columbia v. Wash- water company to supply Atlantic
inol'on Gaslight Co.. 20 D. C. 39; City was held void, for the reason
Sirburban Electric, etc., Co. v. East that it was special or private legis-
Oran-e (N. J.) 41 Atl. Rep. 865; lation. a kind of legislation forbid-
Freeport W. W. Co. v. Pragen, 3 den by the State constitution.
482
OIL AND GAS.
tion, conveyance and distribution of water, and give such per-
sons, company or association the exclusive privilege of furnish-
ing water as aforesaid for any length of time not exceeding ten
years." It was held that there was such a repugnancy between
the two Acts that both systems of water works could not be in
operation at the same time ; and if the city had first authorized
a private company to put in water works it could not, within
the ten years' period build water works for itself. It was con-
sidered, in effect, that there was only one thing to be granted,
namely, the right to supply the city with water, and when that
was granted the jxjwer was exliausted for the city to make a
grant, as it were, to itself, or rather assume the right to erect
and maintain water works, when it had already granted away
that right. If the city desired to supply its citizens with water,
it must purchase the company's works.^ Several rulings of the
1 White V. Meadville, 177 Pa. St.
643; 27 Pitts. L. J. (N. S.) 97; 39
W. N. C. 102; 35 Atl. Rep. 695;
34 L. R. A. 567 ; iletzger v. Beaver
Falls, 178 Pa. St. 1; 39 W. N. C.
108; 27 Pitts. L. J. (X. S.) 102; 35
Atl. Rep. 1134 (overruling Lehigh
Water Co.'s Appeal, 102 Pa. St.
515) ; In re Millvale Borough, 162
Pa. St. 374; 29 Atl. Rep. 641, 644;
Wilson V. Rochester, 180 Pa. St.
509; 38 Atl. Rep. 136.
Where the controversy was be-
tween two rival companies for the
same territory, an act repealing
the clause giving an exclusive fran-
chise was upheld. Luzerne Water
Co. V. Toby Creek \/ater Co., 148
Pa. St. 568; 24 Atl. Rep. 117.
The exclusive territorial franchise
acquired by a gas company under
the Pennsylvania Act of April 29,
1874, was not repealed by the Act
of June 24, 1895, of that State.
Southern Illuminating Co., 5 Pa.
Dist. Rep. 781. Confra. Consolidat-
ed Gas Co. V. Mitchell, 1 Dauph.
Co. Rep. 71. An exckisive franchise
may be sold to another company.
Southern Illuminating Co., 5 Pa.
Dist. Rep. 781.
Under the Pennsylvania Act of
June 2, 1887, an exclusive franchise
can be granted to a gas com-
pany only when incorporated for
the manufacture of gas for light
alone. Charters of Gas Companies,
5 Pa. Dist. Rep. 396; 18 Pa. Co.
Ct. Rep. 136. Contra, in re Phila-
delphia Gas Works Co., 1 Dauph.
Co. Rep. 55.
This statute was held to not ap-
ply where, from the nature of the
case, an exclusive right cannot in
fact be obtained, and the only efl'ect
would be to prevent competition
throughout a large city for the
benefit not only of the company
claiming the privileges, but of the
two other companies owned by the
same persons and doing a much
more extensive business, under cir-
cumstances which made it much
more advantageous and easy for
such company to fail to divide 8
per cent per annum for an in-
definite period. Consolidated Gas
Co. V. Mitchell, 1 Dauph. Co. Rep.
MOXOPOLISTIC GEAXTS AXD COXTRACTS. 483
executive department of that State have been made concerning
this statute in the granting of franchises. Thus the exclusive
franchise expires when the company has for five years declared
a dividend equal to eight per cent upon its capital stock, al-
though the earnings have been largely applied to betterments
for which the stock dividends have been issued, until the original
capital has been doubled.* The exclusive franchise only em-
braces the territory described in the application for it, and can-
not include " the districts adjacent " to a city, although em-
braced in the application. The exclusive franchise must be
for the city (or a certain named portion of it) in which the
company applies for a franchise, and it can embrace no more
territory than is occupied by a single city, nor can "" elastic
territory " be embraced in the grant. A case of doubt as to
an exclusive franchise should be resolved against the corpora-
tion." The executive department holds that the consent of a
corporation already in existence and having an exclusive fran-
chise cannot authorize the granting of the same franchise to
another corporation in the same district.^" When application
is made for a franchise covering a territory covered by a prev-
ious franchise, it must be showu that the company first granted
a franchise has never perfected it.^^
71. For other cases, see People's St. 74; 40 Atl. Rep. 153; Carlisle
Natural Gas Co. v. Pittsburgh, 1 Gas and Water Co. v. Carlisle
Penn. C. C. Rep. 311; Appeal of Water Co., 182 Pa. St. 17; 37 Atl.
Meadville Fuel Gas Co. (Pa.), 4 Rep. 821.
Atl. Rep. 733, reversing 1 Penn. C. s Citizens' Water Co.'s Charter, 6
C. Rep. 448; Lancaster Gaslight Pa. Dist. Rep. 80.
and Fuel Co. v. Lancaster Gas Co., » Xew Castle Water Co. v. West
17 Pa. Co. Ct. Rep. 453; In re Light Xew Castle Water Co., 6 Pa. Dist.
and Fuel Co., 17 Pa. Co. Ct. Rep. Rep. 10; 18 Pa. Co. Ct. 498; New
113; 4 Pa. Dist. Rep. 668; In re Gaslight Co., 7 Pa. Dist. Rep. 151;
Charter Lancaster Gas Co., 5 Pa. 1 Dauph. Co. Rep. 22.
Dist. Rep. 244; In re Williamsport lo /« re Philadelphia Gas Works
Gas Co., 17 Pa. Co. Ct. Rep. 456; 2 Co., 1 Dauph. Co. Rep. 55.
Lack. L. News 112; 5 Pa. Dist. Rep. n South Side Gas Co. v. South-
251; hi re Pittsburg Ilhmiinating ern Illuminating Co.. 18 Pa. Co.
Gas Co., 16 Pa. Co. Ct. 433 ; In re Ct. 529 ; Southern Illuminating Co.,
Levis Water Co.. 11 Pa. Co. Ct. 5 Pa. Dist. Rep. 781.
Rep. 178; Rienker v. Lancaster, 14 See generally. Centre Hall Water
Lane. L. Rev. b93; Centre Hall Co. v. Centre Hall, 186 Pa. St. 74;
Water Co. v. Centre Hall, 186 Pa. 40 Atl. Rep. 153.
484 OIL AND GAS.
§443. Same continued.
A statute gave a gas company the exclusive right to supply a
certain city with gas for twenty years, giving to the city the
right to purchase the gas works in either twenty or twenty-five
years, viz., in 1860 or 1865, under certain conditions, with
promise that if the city did not purchase at either of these dates
the charter should continue in force until 1890. In 1846 the
city agreed to give up its right to purchase the works in 1860,
the company agreeing, without the consent of its stocldiolders,
that if the city should not buy in 1S65 it might do so in 1870,
or at the end of any five years thereafter. In 1860 the city
desired to purchase the works, but the company declined be-
cause of the contract of 1846. In 1870 the city again took
steps to pairchase, but the company resisted it, now alleging
that the contract of 1846 was void, and therefore the time fixed
by the charter had expired. In 1873 another contract was en-
tered into by both the city and the company and a second gas
company, by which it was agreed that the contract of 1846
should be cancelled, all pending litigation dismissed, and the
first company should release its exclusive right in a certain
portion of the city, besides other provisions immaterial here.
It was held that the right conferred upon the city to purchase
the works was simply a privilege to become a purchaser in
1860 and 1865, laying the city under no obligation to do so at
either of these times ; that the gas company was estopped to
set up the contract of 1846 as ultra vires; and that the contract
of 1873 was not ultra vires on the part of the company as an
attempt on its part to absolve itself from the performance of a
corporate duty, that of burnishing gas to a portion of the city,
for the right to exclude competition was solely for the benefit
of the company, and therefore one it might surrender.^"
12 St. Louis V. St. Louis Gaslight company that if the area of the city
Co., 70 Mo. 09 reversing 5 Mo. App. was enlarged, the exclusive grant
484. followed into the new area. St.
Under the original contract it Louis Gaslight Co. v. St. Louis, 4(i
was held with reference to this same Mo. 12L
MOXOPOLISTIC GRANTS AND CONTEACTS. 485
§444. Statute authorizing exclusive grant.
In Connecticut a statute authorized in direct terms a gas com-
pany to lay its pipes in the streets of a certain town, to the ex-
clusion of all other gas companies. Xo duty of supplying the
public with gas was imposed. This statute was held void, and
so was an ordinance of the same tenor. The court referred to
those instances where the crown granted franchises to build
bridges or maintain ferries and collect tolls for their use, and
said that unless the grants required the grantees to serve the
public, they were void for lack of consideration, and then said :
" It is the duty as well as the prerogative of the government to
provide necessary and convenient roads and bridges ; and, to
enable it to accomplish this object, it has everwhere what is
called ' the right of eminent domain ' ; the right over individual
estates to resume them for this and other public purposes.
Such a prerogative connected with a corresponding duty, with
the power to execute it by the exercise of the right of eminent
domain, necessarily implies that it belongs to the government
to determine what improvements are of sufficient importance to
justify the exercise of the right, and when and how it shall
be exercised ; and if a particular bridge or ferry is considered
sufficient for a particular locality, it may stipulate that within
such reasonable limits the particular bridge or ferry tolls shall
not be diminished by any other improvements of the sort. But
it is no part of the duty of the government to provide the com-
munity with lights in their dwellings any more than it is to
provide them wnth the dwellings themselves or any part of the
necessaries or luxuries which may be deemed important to the
oomfort or convenience of the community. And if it be assured
that there could be no impropriety in the lighting of the streets
under the control and directions of the sovereign power, this
would be merely as a regulation of public power or an incident
to the duty to provide safe and convenient ways. And in case
the power to provide for lighting the streets is of no importance,
because nothing was done to secure the object, unless the plain-
tiff chose to assume it ; and whether they would do so, would
probably depend upon whether it could be made profitable.
486 OIL AND GAS.
As, then, no consideration whatever, either of a public or pri-
vate character, was reserved for the grant ; and as the business
for manufacturing and selling gas is an ordinary business, like
the manufacture of leather or any other article of trade, in
respect to which the government has no exclusive prerogative^
we think that so far as the restriction of other persons than the
plaintiff from using the streets for the purpose of distributing-
gas by means of pipes can fairly be view as intended to operate
as a restriction upon its free manufacture and sale, it comes
directly within the definition and description of a monopoly;
and although we have no direct constitutional provision against
a monopoly, yet the whole theory of a free government is op-
loosed to such grant,*0nd it does not require even the aid which
may be derived from the Bill of Rights, which declares ' that no
men or set of men are entitled to exclusive public emoluments
or privileges from the community,' to render them void. . . .
While, then, w^e are not called upon to question the power and
authority of the legislature to grant to the plaintiff the right to
lay down their own pipes for the distribution of gas through
the streets for their own private purposes, we think, consider-
ing that the streets, subject to the public easement, are private
property, that it does not possess the power to exclude others
from using them for similar purposes." ^^
§445. A grant to use of streets to exclusion of all others must
rest on statutory power.
In Indiana a statute gave towns absolute control over its
streets. A subsequent statute provided that a to^vn should
liave the " power to provide by ordinance reasonable regula-
tions for the safe supply, distribution and consumption of
natural gas within " its limits, " and to require persons or
companies to whom the privilege of using the streets and al-
]<\vs ... is granted for the supply and distribution of
such gas to pay reasonable license for such franchise and privi-
lege." The trustees of a town of that State granted a natural
13 Norwich Gaslight Co. v. Norwich City Gas Co., 25 Conn. 19.
MONOPOLISTIC GRANTS AND CONTRACTS. 487
gas companj the exclusive privilege of laying pipes and mains
in the streets and alleys of their town for the purpose of supply-
ing it and its inhabitants with natural gas ; and in consideration
of this grant the company agreed to furnish natural gas to each
alternate street lamp free, and also to furnish gas for lights in
front of the church buildings of the town without charge. The
gTantee of these privileges accepted them and laid its pipes and
mains in the street. Thereafter another gas company, with-
out any permit from the town, on the assumption that the grant
was void, entered upon its streets and began digging trenches
therein and laying pipes. The town brought an action to en-
join them, on the theory that the gi'ant given the first company
excluded all other companies. The court held that without per-
mission of the town board of trustees the second company could
not lay its pijDes in the streets, and for that reason alone it
should be enjoined ; and that it was not precluded by its illegal
grant to the first company. The court also held that inasmuch
as the legislature had not empowered the town to grant an ex-
clusive franchise, or one excluding all other companies than
the grantee — it had no power to make such a grant. But the
discussion of the question ran farther than this, '' A munici-
pal corporation," said the court, " cannot grant to any fuel or
gas supply company a monopoly of its streets. There is nothing
in the nature of the business of such a company making its
use of the streets necessarily exclusive. The spirit and policy
of the law forbid municipal corporations from creating monopo-
lies, by favoring one corporation to the exclusion of others. It
is probably true that a municipal corporation may make a con-
tract with a gas company for supplying light to the public
lamps for a limited time, even though it be for a number of
years ; on this point, however, there is some conflict, but there
is no conflict on the proposition that, in the absence of express
legislative authority, a municipal corporation cannot grant to
any corporation the exclusive privilege of using its streets.
There is,, we know, much conflict among the authorities upon
the question of the power of the legislature to grant an exclu-
sive right to a gas company to use the highways of a municipal
488
OIL AND GAS.
corporation ; and, under our constitution, it is very doubtful
whether the legislature possesses such authority. But we are
not here concerned with that phase of the question, since the
legislature has not attempted to vest an exclusive privilege in
any corporation." ^* Some of the courts, however, go very far
in upholding grants of this kind, under the general statute
"Citizens' Gas, etc.. Co. v. El-
wood, 114 Ind. 332; IG S. E. Rep.
624; 20 Am. and Eng. Corp. Cas.
263; Walla Walla v. Walla Walla
Water Co., 172 U. S. 1; 19 Sup.
Ct. Rep. 77; Indpls. Cable St. R. R.
Co. V. Citizens' Street R. R. Co.,
127 Ind. 369; 24 N. E. Rep. 1054;
26 N. E. Rep. 893; 8 ft R. A. 539;
Crowder v. Sullivan, 128 Ind. 486;
28 N. E. Rep. 94; 13 L. R. A. 647;
Rushville v. Rushville Natural Gas
Co., 132 Ind. 575; 28 N. E. Rep.
853; 15 L. R. A. 321; 43 Am. and
Eng. Corp. Cas. 483 ; Westfield Gas,
etc., Co. V. Mendenhall, 142 Ind.
538; 41 N. E. Rep. 1033; State v.
St. Louis, 145 Mo. 551; 46 S. W.
Rep. 981 ; State v. Cincinnati Gas-
light and Coke Co.^ 18 Ohio St. 262;
Saginaw Gaslight Co. v. Saginaw,
28 Fed. Rep. 529; 16 Am. and Eng.
Corp. Cas. 562; Garrison v. Chicago,
7 Biss, 480; Jackson County Horse
Co. V. Inter-State, etc., Co., 24 Fed.
Rep. 306; Atchison Street Ry. Co.
V. Missouri Pacific Ry. Co., 31 Kan.
600; 3 Pac. Rep. 284; Davis v.
Mayor. 14 N. Y. 506; 67 Am. Dec.
186; Illinois, etc., Co. v. St. Louis,
z Dill. 70; Memphis Gayoso Q^ts Co.
V. Williamson. 9 Heisk. 314; Hamil-
ton V. Hamilton Gasliglit and Coke
Co., 11 Ohio Dec. 513; Parkersburg
Gas Co. V. Parkersburg, 30 W. Va.
435 ; 4 S. E. Rep. 650 ; Capital City,
etc., Co. V. Talahassee, 42 Fla. 462;
28 So. Rep. 810; Kirkwood v. Mera-
mee Highlands Co., 04 Mo. App.
637; 68 S. W. Rep. 761.
The following are some instances
of grants of exclusive franchises or
monopolistic contracts or giants:
Logan V. Pyne, 43 Iowa 524 ; 22
Am. Rep. 261 (an omnibus line,
not upheld ) ; Gale v. Kalamazoo, 23
:\Iich. 344; 9 Am. Rep. 80 (a mar-
ket house, void) ; Montjoy v. Pil-
low, 64 Miss. 705; 2 So. Rep. 108;
Louisville v. Wible, 84 Ky. 290; 1
S. W. Rep. 605 (removing the dead
animals of a city, five years' con-
tract sustained) ; Chicago v.
RumpfT. 45 111. 90; 92 Am. Dec. 196
(slaughtering animals for city's use,
void); Le Claire v. Davenport, 13
la. 210 (a market, sustained ), over-
ruling Davenport v. Kelly, 7 la.
102 ; S . Louis v. Jackson, 25 Mo.
37 (sale of meat in a market house,
sustained); Bloomington v. Wahl,
46 111. 489 (sale of meat, not sus-
tained) ; Her v. Ross, 63 Neb. — ;
90 N. W. Rep. 869 (right to collect
ashes, void). See St. Louis v. We-
ber, 44 Mo. 547 ; Bowling Green v.
Carson, 10 Bush. 64; Buffalo v.
Webster, 10 Wend. 100; Bush v.
Seabury, 8 Johns. 418; Ttigman v.
Chicago, 78 111. 405; Bethune v.
Hughes, 28 Ga. 560; Caldwell v.
Alton, 33 111. 417 (sale of vegetables
during certain hours of the day, not
sustained) ; Smith v. Westerly, 19
R. I. 437; 35 Atl. Rep. 526; West-
erly W. W. Co. V. Westerly, 80 Fed.
Rop. 611; Westerly W. W. Co. v.
Westerly, 75 Fed. Rep. 181 ; 76 Fed.
Rep. 467.
MOXOPOLISTIC GRAX'TS AXD COX" TK ACTS. 489
giving power to a city over its streets and to light them, or secure
a company to furnish light for that purpose, and to its inha]>
itants. It has been held in a number of well considered cases
that a municipality had the power to grant an exclusive fran-
chise.^^' In a leading Xew York case a statute authorized a city
to enter into a contract for lighting its streets, but did not specify
the length of time it was to run ; and it was held that it did not
confer powet to make an absolute and binding contract for a
term of years ; and that the statute could be repealed while a
contract yet had several years to run. It was considered that
the city could revoke the contract at any time it saw fit.^*^
§446. Grant of exclusive franchise strictly construed.
Courts do not look with favor upon grants to give exclusive
rights to occupy the streets and furnish lights to the municipal-
ity's inhabitants. Such a grant is strictly construed, in fact,
it may be said very strictly construed. Thus an exclusive right
to furnish gas light will not confer a right to furnish light by
electricity without the consent of the city.^' And the mere fact
that a gas company has the right to lay its pipes in the streets,
isDes Moines St. Ry. Co. v. Des U. S. 48; 18 Sup. Ct. Rep. 732;
Moines, 73 la. 513; 33 N. W. Rep. affirming 110 Mich. 384; 68 N. W.
GIO; 3.5 N. W. Rep. 602; Newport Rep. 304; Park Com'rs v. Common
V. Newport Light Co., 84 Ky. 166; Council, 28 Mien. 228.
Fergus Falls Water Co. v. Fergus " State legislatures may not only
Falls, 65 Fed. Rep. 586; Illinois exercise their sovereignty directly.
Trust and Savings Bank v. Arkan- but may delegate such portions of
sas City, 76 Fed. Rep. 271; 22 C. C. it to inferior legislative bodies as,
A. 171; 34 L. R. A. 518. in their judgment, is desirable for
iG Richmond County Gaslight Co. local purposes." Walla Walla v.
V. Middletown, 59 N. Y. 228, affirm- Walla Walla W. Co., 172 U. S. 1;
ing 1 T. and C. 143. 19 Sup. Ct. Rep. 77.
Power not expressly given, will i^ Newport v. Newport Light Co.
not be presumed, unless necessarily (Ky.), 11 Ky. L. Rep. 840; 12 S.
or fairly implied or incident to W. Rep. 1040; Saginaw Gaslight Co.
other powers expressly given — not v. Saginaw, 28 Fed. Rep. 529; Par-
simply convenient, but indispensable kersburg Gas Co. v. Parkersburg,
to them. Los Angeles v. Los An- 30 W. Va. 435; 4 S. E. Rep. 650;
geles City W. Co., 177 U. S. 558; Helena v. Helena W. W. Co., 122
20 Sup. a. Rep. 736; Detroit Citi- Fed. Rep. 1
zens' St. Ry. Co. v. Detroit Ry., 171
490 on. AND GAS.
the city agreeing to take a certain amonnt of gas from it for
a certain time, from lamps placed on the street by the company,
does not give it exclusive right.^^ Xor does a statute give a
gas company an exclusive franchise merely because it requires
the company to furnish the city gas within three years, and
authorizes it to make and sell gas for fifty years." An ex-
clusive franchise to operate a street horse railway does not pre-
vent the municiaplity granting a franchise to an electric railway
company."" Where a company secured the exclusive right to
supply a city with water from a certain creek, which was the
most accessible source for the city's water supply, it was held
that this did not prevent the city granting to another company
the right to supply the city with water taken from some other
source.'^ So where the charter of a company authorized it to
take water from a certain pond with water for domestic pur-
poses, and forbade those who had mill privileges on the pond to
cut below the pipes of the company or interfere with the water or
obstruct the works ; it was held that this did not give the com-
pany the exclusive right to the water of the pond for the pur-
jx)ses designated ; and the legislature could grant to another
company the right to take water from such pond."' In Xew
Jersey, however, a different rule of interpretation was allowed
to prevail in one case. A gas company was authorized to lay
its pipes, with the consent of the abutting property owners, in
a certain city. It did so, and then another company proceeded
to do so Avithout any legislative authority whatever. The first
company sought and obtained an injunction against the second;
and it was held " ihat the grant of a franchise by the State is,
by its own extensic force, and without express words, exclusive
against all persons but the State, and that any attempt to exer-
18 Vineennes v. Citizens' Gaslight See Des Moines St. Ry. Co. v. Des
and Coke Co., 132 Ind. 114; 31 N. Moines, etc., Ry. Co., 73 la. 513; 33
E. Rep. 573; 16 L. R. A. 485. N. W. Rep. 610; 35 N. W. Rep. 602.
19 Memphis Gayoso Gas Co. v. 21 Stein v Bienville Water Supply
Williamson, 9 Heisk. 314. See also Co., 34 Fed. Rep. 145; affirmed 141
Sheffield United Gas Co. v. Shef- U. S. 67; 11 Sup. Ct. Rep. 892.
field Consumers' Co., 2 Gas J. 360. 22 Rockland Water Co. v. Camden,
20 Omaha Horse Ry. Co. v. Cable etc.. Water Co., 80 Me. 544; 1.5
Tramway Co., 30 Fed. Rep. 324. Atl. Rep. 785.
MONOPOLISTIC GKANTS AND CONTRACTS. 491
cise like rights and privileges without legislative authority is a
fraud and unwarranted usurpation of power." -^ In Penn-
sylvania it was held that a charter '' for supplying light and
heat by means of natural gas " in a certain city did not conflict
with the charter of another company for *" the manufacture and
supply of gas for fuel heat,'' at the same place, both grants
being exclusive."* So a grant to supply " heat to the public
from gas " was held not to conflict with another grant for the
same territory " for the purpose of supplying heat to the public
by means of natural gas conveyed from such adjoining counties
as may be convenient." "'' In the absence of words giving an
exclusive franchise, a contract between a municipality and a
company for gas cannot be construed as such a franchise. ""^^^
A vote of the town authorizing the town council to give a town
the right to lay pipes in the streets, followed by the to-\vn's silence
for five years without taking action relative to the purchase of
the plant (which it had a right to make), of the use of the water
by the town for its own hall and drinking fountains where a
certain quantity of water was to have been furnished as a con-
dition of the grant of the use of the streets — nor a vote of the
town to purchase the company's works — does not give an
exclusive franchise to the company.""^ The courts will not adopt
such a construction of a statute incorporating a water company
as will prevent the State or a municipality from ever after
23 Jersey City Gas Co. v. Dwight, Pa. St. Ill; 15 W. N. C. 425; 42
29 N. J. Eq. 242. Leg. Int. 8L
24 Erie Mining and Natural Gas *25 Bartholomew v. Austin, 85
Co. V. Gas Fuel Co., 15 W. N. C. Fed. Rep. 359; 5^1 U. S. App. 512;
399. See Emerson v. Common- 29 C. C. A. 568; Long Island Water
wealth, 108 Pa. St. Ill; Carother's Supply Co. v. Brooklyn. 166 U. S.
Appeal, 118 Pa. St. 468; 12 Atl. 685; 17 Sup. CL Rep. 718,
Rep. 314; 11 Cent. Rep. 48; John- Skaneateles W. W. Co. v. Skaneate-
ston V. People's, etc., Gas Co. (Pa.), les, 161 N. Y. 154; 55 X. E. Rep.
5 Cent. Rep. 564; Sterling's Appeal, 562; affirming 33 N. Y. App. Div.
Ill Pa. St. 35; 2 Atl. Rep. 105; 2 642; 54 N. Y. Supp. 1115.
Cent. Rep. 49; Wilkes-Barre Light 26 Westerly W. W. Co. v. West-
Co. V. Wilkes-Barre, etc., Co., 4 erly, 80 Fed. Rep. 611. See West-
Kulp 47; In re Johnston (Cat), 69 erly W. W. Co. v. Westerly, 75 Fed.
Pac. Rep. 973. Rep. 181; 76 Fed. Rep. 467; Smith
25 Emerson V. Commonwealth, 108 v. Westerly, 19 R. I. 437; 35 Atl.
Rep. 526.
492
OIL AND GAS.
using the waters of a stream it has appropriated to its use, for
public or municipal purposes, without making compensation to
such company, unless the legislative intent is beyond doubt. '^
Several cases arose in ]^ew Orleans over the attempted annul-
ment by constitutional provisions of exclusive franchises prev-
iously granted ; and these provisions were held to be void by the
Supreme Court of the United States. In one of these cases
an ordinance of the city gave the lessee of a hotel a right to
supply the hotel with water drawn from the Mississippi river
many blocks away through mains laid in the streets, and this
was held to impair an exclusive franchise previously granted
to a water company to supply the city and its inhabitants with
water, although there was a clause in such franchise reserving
to the city power to grant to any person who was " contiguous
to the river, the privilege of laying pipes to the river, exclusively
for his own benefit." It was said that no lot could be con-
tiguous unless it actually fronted on the river, or was separated
27 St. Anthony Falls Water
Power Co. v. Board, 168 U. S. 349;
18 Sup. Ct. Rep. 157. See Syracuse
Water Co. v. Syracuse, 116 N. Y.
167; 22 N. E. Rep. 381; 5 L. R.
A. 546; In re City of Brooklyn, 143
N. Y. 596; 38 N. E. Rep. 983; 26
L. R. A. 270; Helena v. Helena
W. W. Co., 122 Fed. Rep. 1.
As an illustration how strictly
contracts for an exclusive right to
supply a municipality with gas is
construed, see a New York case
where it Avas held that a contract
of the board of improvements of a
towTi with a gas company to lay its
pipes in its streets did not pre^'ent
other officers becoming vested with
the power to determine whether
leave should be granted to other
companies to lay pipes in the streets,
nor prevent them exercising the
power. Parfitt v. Furguson, 3 N. Y.
App. Div. 176; 38 N. Y^ Supp. 466;
affirmed 159 X. Y. Ill; 53 N. E.
Rep. 707.
Granting a company the right to
occupy all the streets in a city is
not the granting of an exclusive
franchise. Walla Walla v. Walla
Waila Water Co., 172 U. S. 1; 19
Sup. Ct. Rep. 77; 60 Fed. Rep. 957;
Hughes V. Momence, 163 111. 535;
45 N. E. Rep. 300; Long Island
Water Supply Co. v. Brooklyn, 166
U. S. 685; 17 Sup. Ct. Rep. 718;
In re City of Brooklyn, 143 N. Y.
596; 38 N. E. Rep. 983; 26 L. R. A.
270.
A special act will not be con-
strued to give a monopoly unless it
clearly appears to be so intended.
La Campagine pour L'Eclairage an
Gas V. La Campagine, etc., 25 Can.
S. C. 108; Atlantic City W. W. Co.
V. Consumers' Water Co., 44' N. J.
Eq. 427; 15 Atl. Rep. 581; West-
erly W. W. Co. V. Westerly, 80 Fed.
Rep. 611; Helena v. Helena W. W.
Co., 122 Fed. Rep. 1.
MOXOPOLISTIC GRANTS AKD CONTRACTS. 493
from the river only by a public highway, with no private owner
intervening, or possibly, on a block or square so located."^
§447. Legislature cannot revoke monopolistic clause of company's
charter.
In the previous section, it is said that the legislature had
the power to revoke the monopolistic feature of a gas company's
charter or franchise, and this is said of a charter where the
right to change or revoke that feature was not reserved in the
original grant. The Supreme Court of the United States does
not take this view of the matter. The Louisiana legislature
granted to a gas company the exclusive right, for fifty years,
to lay pipes in the streets of I^ew Orleans and furnish gas to
the inhabitants of that city. The company laid its pipes in
the streets, built its works, and supplied gas for several years.
The legislature then granted to another company the right to
also lay pipes in the streets and furnish gas ; and upon applica-
tion of the first company, the second company was enjoined,
on the theory that the second grant infringed upon the rights
of the first company. '" The court was careful to state that the
granting of the franchise giving the grantee the exclusive right
to furnish gas to the city did not prevent the city adopting
proper police regidations for the control of the gas company so
far as they related to the health and protection of the inhabitants
of the city, and the control of the city's property and streets.
Other decisions of this court follow this case.^" The same rule
was applied to a gas company created in Kentucky, even though
the constitution of that State provided " that all freemen, when
they form a social compact, are equal, and that no man or set
28 Xew Orleans Water Works v. Bridge, 3 Wall. 51. Contra, Ham-
Rivers, 115 U. S. 674; 6 Sup. Ct. il ton Gaslight and Coke Co. v. Ham-
Rep. 273; New Orleans W. W. Co. ilton, 37 Fed. Rep. 832.
V. Ernst, 32 Fed. Rep. 5. so New Orleans W. W. Co. v. Riv-
29 New Orleans Gas Co. v. Louis- ers, 115 U. S. 674; 6 Sup. Ct. Rep.
iana Light, etc., Co., 115 U. S. 650; 273 (reversing 4 Woods 134) ; St.
6 Sup. Ct. Rep. 252 (reversing 4 Tammany W. W. v. New Orleans W.
Woods 90) ; Crescent City Gaslight W.. 120 U. S. 64 7 Sup. Ct. Rep.
Co. V. New Orleans Gaslight Co., '27 405; New Orleans W. W. Co. v.
La. Ann. 138; Bridge Proprietors v. Ernst, 32 Fed. Rep. 5,
Hoboken, 1 Wall. 116; Binghamton
494 OIL AND GAS.
of men are entitled to exclusive, sc])arate emoluments or privi-
leges from the community, but in consideration of public
services." In 1838 a charter was granted to a gas company;
and in 1850 the legislature provided that thereafter " all char-
ters and grants of and to corporations, or amendments thereof,
shall be subject to amendment or repeal at the will of the legis-
lature, unless a contrary intent be therein expressed.'' In 1869
this charter of 1838 was amended, granting to a gas company,
in such amendment, an exclusive right to occupy the streets of
Louisville. In 1872 another statute was passed authorizing
another gas company to lay its pipes, with the consent of the
city council, in the streets, and to furnish gas to its inhabitants.
This latter Act was li*ld void, because it was clear that the Act
of 1860 gave the company the right to continue to enjoy the
franchise it then possessed for the term therein named v/ithout
being subject to have its charter in that respect amended or
repealed at the will of the legislature.^^ In ]\Iissouri one of
the Appellate Courts drew a distinction between the power of
the legislature to authorize a gas company to occupy streets to
the exclusion of others, and the power to authorize an exclu-
sive right to vend gas for the same time in a city — holding
the former a valid grant, and the latter void, because prohibited
both by the common law and by a clause in the constitution pro-
hibiting the granting of special privileges.^"
31 Louisville Gas Co. v. Citizens' tutional provision abrogate the ex-
Gas Co., 115 U. S. 683; 6 Sup. Ct. elusive clause in the franchise of a
Rep. 265; reversing 81 Ky. 263. water company; and in such an in-
See Hovelman v. Kan -is City Horse stance a city cannot insist on fur-
K. R. Co., 79 Mo. 632. *' nishing the water under the plea
32 St. Louis Gaslight Co. v. St. that it will furnish a purer and
Louis, etc., Co., 16 Mo. App. 52. more suitable supply. St. Tam-
An ordinance for the laying of many W. W. Co. v. New Orleans
pipes in certain streets is not in- W. W. Co., 120 U. S. 64; 7 Sup. Ct.
validated by the fact that pipes of Rep 405; 14 Fed. Rep. 194.
a private company exist on some But see Beinville Water Supply
of the streets. Hughes v. Momence, Cd. v. Mobile (U. S.), 22 Sup. Ct.
163 HI. 535; 45 N. E. Rep. 300. Rep. 1S20; affirming 175 U. S. lOJ;
A State cannot even by a consti- 20 Sup. Ct. Rep. 40.
MONOPOLISTIC GRAXTS AND CONTKACTS. 495
§448. Municipality agreeing not to compete with gas company.
A municipality may bind itself not to compete with a gas
company to which it has granted a right to furnish gas to it
and its inhabitants, by agreeing in the gTant not to engage in
furnishing gas as a municipal enterprise for a named period.
But it may well be doubted if it could thus bind itself in per-
petuity. Thus in the State of Washington a city was chartered
by a special Act of the legislature, and was authorized to issue
its bonds, not to exceed fifty thousand dollars in amount, to
build water works, or to authorize a company to build them.
The city authorized a company to put in a water works system,
upon the condition that it would furnish free water for city
hydrants and for flushing the sewers ; and agreed to not build
water works of its own for twenty-five years. It was also pro-
vided that if the service of the company should prove unsatis-
factory, the city might apply to the courts to secure, for suffi-
cient cause, a revocation of the grant. After the company had
constructed its works and for several years had supplied water,
Avithout securing a revocation of its grant, it submitted the ques-
tion, pursuant to a general statute, to the people whether or not
it should build water works on its o\\m account; and the vote
being favorable to the building of them, enacted an ordinance
for their construction, and provided for an issue of one hun-
dred and sixty thousand dollars of bonds for that purpose. The
court restrained the city from entering upon the enterprise of
building its own water works, holding that so long as the first
grant remained unrevoked it could not do so ; and that the con-
tract not to engage in a competitive work of supplying gas was
binding upon the city.^^ The mere grant of a right to build a
gas plant, lay pipes in the street, and supply the city and
its inhabitants with gas, accompanied by contracts, at different
times, for lighting the streets, does not prevent the city, when
such contracts are at an end, building its ovm. gas plant and
supplying itself and its inhabitants with gas; and that, too, even
33 Walla ^Yalla v. Walla Walla
Water Co.. 172 U. S. 1 ; 19 S. Ct.
Rep. 77, affirming GO Fed. Rep. 957-
496 OIL AND OAS.
though the city had several times fixed the price of gas, under
a statute, at which it should be sold to the inhabitants of the
cit}'."'' And a statute providing that when any existing com-
pany refuses to extend its lines, make connections, or perform
certain other duties when required to do so by the municipal
authorities, its charter should be forfeited, and the city be at
liberty to establish and maintain gas works of its o^\^l, passed
after the company had been gTanted a franchise, does not impair
the obligation of contracts, within the meaning of the Federal
Constitution, although the value of the existing company's fran-
chise is diminished by the city's erecting its own works.^^ The
fact that the city owns its own gas works does not enable it to
prevent a gas company, having the right to do so, from extend-
ing its mains and su|fplying gas to the city's inhabitants at a
rate below that at which the city can manufacture and supply
it, thereby rendering its enterprise a losing one."'** It has been
sometimes held that statutes were so peculiar in their terms
that a municipality could not engage in the enterprise of fur-
nishing water, where it had granted the right to a private cor-
poration, even though such grant was not an exclusive one.
Such is a case already cited." In ISTew York a case arose which
rests on such a statute — a very peculiar statute. In that State
it has been decided that the fact of a municipality granting t t
a water company the right to furnish the city and its inhabitant ,
water, containing no grant of an exclusive character, did nc ',
prevent it from making the same kind of a grant to anothet
water company; ^^ and that rule is adhered to in the case nov!
34 state V. Hamilton, 47 Ohio St. North Springs Water Co. v. Taco-
52; 23 N. E. Rep. 935; 29 Am. and ma, 21 Wash. 517; 58 Pac. Rep.
Eng. Corp. Cas. 208; Westerly W. 773; 47 L. R. A. 214.
W. Co. V. Westerly, 80 Fed. :^ep. 36 Hamilton v. Hamilton Gaslight
611; 75 Fed. Rep. 181; 76 Fed. Rep. Co., 11 Ohio Dec. 513.
467; Helena v. Helena W. W. Co., 37 See the case of White v. Mead-
122 Fed Rep. 1. ville, supra. See Welsh v. Beaver
35 Hamilton Gaslight and Coke Falls (Pa.), 40 Atl. Rep. 784.
Co. V. Hamilton, 146 U. S. 258; 13 38 /^ re City of Brooklyn, 143
Sup. Ct. Rep. 90; affirming 37 Fed. N. Y. 596; 38 IT. E. Rep. 983; 26
Rep. 832; State v. Hamilton, 47 L. R. A. 270; Syracvise Water Co. v.
Ohio St. 52; 23 N. E. Rep. 9.'?5; Syracuse. 116 N. Y. 167; 22 N. E.
29 Am. and Eng. Corp. Cas. 208; Rep. 381; 5 L. R. A. 546; Power v.
MONOPOLISTIC GRANTS AND CONTRACTS. 497
under discussion. A village gave a non-exclusive franchise to a
^vater company to construct a water system. After the ex-
piration of the franchise, the village did not purchase the sys-
tem, as the law provided it might, but began the construction
of its own system under a statute which authorized it to levy
a tax where the net water receipts were insufficient to pay the
indebtedness incurred in building the system when due, and to
" establish a scale of water rates for the use of water and also
rates for the fire protection to be assessed on all real property
abutting on the mains or within two hundred feet of the hy-
drants, or on such real property so abutting or within said
distance as such boards may deem beneficial, upon which real
property the water is not used, by the o^\^ler or occupant
thereof for domestic or manufacturing purposes." After the
work of constructing a municipal plant was begim, the existing
private water company brought suit to enjoin its construction,
claiming that the above section was invalid ; and the court sus-
tained its claim. The basis of the decision was that, if the
net receipts were not sufficient to pay the debt incurred in
putting in the plant, the village had the power to tax the pri-
vate company's plant and all its consumers of water ; but if such
consumers would abandon it, and take water from the village
" for domestic or manufacturing purposes," then their proper-
ties were exempt from the tax. The court regarded this as such
an unfair provision that it violated that provision in the Fed-
eral Constitution prohibiting a State impairing the obligation
of a contract.^®
Athens, 99 X. Y. 592; 2 X. E. Rep. by implication. Tj-rone Gas and
609. Water Co. v. Tyrone, 195 Pa. St.
39 Skaneateles Water Works Co. 566; 46 Atl. Rep. 134.
V. Skaneateles, 161 N. Y. 154; 55 If a gas company has the exclu-
N. E. Rep. 562; affirming 33 N. Y. sive right to furnish gas to a city,
App. Div. 642; 54 N. Y. Supp. 1115. it may maintain a bill to restrain
See Warsaw W. W. Co. v. Warsaw, the city proceeding under its gen-
16 N. Y. App. Div. 502; 44 N. Y. eral powers to build a plant. Gas
Supp. 876. and Water Co. v. Dowington, 175
The contract of a city not to con- Pa. St. 341; 38 W. X. C. 376; 34
struct a plant of its own may arise Atl. Rep. 799. See Southwest Mis-
498 OIL AND GAS.
§449. Legislature may not authorize monopolistic grants.
j^otwithstanding what has been said in the former sections,
there are quite a number of cases which hold that the legislature
cannot itself, nor authorize a municipality to grant an exclusive
franchise, nor even enter into a contract with a gas or water
company to take gas or water from it for a long period of years
and agree to exclude all competitors. Such gi-ants or contracts
are held to create such a monopoly as the usual clause in a con-
stitution against monojx)lies prohibits,'*'* The granting of an
exclusive right of way to lay pipes in the streets or highways
is void under the Texas constitution.*^
§450. Estoppel to co4test validity of monopolistic grant. —
Ratification.
A municipality is not estopped to deny the validity of a
monopolistic grant or contract; for to allow an estoppel to be
successfully pleaded, would be to bind the corporation by a
grant or contract it had no power to make. A city or town
being a public corporation, those who contract with it are as
souri Light Co. v. Joplin, 113 Fed. monopolies. Edwards County v.
Rep. 817. Jennings, 89 Tex'. 618; .35 S. W.
A city cannot insist on furnishing Rep. 1053; 33 S. W. Rep. 585; Da-
water, to the exclusion of a water venport v. Kleinschmidt, 6 Mont,
company, under the plea that it will 502; 13 Pac. Rep. 249; Minturn v.
furnish a purer and more suitable La Rue, 23 How. 435 (a ferry
supply. St. Tammany W. W. Co. right) ; Long v. Duluth, 49 Minn.
V. Xew Orleans W. W. Co., 120 U. 280; 51 N. W. Rep. 913; Atlantic
S. 64; 7 Sup. Ct. Rep. 405; 14 Fed. City W. W. Co. v. Consumers' Wa-
Rep. 194. ter Co., 44 N. J. Eq. 427; 15 Atl.
4o Brenham v. Brenham Water Rep. 581; diametrically opposed to
Co., 67 Tex. 542; 4 S. W. Rep. ^43; Atlantic City W. W. Co. v. Atlan-
Janeway v. Duluth, 65 Minn. 292; tic City, 48 N. J. L. 378.
68 >s. W. Rep. 243. See Des Moines 4i Edwards County v. Jennings,
Gas Co. V. Des Moines, 44 Iowa 505. 80 Tex. 618; 35 S. W. Rep. 1053;
In Bartholomew v. Austin, 85 Fed. affirming 33 S. W. Rep. 585. See
Rep. 359; 52 U. S. App, 512; 29 People v. Bowen, 30 Barb. 24; af-
C. C. A. 568, the United States firmed 21 X. Y. 517; Elmira Gas-
Court of Appeals disapprove of this light Co. v. Elmira, 2 Ala. L. Jr.
case in passing upon the clause in 392.
the constitution of Texas against
MONOPOLISTIC GRANTS AND CONTRACTS. 499
much bound to know its powers and limitations as its inhab-
itants and officers ; so that it cannot be successfully said that
those contracting with it were in ignorance of its power to bind
itself or were misled by the representations of its officers.*"
Silence for five years without taking any action to purchase
the plant under a contract, as it had a right to do, or by use
of the water for town purposes, or a vote of the town to notify
the company of an intention to purchase its ])lant, or all these
together will not estop the city so as to prevent it setting up the
invalidity.*'* So a clause in a company's charter granting it the
right to lay its pipes in the streets of a certain town for an
indefinite period, but not granting to or recogTiizing any au-
thority in the town council to make an exclusive grant of a
right therein, will not constitute a ratification of an unauthor-
ized exclusive grant made by it.** And the fact that the company
has used the streets for twenty years, even under permission of
the city council, will not prevent the court from inquiring into
its right to an exclusive use of the streets," and the fact that
others have not exercised a similar right does not make the com-
pany's uses the exercise of a right to exclude others.*^
§451. A federal question.
The granting of a second or other franchise impairing the
benefit given by an earlier franchise, or its revocation, raises a
question under the Constitution of the United States giving the
Federal courts jurisdiction when properly raised.*"
42 Smith V. Westerly, 19 R. I. pany for a long time is estopped
437 ; 35 Atl. Rep. 526. to set up the invalidity of such com-
43 Westerly W. W. Co. v. West- pany's organization. Wyandotte
erly, 80 Fed. Rep. 611. See West- Electric Light Co. v. Wyandotte,
erly W. W. Co. v. Westerly, 75 Fed. 124 Mich. 43; 82 N. W. Rep. 821;
Rep. 181; 76 Fed. Rep. 467. Atlantic City W. W. Co. v. Reed,
44 Smith V. Westerly. 19 R. I. 50 N. J. L. 605; 15 Atl. Rep. 10.
437; 35 Atl. Rep. 526. 46 Walla Walla v. Walla Walla
45 State V. Cincinnati, etc., Co., Water Works Co., 172 U. S. 1 ; 19
18 Ohio St. 262; Cincinnati Gas- Sup. Ct. Rep. 77; Logansport, etc..
light and Coke Co. v. Avondale, 43 Gas Co. v. Peru, 89 Fed. Rep. 185;
Ohio St. 257; 1 N. E. Rep. 527. Southwestern Missouri Light Co. v.
A city dealing with a gas com- Joplin, 113 Fed. Rep. 817.
500 OIL AXD GAS.
§452. Monopolistic clause does not avoid whole contract.
A clause to furnish gas or water in which is an objectionable
monopolistic clause will not avoid the whole contract. The
agreement to pay for the gas or water remains in force and the
city or town entering into the contract is bound thereby.*^
§453. Enjoining passage of ordinance.
A court has no power to enjoin the passage of an ordinance
granting to a second company a franchise which is a direct vio-
lation of a previous grant made by it, or is in violation of a
statute giving such an exclusive franchise. The court will wait
until a contest may aAje between the claimants under the two
franchises or in some other way arising after the ordinance has
been enacted.*^
§454. Forfeiture of exclusive franchise.
A gas or water company given an exclusive privilege to sup-
ply a city with gas or water will lose such privilege, so far as it
is exclusive, unless it complies with the duty imposed upon it
to furnish gas or water. It must provide adequate mains for
ihe delivery of gas or water to all parts of the city in sufficient
quantities for the wants of the inhabitants ; not, however, being
comjD€lled to enter those regions where the number of consumers,
and where public lights or water are not needed, or will be so few
as to make the cost of supplying them out of all proportion to
the amount of the income derived from the sale of gas or water.*"
And before a court will protect it in its exclusive franchise it
47 Illinois Trust and Savings Bank Moines, 44 * la. 505; Montgomery
V. Arkansas City, 76 Fed. Rep. 271; Gaslight Co. v. Montgomery, 87 Ala.
40 U. S. App. 257; 22 C. C. A. 171; 245; 6 So. Rep. 113; 4 L. R. A.
34 L. R. A. 518; Jackson County 616.
Horse Ry. Co. v. Interstate Rapid 4o New Orleans Water \Yorks Co.
Transit R. R. Co., 24 Fed. Rep. 306; v. Rivers, 115 U. S. 074; 6 Sup. Ct.
Levis V. Newton, 75 Fed. Rep. 884. Rep. 273; New Orleans W. W. Co.
48Des Moines Gas Co. v. Des v. Ernst, 32 Fed. Rep. 5.
MONOPOLISTIC GEAXTS AND CONTRACTS. 501
must show some honest and active efforts to assert and exercise
the right claimed by it.^°
§455. Exclusive franchise for artificial gas does not exclude
natural gas.
We have an illustration how strictly an exclusive franchise is
construed in several natural gas cases. Thus an early statute
in a State authorized the giving to a corporation the exclusive
right to supply a town with gaslight, and to erect the necessary
buildings to manufacture and distribute the gas. It was held
that this exclusive franchise did not prevent the town giving to
a natural gas company the right to furnish gas, although such
company would supply gas for lighting purposes."'
§456. Extension of time for completion of work. Additional
requirements.
If a gas or water company fails to complete the works it has
undertaken, in compliance with the requirements imposed upon
it by the city, such city may impose additional terms or exact
additional requirements in extending the time for the comple-
tion of such works.^"
50 It will not be permitted to copy 529; 18 Pa. Co. Ct.Rep. 223; John-
the conduct of the "dog in the ston v. People's, etc., Gas Co. (Pa.),
manger." Scranton Electric Light 7 Atl. Rep. 167; 5 Cent. Rep. 564.
and Heat Co. v. Scranton, etc., Co., For analogous cases, see Malone
3 Pa Co. Ct. Rep. 628. v. Lancaster, etc., Co., 182 Pa. St.
51 Warren Gaslight Co. v. Penn- 309; 40 W. R. C. 434; 1.5 Nat. Corp.
svlvania Gas Co.. 161 Pa. St. 510; Rep. 98; 14 Lane. L. Rev. 321; 3/
29 Atl. Rep. 101; Hagan v. Fay- Atl. Rep. 932; Wilkes-Barre Light
ette Gas-Fuel Co., 21 Pa. Co. Ct. Co. v. Wilkes-Barre. etc., Co. (Pa.),
Rep 503; 29 Pittsb. Leg. J. (X. S.) 4 Kulp 47: Emmerson v. Common-
wealth. 108 Pa. St. Ill; Carother's
229.
\ charter to "manufacture and Appeal. 118 Pa. St. 468; 12 Atl.
sell calcium carbide and its product. Rep. 314; 11 Cent. Rep. 48; Sterl-
and purposes incident thereto and ing's Appeal. Ill Pa. St. 35; 2
connected therewith," does not come Atl. Rep. 105; 2 Cent. Rep. 49 r In re
in conflict with one giving an ex- Johnston (Cal.). 69 Pac. Rep. 9.3.
elusive franchise for the supply of 52 Eureka Light-Ice Co. v. Eure-
gaslight. Lebanon Gas Co. v. Leb- ka. 5 Kan. App. 669; 48 Pac. Rep.
anon Fuel, etc., Co., 5 Pa. Dist. Rep. 935.
502 OIL AST) GAS.
§457. Gas works built under void grant or franchise.
Ill a iiuiiiIk'i- of instances gas and water works have been built
under contracts with municipalities extending exclusive rights
to furnish gas or water for the city and its inhabitants, sonic-
times in perpetuity, but usually for a long term of years; and
under these gTaiits the companies have gone on at a great ex-
pense, built their works, bonded them, and furnished gas or wa-
ter for several years, before the question of validity of the grant
or franchise was raised. Usually the question in such instances
is raised in a suit against the municipality to recover pay for
gas or water furnished, and then it is quickly settled, the court
holding that in such an instance the validity of the grant can-
not be litigated.^" Bilt in other instances where the question
is ])roperly raised the courts will not hold the contract void
until, at least, after a reasonable time has expired after it
was made, especially where the municipality's conditions have
not changed as to population and assessed valuation, where
no better facilities are offered upon more reasonable terms, and
where the company would suffer irreparable loss.^*
§458. Municipality's right to purchase existing works is optional.
Statutes frequently give municipalities the power to purchase
from a private company putting in works under contract with
them, its plant, and providing machinery to determine the price
that shall be paid. Usually in all cases it is entirely optional with
the municipalities to purchase these plants.^^ In such instances
53 state V. Great Falls, 19 Mont. 158; Morristown v. East Tennessee,
518; 49 Pac. Rep. 15; Sandy Lake etc., Co., 115 Fed. Rep. 304; Bein-
V. Sandy Lake, etc.. Gas Co., 16 Pa. ville Water Supply Co. v. Mobile
Sup. Ct. Rep. 234. (U. S.). 22 Sup. Ct. Rep. 820; af-
54 Columbus Water Co. v. Col«m- firming 175 U. S. 109; 20 Sup. Ct,
bus, 48 Kan. 378 ; 29 Pac. Rep. 762 ; Rep. 40.
15 L. R. A. 354; Illinois Trust and 55 Skaneateles Water Works Co. v.
Savings Bank v. Arkansas City, 76 Skaneateles, 161 N. Y. 154; 55 N.
Fed. Rep. 271 ; 40 U. S. App. 257; E. Rep. 562; affirming 33 N. Y. App.
22 C. C. A. 171: 34 L. R.- A. 51S; Div. 642; .54 N. Y. Supp. 1115;
Anoka W. W., etc., Co. v Anoka, Crescent City Gaslight Co. v. New
109 Fed. Rop. 580, bondholder's Orleans Gaslight Co., 27 La. Ann.
rights. See Madison v. Morristown, 138.
etc., Co. (N. J. Ch.), 52 Atl. Rep.
MOXOPOLISTIC GEAXTS AXD CONTRACTS. 503
the city must exercise its option at the time designated in the
contract. If the price to be paid is to be settled by arbitrators
to be chosen, one by the city and the other by the company, for
instance, the city cannot insist that the company enter into an
arbitration before such city has determined to exercise its option
and buy the works. If the company refuse to select an arbi-
trator, the city may insist that it has forfeited its franchise,
especially is this true where the grant is illegal because it is
an exclusive one.^*'
§459. Unlawful combinations between gas companies.
Combinations between two gas or lighting companies some-
times assume monopolistic features and are void. Thus an
agreement between two companies that neither would furnish
gas to the consumers of the other is void, and furnishes a basis
for a monopoly ; and because of that fact the courts may de-
clare their franchises forfeited.^^ So much so is a contract of
this character void that a person undertaking to secure an agree-
ment between two companies to divide the territory of the city
between them, and the one not to compete in the territory as-
signed to the other, cannot recover for his services.^*
§460. Granting privilege to use streets does not require a general
ordinance — general ordinance regulating streets.
A municipal authority, however, whether it is forbidden or
not empowered to give an exclusive grant to a gas company to
56 Montgomery Gaslight Co. v. Rep. 1089; 53 L. R. A. 413; 74 Am.
Montgomery, 87 Ala. 372; 5 So. St. Rep. 314; Consumers' Oil Co. v.
Rep. 735; 4 L. R. A. 616. Nunnemaker. 142 Ind. 560; 41 N. E.
The bringing of a suit for the Rep. 1048; 51 Am. St. Rep. 193;
appointment of commissioners to as- Gibbs v. Consolidated Gas Co., 130
sess the value of the property to be U. S. 396; 9 Sup. Ct. Rep. 553;
purchased by the city is sufficient Chicago Gaslight and Coke Co. v.
evidence of a dispgreement between People's Gaslight and Coke Co., 121
the company and the city as to the 111. 530; 13 X. E. Rep. 169; Pitts-
value of such property. Braintree burgh Carbon Co. v. Philadelphia
Water Supply Co. v. Braintree, 146 Co., 130 Pa. St. 438; 18 Atl. Rep.
Mass. 482; 16 N. E. Rep. 420. 732.
57 State V. Portland Natural Gas ss Gibbs v. Consolidated Gas Co.,
and Oil Co., 153 Ind. 483; 53 N. E. 130 U. S. 396; 9 Sup. Ct. Rep. 553.
504 OIL AND GAS.
use its streets, may practically achieve the same end, by grant-
ing to a special company the right to use its streets, and refrain-
ing from granting it to others. Such action of the municiiDality
is not void, nor does it violate any clause of a constitution or
statute forbidding the granting of special privileges. Speaking
of an ordinance of this character, the Supreme Court of Indiana
said : ""It does, it is true, gTant a right to use the streets of the
town, but it does not exclude their use by competing companies.
It does not throttle competition, for it merely grants a license
to use the streets. It cannot be held that permission to one
company to use the streets excludes others ; on the contrary, the
grant of such a license leaves plenary power in the municipality
to grant licenses to rival companies at any time. A licensee
wdio obtains a right to use streets does not obtain a monopoly.
The right to grant other license remains open and unobstructed.
Not only does the right to license other companies remain open,
but the right to prescribe reasonable police regulations by a
general ordinance also remains unimpaired. A private corpora-
tion that obtains a license to use the streets of a municipality
takes it subject to the power of the municipality .to enact a gen-
eral ordinance ; for a governmental power, such as that exercised
in enacting police regulations, cannot be surrendered or bar-
tered away even by express contract. But there is here no
attempt to surrender or barter aAvay this governmental power,
for there is nothing more than a license to use the streets of the
town. . , . Where a municipality attempts to regulate the
mode of using its streets it must do so by a general ordinance,
but it does not follow that a general ordinance is essential to
the validity of a license granted to a designated company. It
is one thing to sj^ecially license a corporation to lay pipes in a
street or construct electric lines, and quite another to regxilate
I the entire subject of supplying light, fuel, or the like, for where
the munici])al authorities assume to legislate upon the entire
subject a general ordinance is required; but where they simply
grant a privilege to use the streets, and do not undertake to regu-
late the entire subject, a general ordinance is not indispensably
necessary to authorize the licensee to use the streets. But
MOA^OPOLISTIC GEAXTS AST) COXTRxVCTS. 505
neither bv a general ordinance nor by a special license can dis-
criminations be made or monopolistic privileges be created.
It is, however, often true that a privilege is in its nature
monopolistic, and, . . . when this is so, the grant of the
franchise is of necessity the part of monopolistic right; but in
such a case the corporate grant does not create the monopoly.
In this instance there is nothing more than the grant of a
license ; there is no attempt to create exclusive privileges, nor
any attempt to regulate the entire subject. The rights ac-
quired under a mere permissive license are subject to control
under the delegated governmental power vested in the munici-
pality, for no licensee can acquire rights not subject to regu-
lation under the police ix)wer delegated to the local govern-
mental instrumentalities. We have here no question of con-
tract rights, for the question presented by the record is whether
a special ordinance granting a permissive license to a designated
corporation is effective." ^^ In a case arising in the Federal
Circuit Court of the Eastern District of Michigan it was said :
" It is true it may, in effect, gi'ant such exclusive right by re-
fusing to any other company the franchise or privilege it has
granted to one ; but this presupposes a continued and abiding
consent on the part of the city to keep alive its contract, and
it is quite distinct from the right of the city to surrender its
power to make another contract, and to vest in the plaintiff the
right to determine for itself whether a rival company shall be
permitted to enter its domain." '^'^
§461. Contracts for light, length of term.
Another kind of municipal grants or contracts having in them
monopolistic features is a contract to furnish a municipal-
ity all the light it needs for a term of years. These
contracts in a measure are exclusive grants ; for l)y them the gas
companies usually have the right for a term of years to supply
59 Crowder v. Sullivan, 128 Ind. go Saginaw Gaslight Co. v. Sagi-
486; 28 N. E. Rep. 94; 1.3 L. R. A. naw. 28 Fed. Rep. 529; IG Am. and
647. See also State v. Cincinnati Eng. Corp. Cas. .562. See Garrison
Gaslight and Coke Co., 18 Ohio St. v. Chicago, 7 Biss. 480.
262.
506 OIL AND GAS.
the municipality with all the gas or light it needs and also its
inhabitants ; and frequently they contain agreements not to give
similar grants to other compianies while the contract remains in
force. A case of this character arose in Indiana where it has
been declared that a municipality cannot give an exclusive
grant to a gas company, although this declaration was made
many years after the case here referred to arose. A gas com-
pany was empowered by its legislative charter '' to manufacture
and sell gas . . . for the purpose of lighting " a certain
city or its streets, " and any buildings, manufactories, public
places, or houses therein contained," " for the term of twenty
years." The same charter authorized the city, " in its corporate
capacity ... to contract with the said company to fur-
nish gas for the purpose of lighting the streets, engine houses,
market houses, or any public places or buildings, and may pro-
vide means to pay for the same in such manner as they may
deem best." The general law for the incorporation of cities of
a later date empowered them " to construct and establish gas
works, or to regulate the establishment thereof by individuals
or companies, or to regulate the lighting of streets, public
grounds and buildings, and to provide, by ordinance, what part,
if any, of the expense of lighting any street or alley shall be
paid by the owners of lots fronting hereon." In 1876 the city
entered into a contract with a gas company, in the form of an
ordinance, whereby the latter agi-eed to furnish gas of a quality
specified in an ordinance of 1866 for the supply of all the street
lamps, city offices, engine houses, and all other places where gas
was required for the use of the city in its corporate capacity,
in consideration of an agreed compensation, the contract to be
in full force and operation^for the term of five years from its
date, and a further term of five years, if the city so elected.
It was agreed that this contract of 1876 should not be taken to
alter, modify or suspend the provision of a contract then in ex-
istence between them, entered into by them in 1866 for a term
of twenty years, except so far as to give effect to its terms ; and
when the contract of 1876 terminated, either by the expiration
of the time limited, or by the failure or refusal of the city to
MOiN^OPOLISTIC GRAXTS AXD COXTEACTS. 507
perform its part, then the contract of 1866 was to " stand and
continue for the parties hereto ... in all respects as
though this contract had never been made." The city had the
power under these contracts to clean and repair, at the com-
pany's expense, the street lamps if it did not ; and to make
certain deductions for failure to light lamps and keep them
burning. The city denied the validity of the contract of 1876 ;
but the court upheld it, saying that it was undoubtedly valid.
Xo discussion was entered upon concerning the contract of 1866,
but it seems to be conceded that it was valid. "■ By the con-
tract we are considering," said the Supreme Court, '' the city
of Indianapolis is not restricted in any respect from the legiti-
mate exercise of its public powers touching the subject matter
of the contract, but expressly reserves its administrative author-
ity to keep the posts, lamps and burners in good order and
repair, if the gas company should fail to do so ; and also re-
serves the right to test the quality of the gas furnished by the
company, and the capacity of the burners, at all times. We
cannot see wherein, by the contract, the city is restricted from
extending its streets, establishing an additional number of
lamps obtaining gas from other sources, or establishing its own
gas works, as the public interests might require, and all this it
can do without violating its contract. Xo exclusive right is
granted to the gas company." ®^ It will be observed that in this
61 Indianapolis v. Indianapolis, upon between Gale and the lessees,
etc., Co., 66 Ind. 396. the rent to be paid to him, and the
The court called attention to the contract to run ten years. The vil-
case of Garrison v. Chicago, 7 Biss. lage was to appoint a manager of
480, relied upon by the city, where the market, and there was to be no
a ten-year contract was declared oflier market house in the village,
void, to the fact that it had been and no marketing elsewhere during
declared void because no appropria- market hours. " The vice," said the
tion for it had been previously made Indiana court, " of this contract lay,
as the city charter expressly re- not in its agreement to have a mar-
quired. The court also pointed out ket house built, but in the fact that
that the case of Gale v. Kalamazoo, the public authorities had under-
23 Mich. 344, was an instance where taken to part with their control over
the city has authorized Gale to build it when built, and place its man-
a market house, to be put under agement in the power of private
the control of the city authorities, speculators. This they could not
the stalls to be rented as agreed do."
508 OIL AND GAS.
case the court held the five-year contract valid, although it
was devoid of the exclusive features so often characteristic of
these contracts, such as the contracts of 18G6. • Statutes fre-
quently empower cities to make exclusive contracts with gas
and water companies, for a certain number of years, and these
are upheld hy the courts ; but the statutes are also limitations
upon the powers of cities, for the limitation therein named can-
not be exceeded; but if the attempt is made to exceed that
limit, the entire contract will not be invalid if the excess can be
distinctly separated from the remainder of the contract. Thus
where a statute permitted a city to enter into a contract for
twenty years, and a city entered into a contract for twenty
years with a provision that it should remain in force for an
additional twenty years if the city had not purchased the works
before the expiration of the first term, the contract was held
valid for the original twenty years.*'" A contract for thirty
years has been held not so long a time that the court would
say as a matter of law it was unreasonable.*'^ A statute em-
powering a municipality to contract for water from year to
year, is sufficient to uphold a contract to extend for twenty
years from the time of making it.*'"* A contract to take a cer-
62 Neosho City Water Co. v. Ne- required. Lawrence v. Hennessy,
osho, 136 Mo. 498; 38 S. W. Rep. 165 Mo. 659; 65 S. W. Rep. 71".
89; -State v. Laclede Gaslight Co., While an exclusive grant for
102 Mo. 472; 14 S. W. Rep. 974; twenty years is void so far as the
15 S. W. Rep. 383. See Manhattan limit is concerned; yet the company
Trust Co. V. Dayton, 59 Fed. Rep. under it have the right to put its
327; 16 U. S. App. 588. pipes in the street, no limit being
6 3 Oconto City Water Supply Co. fixed when its rights shall cease.
V. Oconto, 105 Wis. 76; 80 N. W. Hamilton v. Hamilton Gaslight Co.,
Rep. 1113; Fergus Falls Water Co. 11 Ohio Dec. 513.
V. Fergus Falls, 65 Fed. Rep. 586; In the following cases the con-
Des Moines etc., R. R. Co. v.-»Des tracts were held invalid, not bc-
Moines, etc., Co., 73 la. 513; 33 N. cause of the length of the term, but
W. Rep. 610; 35 N. W. Rep. 602 (25 because the city had no power to
years ) . execute an exclusive contract :
6-t Light, H. and W. Co. v. Jack- Long v. Duluth, 49 Minn. 280; 51
son, 73 Miss. 598; 19 So. Rep. 771. N. W. Rep. 913 (30 years); Bren-
If the city council are expressly ham v. Brenham Water Co., 67 Tex.
authorized to grant an exclusive 542; 4 So. W. Rep. 143 (25 years) ;
privilege, the consent of the people Davenport v. Kleinschmidt, 6 Mont,
of the city to such franchise is not 502; 13 Pac. Rep. 249 (25 years).
MONOPOLISTIC GRxVNTS x\.ND CONTRACTS. 509
tain amount of gas for a special period of time, leaving it the
unrestricted right to either manufacture or purchase as much
as it desires, is not a monopolistic contract, and is not invalid
even in those States where the statute or constitution prohibit
exclusive grants, and contracts,''^ The rule that members of a
legislative bodv of a city may not so act or contract as to de-
prive their successors of the unimpaired governmental or legis-
lative power does not apply to the exercise of the business or
property proprietary^ powers of the city, such as is exercised in
entering into a contract for gas or water/®
§462. Dating contract ahead.
It is a favorite scheme of promoters to secure an exclusive
right to occupy the streets of a city or town for the purjx)se of
speculation, and not with the intention of themselves putting
in a plant, unless they are not able to dis}>ose of the rights they
have obtained. If these grants do not require completion of
the works for several years, then the municipal authorities in
office have, in a measure at least, anticipated and exercised the
authoritv of future officers of the citv or town — a thina: neither
the legislature nor the courts are dis|X)sed to sanction. Courts,
therefore, are inclined to construe grants giving rights to occupy
streets and maintain plants as require immediate action on the
part of the grantees, or within a reasonable time thereafter.
Thus where a statute provided that from and after its passage
any gas company should have the power to extend its mains or
lay its pipes for conducting gas in any of the public highways
of the towns where located, with the written consent of the pub-
lic board of improvement, and under such reasonable regulations
as it might prescribe, it was held that when such a company
65 Vincennes v. Citizens' Gaslight grants in these cases forbade the
Co., 132 Ind. 114; 31 N. E. Rep. city or State dealing with any other
573; 16 L. R. A. 485; Valparaiso person or company.
V. Gardner, 97 Ind. 1; 49 Am. Rep. 6 6 Illinois Trust and Savings Bank
416. The court calls attention to v. Arkansas, 76 Fed. Rep. 271; 22
Davenport v. Kleinschniidt, supra, C. C. A. 171; 40 U. S. App. 257; 34
and Matter of Union Eerry Co., 98 L. R. A. 518.
N. Y. 139, by pointing out that the
510 OIL AND GAS.
seeks to extend its mains or lay its pijjes it was the duty of
such board to then exercise its judgment as to whether consent
shall be given ; and it could not contract in advance that no other
could have its consent to extend its mains or lay its pipes."^
c7Parfitt V. Furgnson, 3 N. Y. N. Y. Supp. 466; 159 N. Y. Ill; 53
App. 176; 73 N. Y. St. Rep. 621; 38 N. E. Rep. 707.
CHAPTER XXIII.
STREETS AND HIGHWAYS.
§463. Definitions. — Street a highway.
§464. Control of streets or highways.
§465. Use for private purposes.
§466. Consent of municipality to occupy streets necessary.
§467. Right to grant a franchise not property of municipality.
§468. When consent of municipality not necessary.
§469. Nature of a grant to occupy streets or highways. — A mere privi-
lege.
§470. Nature of a grant to occupy streets or highways. — A franchise.
§471. Acceptance of grant.
§472. Gas company must comply with conditions of grant.
§473. Grant to occupy streets construed strictly.
§474. What streets company may occupy. — Sidewalk.
§475. Territory annexed to another municipality after grant made.
§476. New streets, right to occupy. — No streets specified.
§477. Sale or assignment of right in streets.
§478. Change of use of franchise. — Natural gas.
§470. Ordinance void. — Estoppel.
§480. Gas company occupying streets is subject to municipal regulations.
§481. Injunction to protect company's rights in streets.
§482. Grant before company is organized.
§483. Length of grant of franchise.
§484. Termination of life of corporation before expiration of franchise.
§48.5. Consolidation of gas companies.
§486. Town becoming a city.
§487. Injunction to restrain laying of pipes in streets.
§488. Pipe laid in street unlawfully laid out.
§489. Revocation of grant.
§490. Forfeiture of right to occupy streets for failure to perform duty.
§491. Action to declare forfeiture. — Quo icarranto.
§492. Waiver of right to declare forfeiture.
§493. Changing grade of streets.
§494. Tearing up streets. — Obstruction. — Indictment.
§4*95. Cutting into modern pavements. — Repairs. — Permission.
§496. Injury to pipes in repairing streets.
§497. Support of gas mains.
§498. Gas boxes in street.
511
512 OIL AXD GAS.
§499. Leaving gasposts in street.
§500. Pipes in streets not an additional burden.
§501. Pipes laid in navigable river.
§502. Grant of right to use suburban liighway. — Compensation to abutt-
ing land owner.
§503. Condemnation of land owTier's interest in highway.
§504. Land owner acquiescing in occupation of rural highway. — Injunc-
tion. — Estoppel.
§505. Pipe lines in country highway an additional burden on easement.
§500. Consent of county. — Public highways, crossing.
§507. Revocation of license to use highway.
§508. Abutting land owner removing pipe lines.
§500. Company may not remove pipes unlawfully laid in rural higliway.
§510. Pipes on surface of highway of street.
§463. Definitions. — Street a highway.
The tenn '' highway " is generic. It inchides all public
ways, and means a way which every person, whether an inhab-
itant or stranger, may use for ])assage or traffic. It includes
streets in a city or town, turnpikes, plankroads, footways,
sidewalks and bridges.^ A ]ml)lie alley is as mnch a public
highway as a public street. In usage the term street is ap-
plied to ways in a city or town, and is seldom applied to a
public way in the country.^ But as has been aptly said, " Every
street is a higliway, but every higliway is not a street."^ A
cid de sac may be a public highway, according to the later and
better considered cases,* depending, however on the facts in
each instance.^
§464. Control of streets or highways.
Control of streets in a city or town is almost universally
vested in the city or towm ; *^ and it is an anomalous case where
1 Mobile and Ohio R. R. Co. v. 12; Brace v. New York Central R.
Davis, 130 111. 146; 22 N. E.-Rep. R. Co.. 27 N. Y. 269; Heiple v. East
850; State v. Wilkinson, 2 Vt. 480; Portland. 13 Ore. 97.
Davis V. Smith, 130 Mass. 113; * Adams v. Harrington, 114 Ind.
St.ite V. Mathis, 21 Ind. 277; State 66; 14 N. E. Rep. 603; Sheafe v.
V. Berdetta, 73 Ind. 185; 20 Am. People, 87 111. 189; 29Am. Rep. 49;
Law Reg. 342; 38 Am. Rep. 117. People v. Kingman, 24 N. Y. 559.
2 A notable exception is the old s state v. Frazier, 28 Ind. 196;
Roman road in England, called Bateman v. Bluck. 14 Eng. L. and
" Walling Street." Eq. 69.
3 Indianapolis v. Croas, 7 Ind. 9, *5 Hughes v. Momence, 163 111.
STREETS AXD HIGHWAYS. 513
this is not true/' In the case of public country highways, control
over them is usuallv vested in the county*'^ although there is
some variance from this rule. The entire matter is usually
the subject of statutory provisions; and such statutes must
be considered in determining the power of a city, town or
county over the streets or highways and the rights of a gas
com])any therein.^
§465. Use for private purposes.
Public highways and streets are for the use of the public,
and not for private use. An individual in passing along them,
is not devoting them in the strict sense of the term, to his oa\ti
private use. "A grant of public street or highway through
either town or country, cannot be considered otherwise than
as a gi-ant to the public. It confers no exclusive right ; but
ex vi termini, absolutely excludes the idea of private appro-
priation." *' The same court from which this quotation is
made has declared that " public highways belong, from side
to .side and end to end, to the public " ; * and this necessarily
carries with it the corollary that no one can take a public
highway for his own private use ; for if he do, the public are
exclud(Ml from it by his occupation of its surface. "A man
535; 45 N. E. Rep. 300; .State v. light the streets; to provide a sup-
St. Louis, 145 Mo. 551; 46 S. W. ply of water for the use of the in-
Rep. 981; Sharp v. South Omaha, habitants," does not confer the right
53 Xeb. 700; 74 X. W. Rep. 76; to pass an ordinance authorizing a
Coffeyville, etc.. Co. v. Citizens', etc., gas company to hiy mains in the
Co.. 55 Kan. 173; 40 Pac. Rep. 326; streets to supply gas for domestic
Mueller v. Egg Harbor City, 55 X. purposes. Ransberry v. Keller, 9
J. L. 245; 26 Atl. Rep. 89; Chi- Pa. Co. Ct. Rep. 299.
cago. etc.. Co. v. Lake. 130 111. 42; L'nder the "general welfare"
22 X. E. Rep. 616; affirming 24 111. clause, a city cannot confer a fran-
App. 346. chise for the owning and operating
<5 Bennington v. Smith, 29 Vt. of water works, and for other things
254. See Philadelphia Co. v. Free- collateral thereto. Xational Foun-
port, 167 Pa. St. 27; 31 Atl. Rep. dry, etc.. Works v. Oconto Water
571. Co., .52 Fed. Rep. 29.
*6 Consumers' Gas Trust Co. v. *" Conner v. Xew Albany, 1
Huntsinger, 12 Ind. App. 285; 40 Blackf. 43.
N. E. Rep. 34; Board v. Indianap- s State v. Berdetta, 73 Ind. 185;
olis. 132 Tnd. 27: 33 X. E. Rep. 972. 20 Am. Law Reg. 342; 38 Am. Rep.
■^ A power in a mvmicipality "to 117.
514 OIL AXD GAS.
has no right," was said in an old case, " to eke out the inconven-
ience of his own premises by taking the public highway intr>
his timber yard." *^ Thus it has been held that a fruit stand
in a street is a nuisance 2}er se " and so are hayscalcs,"^ a stair-
way,^" a railroad."
§466. Consent of municipality to occupy streets necessary.
Where a municipality has control over its streets and public
ways, its consent to occupy snch streets and ways with gas
pipes or mains must be obtained before a company can lay them
therein. Any such occupation without such consent is illegal.^'
But the building of a plant for the manufacture of gas, and
not for distribution^is a very different thing, and permission
from the city or town to build it is no more necessary than if it
were any other kind of a manufacturing establishment. It
cannot be said that the manufacture of gas is so dangerous as
the manufacture of gun powder or dynamite ; and that its
manufacture comes within the power of a municipality to
prevent the manufacture and storage of dangerous and highly
explosive materials within its boundaries. Although a city
has no express power itself to lay pi|>es in its streets, yet under
a general power or right to legislate fully in regard to lighting
its streets, authority by implication is given it to direct by
ordinance that gas pipes be laid in the streets for the purpose
*8King V. Jones, 3 Camp. 230; the city does not use the water in
Rex V. Cross, 3 Camp. 224. its public buildings or supply its
9 State V. Berdetta, supra. hydrants. Smith v. Lincoln. 170
*o Emerson v. Babcock, 66 la. Mass. 488 ; 49 N. E. Rep. 640.
257; 55 Am. Rep. 273. 12 Carlisle Gas and Water Co. v.
10 Pettis V. Johnson, 56 Ind. 139. Carlisle Water Co., 182 Pa. St. 17;
11 Commonwealth v. Nashuar etc., 37 Atl. Rep. 821; Appeal of City of
R. R. Co., 2 Gray 54; Common- Pittsburgh (Pa.), 7 Atl. Rep. 778;
wealth V. Old Colony, etc., R. R. Chicago, etc., v. Lake, 130 HI. 42;
Co., 14 Gray 93; Schwede v. Hem- 22 N. E. Rep. 616; affirming 24 111.
rich Bros. Brewing Co. (Wash.), 69 App. 346. Under the constitution
Pac. Rep. 362. of California (Art. 11, Sec. 19). a
The use of water works is a pub- permit is not necessary. In re
lie one. if every inhabitant of the Johnston, 137 Cal. 115; 60 Pac.
city along the pipe lines can obtain Rep. 973.
water if he desires it even though
STREETS AXD HIGHWAYS.
515
of lighting. In fact, it is said, a municipal corporation has
the inherent jwwer to lay gas-pipes in its streets for the
benefit of its inhabitants.^^ A statute which anthorizes cor-
lX)rations to exercise all powers necessary to carry into effect
the objects for which they are formed does not authorize a gas
company, incorporated for a particular town, to lay its pipes
in the streets of such town without the consent of the municipal
authorities.^*
13 Strawbridge v. Philadelphia
(Pa.), 13 Rep. 216; 13 Phila. 173.
As to whether a gas plant is a dan-
gerous agency, see sec. 389 and the
chapter on Nuisances.
As to what nninicipal body grants
permission to occupy the streets of
New York City, see Ghee v. North-
ern Union Gas Co., 158 N. Y. 510;
53 N. E. Rep. 692, reversing 34 X.
Y. App. Div. 551; 56 N. Y. Supp.
450.
That a gas company must first
obtain permission from a munici-
pality to occupy its streets, see ilis-
souri V. Murphy, 170 U. S. 78; 18
Sup. Ct. Rep. 505; Witcher v. Hol-
land W. W. Co., 66 Hun 619; 20
N. Y. Supp. 560; Philadelphia Co.
V. Freeport. 167 Pa. St. 279; 31
Atl. Rep. 571; Carlisle Gas and
Water Co. v. Carlisle Water Co.,
182 Pa. St. 17; 37 Atl. Rep. 821.
14 Chicago, etc.. Co. v. Lake, 130
HI. 42; 22 N. E. Rep. 616, affirming
24 111. App; 346.
A consent secured by bribery is
invalid. Keogh v. . Pittston. et«.,
Co., 5 Lack. Leg. N. 242.
An ordinance of a borough in
Pennsylvania authorizing a gas com-
pany to lay its mains in the streets
was held void, where the borough
had no power to authorize the sup-
plying of gas to its inhabitants.
Ransberry v. Kellar, 9 Pa. Co. Ct.
Rep. 299.
A statute empowering a munici-
palitj' to grant the use of its streets
lo lay pipes and drains to supply
heat and power, does not authorize
the grant of a use to lay pipes to a
company for "he benefit of its own
private use for an automatic pack-
age delivery, operated by compressed
air. Ampt v. Cincinnati, 6 Oliio N.
P. 401.
The use must be a public one.
Witcher v. Holland W. W. Co., 66
Hun 619; 20 N. Y. Supp. 560;
Schwede v. Hemrich, etc., Co.
(Wash.), 69 Pac. Rep. 362.
Where no question of an exclu-
sive franchise is involved, or a mu-
nicipality has no power to grant it,
a company may be authorized to lay
its pipes, in a s<:reet in which an-
other company has its pipes, or the
city may lay its own pipes there.
Hughes V. Momence, 163 111. 535;
45 N. E. Rep. 300.
The borough Act of 1897 of New
Jersey, providing that the borough
council may prescribe the manner
in which individuals or corporations
may exercise any privilege granted
them in the use of the street, only
authorizes the regulation, not the
prohibition, of such privileges. An
ordinance giving the street commit-
tee of the borough arbitrary power
to refuse a permit to tear up the
streets for the purpose of laying
pipes therein is void. Madison v".
Morristown (N. J. Ch.), 52 Atl.
Rep. 158.
516 OIL AND GAS.
§467. Right to grant a franchise not property of municipality.
The right of a municipality to grant permission to a gas
company to lay down pipes iu its streets to silpply gas is not
a part of the municipality's property, to which the corporate
authority of such municipality is to revert for purposes of
revenue. The municipality is not hound to sell such j>ermis-
sion or treat it as a part of the municipal property which is
to be used for the purposes of municipal revenue.^^
§468. When consent of municipality not necessary.
Occasionally the charter of a gas or water company is so
drafted by the legislature as to give the company the right to
enter upon and lay**its pities or mains in the streets of the
municipality for which it is chartered without the consent
of the municipal authorities. Thus where the charter of a
company expressly authorized it to lay its pipes under any
highway or street of a particular city, it was held that the
company need not first obtain the consent of the city before
putting down its mains in the streets, and that a statute giving
the board of public works of the city exclusive control over
the use of all the streets of such city did not repeal that pro-
vision of the company's charter conferring upon it the right
to .so lay its pipes. ^'^
Where a statute provided that a company might " lay its
wires underground as the same may be necessary and in so
many streets, squares, highways, lanes and public places as
A power to grant a privilege or Permission to lay its 'pipes in the
franchise " by ordinance " in Ten- streets of one municipality cannot
nessee cannot be made by a mere be so stretched oy a gas company
resolution; and if such a gratflt is -as to enable it to lay them in an-
made by ordinance, it cannot be other and distinct municipality,
amended by a resolution. Morris- Madison v. Mo^risto^vn Gaslight Co.
town V. East, etc., Co., 115 Fed. (X. J.). 54 Atl. Rep. 439.
Rep. 304. 15 Smith v. Metropolitan Gaslight
In Washington only the city coun- Co.. 12 How. Pr. 187.
cil can make the grant, not the us Louisville v. Louisville ^Yatpr
board of public works. Schwede v. Co., 105 Ky. 754 ; 40 S. W. Rep.
Hemrich Bros., etc., Co. (Wash.), 766; Atlanta v. Gate City Gaslight
69 Pac. Rep. 362. Co., 71 Ga. 106.
STREETS AND HIGHWAYS.
517
may be deemed necessary for the purpose of supplying elec-
tricity and gas for light, power and heating, the whole how-
ever without doing any unnecessary damage and providing all
proper facilities for free passage through the said streets,
squares, highways, lanes and public places while the works are
in progress," it was held that the power to break the surface
of the streets, and to excavate them for the purpose stated in
the statute was such a right as would be protected by injunc-
tion, to restrain the municipality from interfering with its
laying the pipes in the streets.^' A statute gave extensive pow-
ers to electric lighting companies, conferring upon them the
right to use the streets, avenues, highways and alleys in the
State for the purpose of erecting poles to sustain necessary
wires, with the proviso that no poles should be erected in any
street of any incorjoorated " city or town " without first ob-
taining from such incorjwrated " city or town " a designation
of the streets in which it desired to place such poles, and the
manner of placing the same. It was held that an electric
1" Montreal v. Standard Light
and Power Co. [1897], App. Cas.
527; 66 L. J. P. C. 113; 77 L. T.
115; Hill V. Wallasey L. B. [1894],
1 Ch. 133; 63 L. J. Ch. 1; 69 L. T.
641; 42 W. R. 81 ; 7 Pvep. 51.
In England where the Public
Health Act of 1875 vests in urban
authority only such property in the
soil of the street as is necessary for
the control, protection, and main-
tenance of the street as a highway
for public use, it confers upon them
no authority to make excavations
in the soil below the surface for the
purpose of public convenience
(Tunbridge Wells Corporation v.
Baird [1896]. App. Cas. 434; 65
L. J. Q. B. 451; 74 L. T. 385; 60
J. P. 788) ; and it was held that
an electric lighting company, which
had illegally broken up the surface
of a street within a vestry district
and placed its pipes and wires two
feet below the surface, would not
be compelled, at the suit of the
vestry, to remove such pipes and
wires, there being no continuing
trespass upon or interference with
any right of the vestry; for such
vestry did not ovm the soil at the
depth where the pipes and wires lay.
Vestry of St. Mary v. County, etc.,
Co. [1899], 1 Ch. 474; 68 L. J. Ch.
238; 80 L. T. 31; 15 T. L. Rep.
175.
For a case where a statute au-
thorized a gas company to cross a
public highway without first secur-
ing authority so to do from local
authority, althovigh not to lay its
pipes along such highways, see Con-
sumers' Gas Trust Co. v. Huntsinger,
12 Ind. App. 285; 40 X. E. Rep. 34.
A right given to lay pipes in a
street gives authority to lay lateral
as well as main pipes, and to place
gas boxes in such street. District of
Columbia v. Washington Gaslight
Co. 20 D. C. 39.
518 OIL AXD GAS.
company could place its poles in the highway of a township
without leave of the county or township authorities, the words
" city or town " not including such territories of the State.^®
A statute authorized a company to lay its conductors and mains
under all the streets of the City of Xew York, in consideration
of a reduction hy the company of the price of gas. A subse-
quent statute repealed this statute, but provided that the re-
peal should " not effect or impair any act done, or right ac-
cruing, accrued, or acquired " under the repealed act, and
that " the same may be asserted and enforced as fully and to
the same extent as if such law had not been repealed." It was
held that such company was not deprived of its right to lay
new mains necessary to complete unfinished work, and to make
connections between the mains previously laid by it.^^
§469. Nature of a grant to occupy streets or highways. — A
mere privilege.
There is much confusion in the books and opinions of courts
concerning the nature of the grant to a gas, water or other
company to occupy the streets of a municipality or a public
highway in the country with its pipes or railroad tracks. In-
18 Suburban, etc., Co. v. East A company in Pennsylvania in
Orange (N. J.), 44 Atl. Rep. 628. good faith having laid pipes in the
19 People V. Gilroy, 67 Hun. 323 ; streets of a city, without consent
22 N. Y. Supp. 271. of the city, prior to May 29. 188.5.
Where a company was authorized comes within the exception to sec.
to construct, lay and operate pneu- 16 of that Act. Appeal of Alle-
matic tubes within and between ghaney (Pa.), 11 Atl. Rep. 6.58.
cities, it was held that this did not A statute may be broad enough
by itself empower it to lay its to authorize a water company lo-
tubes along the suspension bridge be- cated in one village to lay its pipes
tween New York City and Iflhooklyn through another village, without
without the consent of the oflRcers the latter's consent, in order to
in control of it. New York Mail, reach a third village it has con-
etc, Co. V. Shea, 30 N. Y. App. tracted to supply v.ith water. Tar-
Div. 266; 51 N. Y. Supp. 563. re- rytown v. Pocontico W. W. Co.,
versing 4:J N. Y. Supp. n.51. Seo- 1 X. Y. Supp. 304.
Glasgow V. Glasgow, etc.. R. R. Co. As to California constitutional
[1895], App. Cas. 376; 64 L. J. P. provisions, see Tn re Johnston, 137
C. 171; 72 L. T. 809; .59 J. P. 788; Cal. 115; 69 Pac. Rep. 973.
11 Rep. 226.
STREETS AA"D IIIGIIWAYS. 519
deed, no writer upon the subject can escape falling into that
confusion in the use of terms as he applies them to sudi
grants. Sometimes they are called " franchises," sometimes
" privileges," occasionally " grants." Now it is obvious to
any one reflecting on the subject that a franchise is a very
different thing from a contract — although a franchise has
within it the elements of a contract — a license or a privilege.
The granting of a franchise is the act of a sovereign power.
An old definition of it is that it " is a royal privilege or branch
of the king's prerogative subsisting in the hands of the subject,
and being derived from the crown must arise from the king's
grant." '"** Franchises has been defined by the Supreme Court
of the United States as " special privileges conferred by gov-
ernment upon individuals, and which do not belong to the
citizens of the country generally, of common right." "^ In a
Xew York decision is both a definition and description of a
franchise: "Franchises are privileges conferred by grant
from government and vested in private individuals. They
contain an implied covenant on the part of the government not
to invade the rights vested, and on the part of the parties to
execute the conditions and duties prescribed in the grant." ^'
A gas company may be incorporated and its charter authorize
it to make and sell gas, although it have no privilege to lay
its pipes in the streets of the municipality where located ; and
yet it would possess a franchise granted by the sovereign State
unaccompanied by any privilege of laying its pipes in the
streets, and have no contract with the municipiality to furnish
it gas ; and should it after receiving the privilege, enter into a
contract to furnish public lights at so much per light ; — the
distinction between such a contract and the company's fran-
chise is quite clear. Usually, if not universally, a gas company
is organized under a general statute authorizing its incorpora-
tion and its articles of incorporation contain a statement of the
place of its home office and where it will operate ; unless it is
20 Board v. People, 91 111. 80. 537, 579. See State v. Weatherby,
21 Bank of Augusta v. Earl. 13 45 Mo. 17; People v. Ridgely, 21
Pet. 519, 595. 111. 65; Bridgeport v. New York,
22 Thompson v. People, 23 Wend. etc., R. R. Co., 36 Conn. 266.
520 OIL AXD GAS.
chartered by a special act of the legislature, and then the field
of its future operations is almost universally specified. Such
a company has no right to enter upon the streets of a munici-
pality Avithout its consent to lay its pipes, unless its charter or
some statute expressly gives it that privilege. Usually the act
of incorporation and the grant of a right to use the streets are
almost simultaneous acts ; and out of their coincidence in
point of time has grown up the confusion between a franchise
and the grant of a right or privilege to occupy the streets. The
two things are entirely dift'ercnt ; and yet there is dire confu-
sion about their natures in both the text books and the written
opinions of the courts. The Supreme Court of Michigan has
pointed out the distinction wo are endeavoring to show. ^'' The
exercise of the power of using streets for laying gas pipes is
rather an easement than a franchise, and a similar power
is used as often for private drainage and other purposes as for
more general purposes. It is a matter jTeculiarly local in its
character, and which should always be to a reasonable extent
under a municipal supervision to prevent clashing among the
many convenient uses to which ways must necessarily be sub-
jected, for water, drainage and other urban needs. But the
permission to lay these pipes does not differ in any respect from
that required for laying railways over land, or ditches through
it. It is not a State franchise, but a mere grant of authority
which, whether coming from private owners, or public agents,
rests in contract or license, and in nothing else. It in no way
concerns the State whether the poAver is granted or withheld,
nor whether the corporation has or has not fulfilled its agree-
ments." -^
23 People V. Mutual Gaslight Co., Co. v. Thurber, 2 R. I. 15; 55 Am.
38 Mich. 154. In this casfe* leave Dec. 621. That it is a license or
to file an information in the nature permit, see Sandy Lake v. Sandy
of a quo trarranto to have the char- Lake, etc., Co.. 16 Pa. Super. Ct.
ter of 'a gas company declared for- 234; Great Falls W. W. Co. v.
feited, because it had violated its Great Northern Ry. Co. (Mont.),
contract with the city wherein it 54 Pac. Rep. 96-3 ; Chicago, etc..
was located, was denied. In the Co. v. Lake, 130 111. 42; 22 N. E.
same line see Palestine Water, etc.. Rep. 616; affirming 24 111. App.
Co. v. Palestine, 91 Tex. 540; 44 .346; Chicago R. R. Co. v. People.
S. W. Rep. 814; Providence Gas 73 111. 541.
STREETS AXD HIGHWAYS. 521
§470. Nature of grant to occupy streets or highways, — A fran-
chise.
iSTotwithstandiiig the line of reasoning pursued in the fore-
going section, some courts have held that the grant of a city to
a gas company to occupy its streets with lines of pipes to
furnish gas is something more than a mere license or privilege
— it is a franchise. Chief among these is the Xew York
Court of Appeals. In one case it was said : "At the thresh-
old of the consideration of these questions, it will be well to
have in mind the legal effect of the consent which the municipal
authorities are authorized to give by the transportation corpora-
tion act. It operates to create a franchise, by which is vested
in the corporation receiving it a ])erpetual and indispensable
interest in the land constituting the streets of a municipality.
It is true that the franchise comes from the State, but the act
of the local authorities, who represent the State by
its permission and for the purpose, constitute the act
upon which the law operates to create the franchise. The
State might grant the franchise directly to the corporation
without the consent of the local authorities, and has done so
in many instances ; but the tendency' of later years, which is
well grounded in reason, is for the State to confer upon the
local municipal authorities the right to represent it in the
matter of granting franchises to the extent that the final act
necessary to the creation of franchises must be exercised by
such authorities. The legal effect of the consent, therefore, is
the same as if the local authorities in form granted the fran-
chise and the interest in the land." -* In this same case it was
conceded that, '' The consent of the town authorities conferred
upon the relator a franchise to carry on its business in the
town, and to lay conductors in the streets and highways for
the purpose of delivering gas ; that such a franchise is property
that cannot be destroyed or taken from it or renewed unless
by the arbitrary act of the village authorities in refusing the
24 People V. Deehan. 153 X. Y. • 11 X. Y. App. Div. 175; 42 X. Y.
528; 47 X. E. Rep. 787, reversing Supp. 1071.
522 OIL AND GAS.
permit to place the conductors under the streets." "^ It should
be observed that in Xew York City, where this doctrine had
its origin, the fee of the streets is in the City and not in the
abutting property owner. In other States a similar rule has
been adopted.^*'
§471. Acceptance of grant.
In whatever way a grant may be regarded, whether as a gift,
donation or a contract, it is not complete until accepted ; and
until it is accepted it may be revoked. Acceptance is essen-
tial to its validity. ^^ Usually the ordinance granting the right
requires the company to tile with the municipality a written
acceptance of the *^ant ; but where no such requirement is
exacted it is not necessary. An acceptance may be evidenced
by acts alone. Thus where the grantee was required by the
ordinance to commence furnishing gas within iive years at
specified rates ; and within four months it purchased land on
which to erect its works, and in nine months made contracts ;
it was considered that these acts, having been performed in
good faith, constituted a sufficient acceptance, and it Avas too
late thereafter to repeal the ordinance."'^ The acceptance must
l>e of the exact terms of the grant; a qualified acceptance
is invalid. Not only must the acceptance be as broad as the
25 People V. Deehan, 153 N. Y. lijrlit Co. v. Sutherland, 68 111. App.
528; 47 N. E. Rep. 787. See also 230.
People V. O'Brien, 111 N. Y. 1; 18 27 Metroplitan Gas Co. v. Hyde
N. E. Rep. 692; Railroad Company Park, 27 111. App. 361; affirmed 130
V. Railroad Co., 32 Barb. 358, 364; 111. 42; 22 N. E. Rep. 616; People's
Brooklyn v. Jourdan, 7 Abb. N. C. Gaslight and Coke Co. v. Hale, 94
23. 111. App. 406.
26 Jersey City Gas Co. v. Dwight, The acceptance completes the con-
29 N. J. Eq. 242; Palestftie, etc., tract. Sandy Lake v. Sandy Lake,
Co. V. Palestine, 91 Tex. 540; 44 etc., Co.. 16 Pa. Co. Ct. Rep. 234;
S. W. Rep. 814; National Foundry, Morristown v. East, etc., Co., 115
etc., Co. V. Oconto Water Co., 52 Fed. Rep. 304.
Fed. Rep. 29; Sharp v. South 28 Metropolitan Gas Co. v. Hyde
Omaha, 53 Neb. 700 ; 74 N. W. Rep. Park, 27 111. App. 361; affirmed
76; People's Gaslight and Coke Co. 130 111. 42; 22 N. E. Rep. 616;
V. Hale, 94 111. App. 406; Commer- Clarksburg Electric Light Co. v.
cial, etc., Co. v. Tacoma, 17 Wash. Clarksburg, 47 W. Va. 739; 35 S.
661; 50 Pac. Rep. 592; Joliet Gas- E. Rep. 994; 50 L. R. A. 142.
STREETS AND HIGHWAYS. 523
grant, but when made it will be construed as an agreement to
obey all the valid ordinances of the municipality in relation
to the grant and its subject matter. Thus where a gas com-
pany was gTanted the privilege of laying its pipes in the streets
of a city, subject to the conditions of a prior ordinance fixing
the conditions generally on which a company could occupy
streets with its pipes ; and the company by resolution filed with
the city agreed to comply with the general ordinance " except-
ing so far as any of the terms of said ordinance may be held or
adjudged illegal or unreasonable by courts," it was held that
as the city council had never consented to such qualifications of
the acceptance, and the company having enjoyed the privileges
of such ordinance under its acceptance, it could not refuse to
comply with certain provisions of the ordinance on the ground
that after its acceptance it had been adjudged to be void."® It
is not necessary to name all of the sections of an ordinance in
an acceptance, where an attempt is to accept it by sections ;
for the acceptance of a single section will carry with it an
acceptance of all the provisions of the ordinane.^" A mere nom-
inal acceptance is sufficient to bind the company after it has
enjoyed the whole or a part of the privileges granted. ^^
§472. Gas company must comply with conditions of grant.
A gas company that desires to retain its rights in the streets
must substantially comply with the conditions of the grant; and
if it fail to do so, it may forfeit its rights therein.^^ The con-
dition may he a precedent or a subsequent one. Thus where
a natural gas company was required to have one or more gas
wells in operation within a year as a condition precedent to
the right to lay pipes in the streets, its right to lay such pipes
20 Allegheny v. People's, etc., Co., 172 Pa. St. 632; 26 Pittsb. L. J.
172 Pa. St. 632; 37 W. N. C. 442; (N. S.) 410; 37 W. N. C. 442; 33
33 Atl. Rep. 704. Atl. Rep. 704.
"0 Sewickley v. Ohio Valley Gas 32 Capital City Water Co. v.
Co.. 6 Pa. Co. Ct. Rep. 99, reversed State, 105 Ala. 406; 18 So. Rep.
but not on this point, 1 Monaghan, 62; 29 L. R. A. 743; Sandy Lake v.
97. Sandy Lake, etc., Co., 16 Pa. Co.
31 Allegheny v. People's, etc., Co., Ct. Rep. 234.
524 OIL AXD GAS.
was held not to accrue until it had at least one well in opera-
tion and that within the year."''' Where the condition was that
the company must furnish gas within one year, it was held that
the acquisition of a two-years' lease of gas-works was not a
compliance with the condition, so as to enable the company,
after the expiration of the year, to enjoin the town in its at-
tempt to prevent it laying its own pipes in the streets ; nor was
the condition complied with by building a gas apparatus under
cover, and withholding all knowledge of it from those who were
to receive the company's advantages imtil the year specified had
elapsed.^*
§473. Grant to occupy streets construed strictly.
Grants to occupy the streets of a city are strictly construed.
As it is the use of public property for private gain, courts are
careful to see that the rights of the public are protected ; and
also to see that the company receives nothing beyond what has
been fairly granted. I^othing passes by implication except that
which is necessary to carry into effect the gi'ant.''^ In the New
York case cited the court said: " The rule that public grants
are to be construed strictly against the grantee means simply
that nothing shall pass by implication except it be necessary to
carry into effect the obvious intent of the grant. But the ob-
vious intention of the parties, when expressed in plain lan-
guage, cannot be ignored in a public any more than in a private
grant. A construction that would lead to false consequences
or unjust or inconvenient results, not contemplated or intended,
should be avoided in a grant as well as in a statute. It is well
known that business enterprises such as the relator is engaged in
are based upon calculations of future growth and expansion.
A franchise for supplying gas not only confers a privilege, but
33 Newark Gas, etc., Co. v. New- 35 People v. Deehan. 153 N. Y.
ark, 8 Ohio S. and C. P. Dec. 418; 528; 47 N. E. Kep. 787; State v.
7 Ohio N. P. 76. Boyce. 43 Ohio St. 46: 1 N. E.
3* Chicago, etc., Co. v. Lake, 130 Rep. 17 ; Pensacola Gas Co. v. Pen-
Ill. 42; 22 N. E. Rep. 616; affirm- sacola, 33 Fla. 322; 14 So. Rep.
ing 27 111. App. 346, for last propo- 826 ; Tampa v. Tampa W. W. Co.,
sition. (Fla.) 34 So. Rep. 631.
STREETS a:«;d iiitaiwAYS. 525
imposes an obligation, npon the corporation to serve the public
in a reasonable way. The relator is bound to supply gas to
the people of the town upon certain conditions and under certain
circumstances, and it would be most unjust to give such a
construction to the consent as to disable it from performing its
obligations." "'''
§474. What streets company may occupy. — Sidewalk.
Where the ordinance granting the gas company the right to
furnish gas to a municipality designates the streets it may
occupy, it necessarily follows that it can occupy no other streets
than those named without a further permit from the munici-
pality, unless it has a charter which gives it the absolute right
to occupy the streets without consent of municipal authorities.
But if an ordinance gives it the right to occupy the streets, and
is silent as to what streets, then the company can make its own
selection ; and it cannot be successfully urged that the ordinance
is void.^' As the sidewalks are a part of the street, a city may
authorize a gas company to lay its gas mains therein.^®
§475. Territory annexed to another municipality after grant
made.
If a gas company is given authority to occupy the streets of
a municipality; and thereafter a part of the territory of such
municipality is cut off and annexed to another or erected into
a new and separate municipality, the company has the right to
continue in the use of the part so cut off, and even to occupy
30 See Appeal of Pittsbiirjr. 115 must specify the territory it desires
Pa. St. 4; 7 Atl. Rep. 778; Western to occupy. In re Conshohocken
Paving, etc.. Co. v. Citizen's, etc.. Gaslioht Co., 5 Pa. Co. Ct. Rep.
Co., 128 Ind. 525; 26 X. E. Rep. 585.
188; 28 X. E. Rep. 88. A statute requiring a company
3" Kalamazoo v. Kalamazoo, etc., to state in its application what
Co.. 124 Mich. 74; 82 X. W. Rep. streets it desires to occupy is com-
811. plied with by a general designation
38 McDivitt V. Philadelphia Gas of all the streets of the city. Myers
Co.. 160 Pa. St. 367; 28 Atl. Rep. v. Hudson, etc., Co. (X. J.). 44
948. Atl. Rep. 713, reversing 37 Atl.
In Pennsylvania a gas or other Rep. 618.
public company, in the application.
526 OIL AND GAS.
new streets opened up in that part of the territory so severed
from the old municipal corporation.'"'*
§476. New streets, right to occupy. — No streets specified.
If a gas company be given the right generally to supply gas
to a municipality and to occupy its streets for that purpose, it
has the right to occupy streets opened therein after the grant,
as well as streets laid out iu now territory.*" Thus where the
grant Avas the " power of laying conductors for conducting gas
in and through the public streets and highways of the town,"
it was hold that the grant was co-extensive with the limits of
the town, and was not confined to any particular street, high-
way, or other local division. The lower court held that the
grant did not a]iply^o streets not open when the grant was
made ; but its holding was reversed on apjx'al, the Ajjpellate
Court saying: " It cannot reasonably be contended that the
relator is obliged to apply for a new grant whenever a new
street is opened or an old one extended, as would be the case
if the consent applied only to the situation existing when made.
AVlien the right to use the streets has been once granted in
general terms to a corporation engaged in supplying gas for
public and private use, such grant necessarily contempla:tes
that new streets are to be opened and old ones extended from
time to time, and so the privilege may be exercised in the
new streets as well as in the old. Such a grant is generally in
perpetuity or during the existence of the corporation or at least
for a long period of time, and should l>e given effect according
to its nature, pairpose, and duration. There is no good reason
for restricting its operation to existing highways, unless that
purpose appears from the language employed. It is not claimed
that any such limitation was expressed, and none can he im-
plied from the nature of the ease. The language of consent
confers the right to place the conductors in the streets, upon
compliance with all reasonable regulations, not only as the
streets then existed, but as subsequently enlarged. That is
S9 People V. Deehan, 153 N. Y. 11 N. Y. App. Div. 175; 42 N. Y.
528; 47 N. E. Rep. 787; reversing Supp. 1071.
40 See Sec. 475.
STREETS AXD HIGHWAYS.
52^
what the grant contemplated when made, and such is the fair
meaning- of the language used." '*^
§477. Sale or assignment of right in streets.
If the right to lay pipes in a street to supply gas or water
be regarded i-s a franchise, then under the general principles of
corjwration law the right cannot be assigned, unless a statute
authorizes it.*^ But if the right be regarded as a mere ease-
ment, license or privilege, then it may be assigned, unless the
ordinance containing the grant forbid it.*^ The assignment
does not prevent the grantor or the State, having a forfeiture
declared in the hands of the assignee, even for acts of the
assignor.** A gas company cannot lease its plant without the
consent of the municipalit}^*^ The city or town may agree
that the grant may be assigned ; and a grant to the company or
its assigns is sufficient to authorize an assignment without the
farther consent of the city.*°
41 People V. Deehan, 153 N. Y.
528; 47 N. E. Rep. 787; reversing
11 N. Y. App. Div. 175; 42 N. Y.
Supp. 1071.
For the right of a company to
cross unimportant streets without
a permit, in order to complete its
system, see National Gas Co. v.
Pittsburg, 1 Pa. Co. Ct. Rep. 311.
42 Thomas v. Railroad Co., 101
U. S. 71; Y'ork, etc., R. R. Co. v.
Winans, 17 How. 30; Black v. Dela-
ware, etc., R. R. Co., 22 X. J. Eq.
130; Gibbs v. Consolidated Gas Co.,
130 U. S. 396; 9 Sup. Ct. Rep.
553 ; Chicago Gaslight and Coke
Co. V. People's etc.. Co.. 121 111.
530; 13 X. E. Rep. 169; 2 Am. St.
Rep. 124 : reversing 20 111. App.
473; Brunswick Gaslight Co. v.
IJnited, etc.. Co., 85 Me. 532; 27
Atl. Rep. 525; 35 Am. St. Rep.
385.
As for an instance not amount-
ing to an assignment or lease, see
Marlborough Gaslight Co. v. Xeal,
166 Mass. 217; 44 X. E. Rep. 139.
^\Tiere the sale and assignment
43 Commercial, etc., Co. v. Taco-
ma, 17 Wash. 661; 50 Pac. Rep.
592; Joliet Gaslight Co. v. Suther-
land, 68 III. App. 230; State v.
Laclede Gaslight Co., 102 Mo. 472;
14 S. W. Rep. 974; 15 S. W. Rep.
383; 22 Am. St. Rep. 789; In re
Southern Illuminating Co., 5 Pa.
Dist. Rep. 781.
44 City Water Co. v. State (Tex.),
33 S. W. Rep. 259.
45 Visalia Gas, etc., Co. v. Sims,
104 Cal. 326; 37 Pac. Rep. 1042;
Bath Gaslight Co. v. Claffy. 74 Hun
638; 26 X. Y. Supp. 287.
46 Los Angeles v. Los Angeles
Water Co., 177 U. S. 558; 20 Sup.
Ct. Rep. 736; American Water
Works Co. V. Farmers' Loan and
Trust Co., 73 Fed. Rep. 956; 20 C.
C. A. 133; 36 U. S. App. 563; San
Luis Water Co. v. .Estrada, 117 Cal.
168; 48 Pac. Rep. 1075; State v.
Laclede Gaslight Co., 102 Mo. 472;
14 S. W. Rep. 974; 15 S. W. Rep.
383.
528 OIL AND GAS.
of a franchise is permitted, the purchaser or assignee succeeds
to all the rights and privileges of the assignor, even to the extent
of excluding all other companies where the franchise assigTicd
is of that character ; ■*' and assumes all its burdens, even to the
extent of furnishing the city free gas when that privilege is
contained in the original contract.*^ And the city, consenting
to the assignment if that is necessary, is bound to carry out
with the assignee its agreements made with the assignor.*^
§478. Change of use of franchise. — Natural gas.
A gas company cannot use its powers for any purpose than
those specified in its franchise; and it cannot use the streets
for any other purposi^^than those named in the contract with
the muuici]>ality. Illustrations of this have been given in dis-
cussing the question of exclusive franchises or monopolistic
contracts. In the construction of special legislative grants all
doubts are to be construed against the grantee, and liberally
in favor of the public.^" As has been stated, an exclusive fran-
chise to maintain a horse car line is not violated by the grant
of a franchise to maintain a car line by the use of electricity.^^
jSJ'or does an exclusive franchise to furnish light by gas prohibit
the introduction of public electric lights by another company.^'
So a statute upon the subject of gas, enacted long before natu-
ral gas came into use in the State, has no reference to natural
47 South Side Gas Co. v. South- send v. Brown, 24 N. J. L. 80 ;
ern, etc., Co., 18 Pa. Co. Ct. Rep. Black v. Delaware, etc., Co., 24 N.
529. J. Eq. 455, 474; Tampa v. Tampa
48 Sandy Lake v. Sandy Lake, W. W. Co. (Fla.), 34 So. Rep. 631.
etc., Gas Co., 16 Pa. Supr. Ct. si Omaha, etc., Co. v. Cable, etc.,
Rep. 234; Freeport v. Enterprise Co.. 30 Fed. Rep. 324.
Natural Gas Co., 18 Pa. Supr. Ct. 52 Newport v. Newport Light Co.,
73. 11 Ky. L. Rep. 840; 12 S. W. Rep.
40 Austin V. Bartholomew, 107 1040; Saginaw Gaslight Co. v. Sag-
Fed. Rep. 349; 46 C. C. A. 327. inaw, 28 Fed. Rep. 529; Parkers-
50 State V. Payne, 129 Mo. 468; burg Gas Co. v. Parkersburg, 30 VV.
31 S. W. Rep. 797; 33 L. R. A. Va. 435; 4 S. E. Rep. 650. Nor
576 ; Central Transportation Co. v. may the gas company furnish elec-
Pullman Palace Car Co.. 139 U. S. trioity. State v. ]\Iurphy, 170 U. S.
24; 11 Sup. Ct. Rep. 478; Town- 78; 18 Sup. Ct. Rep. 505.
STREETS A^"D HIGHWAYS. 529
gas.^^ The natural conclusion from these cases to be drawn
is that a gas company given tlie privilege to use the streets in
order to furnish gas for public lighting cannot furnish electri-
city for light. Such in fact is the case. So a like conclusion
is reasonably reached that a company given the privilege of
the streets to lay pipes therein in order to furnish artificial gas
cannot use such pipes in order to supply natural gas ; and so
it is decided.""* Keeping in mind the strict construction and
the cases already cited, it seems to be a rational conclusion that
an artificial gas company having its pipes in the streets cannot
use them for the purpose of supplying natural gas ; and a natural
gas company cannot use its pipes to supply artificial gas. iSTor
is it going beyond the legitimate course of reasoning from the
decided cases to say that a company given a franchise to furnish
gas for light, and the right to use the streets for that purpose,
cannot use sucli streets to supply gas for heating purposes. It
makes no difference that the gas belongs to the consumer as
sooii as it has passed through the meter (when meters are used),
and the company thereafter has no control over it ; for it is
the use of the street in the transportation of the gas that is
]>erverted. The grant is for the purpose of transporting gas
for the purposes of light and not for heat; and whenever the
company connives at the use of the gas so transported it vio-
53 Warren Gaslight Co. v. Penn- natural gas. Emerson v. Common-
sylvania Gas Co., lo Pa. Ct. Rep. wealth, 15 W. N. C. 425; 108 Pa.
310; affirmed IGl Pa. St. 510; 29 St. Ill; Sterling's Appeal, 111 Pa.
Atl. Eep. 101. St. 35; 2 Atl. Rep. 105; 2 Cent.
54 Findlay Gaslight Co. v. Find- Rep. 49. But where a corporation
lay, 2 Ohio Cir. Ct. Rep. 237; 1 was formed to supply gas for light,
Ohio Cir. Dec. 463 ; Kentucky Heat- or heat, or both, and for other pur-
ing Co. V. Louisville Gas Co. (Ky. ), poses, and its charter made no re-
63 S. W. Rep. 651; 23 Ky. L. Rep. strictions as to uses, it was held
730. that it could supply natural gas for
The Pennsylvania corporation act lighting, unless some other com-
of 1874, or the incorporation of gas pany had the exclusive right to do
companies, contemplates only com- so. Hagan v. Fayette Gas Fuel
panics supplying the manufactured Co., 21 Pa. Co. Ct. Rep. 503; 29
product, and does not aiithorize the Pittsb. Leg. J. (N. S.) 229.
creation of a corporation to supply
530
OIL AND GAS.
lates the privileges extended to it, and under cover of one privi-
lege is insisting on another.^^
§479. Ordinance void. — Estoppel.
If the ordinance granting the right to occupy the streets be
void, yet if the company accept it, perform all its requirements,
by constructing its works and laying its mains, the municipality
will be estopped to set up that the company is in the streets with-
out right ; and if it has a contract with the municipality to
furnish gas, has furnished it and received pay in part, the latter
will also be estopj>ed to set up that such contract is void.^"
55 See Warner Gaslight Co. v.
r'ennsylvania Gas Co., 1^1 Pa. St.
510; 29 Atl. Rep. 101; Hagan v.
Fayette Gas Fuel Co., 21 Pa. Co.
Ct. Rep. 503; 29 Pittsb. L. J. (N.
S.) 229; Lebanon Gas Co. v. Leba-
non Fuel, etc., Co., 5 Pa. Dist. Rep.
529; 18 Pa. Co. Ct. Rep. 223. A
contract to supply natural gas for
heat is not one to furnish it for
light. Philadelphia Gas Co. v. Park
Bros., 138 Pa. St. 346; 22 Atl. Rep.
86. See Johnston v. People's, etc.
Gas Co. (Pa.), 7 Atl. Rep. 167; 5
Cent. Rep. 564.
In Pennsylvania a single corpora-
tion cannot be chartered to manu-
facture and supply gas and also
to supply heat by means other than
gas (nor to portions of two coun-
ties). New Gaslight Co., 7 Pa. Dist.
Rep. 151; 1 Dauph. Co. Rep. 22.
B\it see Wilkes-Barre Light Co. v.
Wilkes-Barre, etc., Co., 4 Ku1q,-47.
A charter for the manufacture
and supply of gas generally does not
conflict with a prior franchise for
the manufacture and svipply of gas
for liirht only, but carries with it
no authority to supply gas for light.
Jn re Philadelphia Gas Works, 1
Dauph. Co. Rep. 55 ; Jn re Charter
of Gas Companies, 18 Pa. Co. Ct.
Rep. 136; 5 Pa. Dist. Rep. 396. See
Altoona Gas Co. v. Gas Co. of Al-
toona, 17 Pa. Co. Ct. Rep. 662.
A corporation under a special Act
chartered to build works which may
improve trade, may engage in the
production and delivery of natural
gas. Carother's Appeal, 118 Pa.
St. 468; 12 Atl. Rep. 314; 11 Cent.
Rep. 48.
50 Illinois Trust, etc.. Bank v.
Arkansas City, 76 Fed. Rep. 271;
22 C. C. A. 171; 40 U. S. App. 257;
34 L. R. A. 518. See Morristowm
V. East, etc., Co., 115 Fed. Rep.
304.
A statute prohibiting a town en-
tering into a contract for public
lights, but no contract should go
into operation until authorized by
a vote of its inhabitants, does not
prevent it entering into such a con-
tract with a company duly organ-
ized by a vote of such inhabitants
without another vote. Lima Gas
Co. V. Lima, 4 Ohio Cir. Ct. Rep.
22; 22 Wkly. L. Bull. 272; 2 Ohio
Cir. Dec. 396.
Vetoing an ordinance after the
time allowing a veto will not annul
a contract made under it. Penn-
sylvania Globe Gas Co. v. Scranton,
97 Pa. St. 538.
STREETS AND HIGHWAYS. 531
§480. Gas company occupying streets is subject to municipal
regulations.
A gas company occupying the streets of a municipality is sub-
ject to the reasonable rules and regulations of such municipal-
ity with reference to its opening and use of its streets ; and it
makes no difference w^hether such company has the right to oc-
cupy such streets without the consent of the municipality or
not. The rules and regulations must of course be reasonable. ^^
Usually requirements with reference to opening streets and
laying pipes therein are inserted in the grant to the gas com-
pany ; frequently they are in general ordinances in force at the
time of the grant, and occasionally in the statutes of the State.
In whatever phase they are presented, they must be obeyed by
the company. In fact, there is nothing to prevent the munici-
pality adopting such regulations after the grant to a company
has been nuide, so long as they are reasonable, which are neces-
sary for the protection of property and of the public, hav-
ing a due regard for the rights of the company. Thus, it is
a frequent requirement, one almost universally required, that
the trenches in a street in which the pipes are laid shall be
filled so as to leave the streets in as good a condition as they
were before such trenches were opened ; and under such an
agreement a municipality has the right to insist on the work
being done under such reasonable conditions and restrictions
as shall make it certain that the work will be properly done.^^
If a gas companj^ enter on the 82 N. W. Rep. 811; State v. Mur-
streets under a void ordinance, and phy, 170 U. S. 78; 18 Sup. Ct. Rep.
occupy them with its pipes and 505; Walla Walla v. Walla Walla
mains, it cannot set up that the Water Co., 172 U. S. 1; 19 Sup. Ct.
grant is void. Sandy Lake v. Sandy Rep. 77 ; aflfirming 60 Fed. Rep.
Lake, etc., Co., 16 Pa. Super. Ct. 057; Palestine, etc.. Co. v. Palestine,
Rep. 234. 91 Tex. 540; 44 S. W. Rep. 814;
^'^ Reading v. Consumers' Gas Co., People v. Chicago Gas Trust Co., 130
2 Del. Co. Rep. (Pa.) 437; Benton 111. 268; 22 N. E. Rep. 798; 8 L. R.
V. Llizabeth, 61 N. J. L. 693; 40 A. 497; Traverse City Gas Co. v.
Atl. Rep. 1132, affirming 39 Atl. Traverse City (Mich.), 89 N. W.
Rep. 683; Appeal of City of Pitts- Rep. 574; In re Johnston, 137 Cal.
burg, 115 Pa. St. 4; 7 Atl. Rep. 115; 69 Pac. Rep. 974.
778; Heman v. St. Louis, etc., Co.. ss Kalamazoo v. Kalamazoo, etc.,
75 Mo. App. 372; Kalamazoo v. Co.. 124 Mich. 74; 82 N. W. Rep.
Kalamazoo, etc., Co., 124 Mich. 74; 811.
532 OIL AND GAS.
The regulations, altlioiigh adopted subsequent to the date of the
grant, may relate to the manner of laying the pipes, altering,
inspecting, and repairing them, and the character thereof with
respect to the safety of the public and its convenience, of course
not contravening any statute.'^'' The grant may require the
pipes to be laid a certain distance below the surface of the
street; but if that depth should conflict with the open sewers
and the flow of -the Avater in them, then that fact must be taken
into consideration ; and if the city reserves the right for its
council to determine Avhere the pii>es of a water company shall
be located, and to employ an engineer to see that the Avater
works are so constructed as to properly protect the intetrests of
the citv, that does not confer on the engineer employed power
to determine the location of the pipes. In such an instance,
if the company locate and put in its pipes Avithout any deter-
mination or direction of the council as such, its adoption of the
plans of the engineer in no wise changes its responsibility.*'"
If the contract Avith the company be that the pipes, even on
private land, shall be " Avell and sufliciently closed upi," and the
land and premises be " made good," it is not a compliance Avith
such contract to leave the soil covering the pipes in the trenches
in places from tAvo to two and a half feet above the original
level."^ Ai municipality may adopt an ordinance to prohibit
gas companies . laying pipes in the streets during the Avinter
months, so as to prevent the streets becoming obstructed.'^" If
59 Appeal of City of Pittsburg, Where an ordinance required re-
115 Pa. St. 4; 7 Atl. Rep. 778; He- pairs to be made within a specified
man v. St. Louis etc., Co., 75 Mo. time after notice given by the city
App. 372; Benton v. Elizabeth, 61 to make them; and upon receiving
N. J. L. 693; 40 Atl. Rep. 1132, such a notice work was begun with-
affirming 39 Atl. Rep. 683. in two days thereafter and prosecut-
60 Montgomery v. Capital* City ed with due diligence, but not coni-
Water Co.. 92 Ala. 361 ; 9 So. Rep. pleted until the day after the time
339. ■ for completing the work had ex-
61 Chisholm v. Halifax, 29 Nov. pired, it was held that there was
Sco. 402. a compliance with the requirements
In this case it was also held that of the ordinance. Heman v. St.
putting stones in the trenches so Louis, etc., Co., 75 Mo. App, 372.
that they interfered with plowing 62 North Liberties v. North Lib-
the ground was not a breach of the erties Gas Co., 12 Pa. St. 318.
contract.
STREETS AND HIGHWAYS. 533
there be a general ordinance in force, when the right to occupy
the streets is granted, providing that all pipes laid in the streets
should be laid a certain depth, and under the supervision of
the street commissioners ; and such grant is expressly made
subject to all ordinances then or thereafter in force, such pipes
must be laid under the supervision of such street commis-
sioners.*'^ An ordinance granting the right to lay and maintain
pipes in the streets, reserving their location to the common
council, does not mean when the location has once been deter-
mined upon and fixed that the municipality has exhausted its
power in that respect and has no further power to regulate and
change the location."* In its regTilations all companies must
be treated alike; and one cannot be denied privileges granted
others. Thus where an ordinance required a special permit
of the board of supervisors before poles for electric lighting
could be erected in the streets, and a permit was issued to one
company and denied to another, it was said that the latter
company could maintain an action for a mandamus to compel
the issuance to it of a proper permit, but it was also said that
it could not enjoin the other company from erecting its poles."^
But mandamus will not lie to compel a city to grant permits to
lay wires in a street, where the company by virtue of its charter
claims the right to lay them without complying with reasonable
police regulations on the subject adopted by the city, such com-
pany not having offered to comply with them.''*'
63 Wilkinsburg Gas Co. v. Wilk- Ashworth. 118 Cal. 1; 50 Pac. Rep.
insburg, 25 Pitts. L. J. (X. S.) 42. 10. See also State v. St. Louis, 145
A company having its pipe line, Mo. 551; 46 S. W. Rep. 981, where
although occupying a private right mandamus was held the proper writ
of way, to transport oil through to compel the granting of certain
land which is traversed by a public permits to a company already oc-
street of a city, is subject to an cupying the streets. In this case
ordinance prescribing the manner in it was held that an ordinance was
which the pipe shall be laid and not void because it did not reserve
used. Benton v. Elizabeth 61 N. J. to the city control over the works
L. 693; 40 Atl. Rep. 11.32; affirm- or business of the company or re-
ing 39 Atl. Rep. 683. quire it to serve the public.
64 Montgomery v. Capital, etc., eo State v. Murphy, 170 U. S.
Co., 92 Ala. 361; 9 So. Rep. 339. 78; 18 Sup. Ct. Rep. 505.
65 Mutual Electric Light Co. v. Where the constitution of a State
534: OIL AND GAS.
§481. Injunction to protect company's rights in streets.
If a company has been properly granted the privilege to use
the streets of a city — or has been granted a franchise in such
streets, as is usually said — a court of equity will protect its
rights by an injunction. °^ But where a municipality is not
empowered to grant an exclusive franchise, a gas company with
the grant of such a right cannot obtain an injunction to restrain
another company obtaining a subsequent grant of the right to
occupy the same streets."^
§482. Grant before company is organized.
It is no objection to the grant to a gas company of a right to
lay pipes in the streetarthat it was made before the company
was incorporated, if it, after its organization, accept the ordi-
nance and enter upon the work of laying pipes before objection
was made.*'*'
§483. Length of grant of franchise.
Unless the charter or a statute fixes a limit, or the contract
with the city determines it, the length of time a gas company
gives corporations the right to lay A city may require water mains
gas mains or water pipes in the to be removed and placed else-
streets of municipal corporations, where, when no longer needed in
under the direction of the superin- the place where they are located,
tendent of streets, such municipali- Asher v. Hutchinson Water, etc.,
ties cannot adopt an ordinance re- Co., 71 Pac. Rep. 813.
quiring a corporation to first obtain <!7 Jersey City Gas Co. v. Dwight,
a permit before laying its pipes in 29 N. J. Eq. 242; Natural Gas Co.
the streets, the exercise of such au- v. Pittsburg, 1 Pa. Co. Ct. Rep.
thority not being an exercise of the 311; Goodson v. Richardson, L. R.
police power. In re Johnston, 137 9 Ch. 221; 43 L. J. Ch. 790; 30
Cal. ll.'"); 69 Pac. Rep. 973. * L. T. (N. S.) 142; 22 W. R. 337.
A city may require a gas com- cs Coffey ville, etc., Co. v. Citi-
1 pany to lay its pipes in the alleys zens', etc., Co., 55 Kan. 173; 40
whenever practicable if ordered by Pac. Rep. 326.
its council, imder a clause in a C9 Clarksburg Electric Light Co.
statute empowering such city to v. Clarksburg, 47 W. Va. 739; 35
impose reasonable regulations upon S. E. Rep. 994; 50 L. R. A. 142;
gas companies using its streets. Sharp v. South Omaha. 53 Neb.
Traverse City Gas Co. v. Traverse 700; 74 N. W. Rep. 76. See Peo-
City (Mich.), 89 N. W. Rep. 574. pie v. Bowen. 30 Barb. 24.
STREETS AND HIGHWAYS. • 535
may maintain its pipes in the streets is unlimited ; " and such
limitation cannot be shortened by subsequent legislation. The
grant of the right is in perpetuity ; "^ and such is the pre-
sumption.'^"
§484. Termination of life of corporation before expiration of
franchise.
Strictly speaking, a franchise expires with the corporation ;
but instances have occurred where grants of rights and privi-
leges have been made to gas companies for a length of time that
exceeded its corporate life; and some difficulties have arisen on
that score. In an instance of that kind an ordinance was held
not to be void. In the instance referred to the grant was to
the company or its assigns ; and the ordinance provided that
the company might transfer all of its rights, privileges, prop-
erty and franchise conferred by it to any organized gas com-
pany which should, within twenty days after the transfer, file
its written acceptance of the ordinance's terms and give bond
for the performance of all the agreements required of the origi-
nal company. The grant extended beyond the limit of the
corporate existence ; but the contract with the city was upheld. ''"
But such an ordinance cannot prolong the life of the corpora-
tion, it being construed as a valid contract only so long as the
company has a corporate existence, as fixed by the statute or
original articles of incorporation.'*
§485. Consolidation of g-as companies.
Statutes may authorize two or more gas companies to con-
solidate ; and when consolidated the new companies become
vested with all the rights of the consolidating companies, and
70 People V. Deenan. 153 X. Y. '^3 State v. Laclede Gaslight Co.,
528; 47 N. E. Rep. 787; 11 N. Y. 102 Mo. 472; 14 S. W. Rep. 974;
App. Div. 175; 42 N. Y. Supp. 1071. 15 S. W. Rep. 383; 22 Am. St. Rep.
71 People V. O'Brien, 111 N. Y. 1; 789.
18 N. E. Rep. 692. Testate v. Payne, 129 Mo. 468;
72 Suburban Electric Light, etc.. 31 S. W. Rep. 797; 33 L. R. A. 576.
Co. V East Orange (N. J. Ch.), 41
Atl. Rep. 865.
636 , OIL AND GAS.
become bound by all the duties and obligations imposed on
them bj the statute or by the several ordinances granting them
rights to furnish the municipality and its inhabitants with
e-as.''^ But a statute authorizing a consolidation of two or
more companies does not authorize an existing company to con-
solidate with a company of individuals not yet incorporated as
a company.'*^ The ordinance by which a company is author-
ized to occupy the streets may be such as to forbid a consolida-
tion with another company. Thus where the grant was upon
the condition that the company would not enter into any com-
bination with another company with respect to rates to be
charged for gas, it was held that an agreement with another
company in the city for a division of the territory to be lighted
was a violation of the dondition in the ordinance, although not
such a breach as to work a forfeiture of the right to lay pipes
in the streets named in the grant. '^ An agreement of two
gas companies to divide the territory between them, where their
respective grants cover the same ground and not to invade each
other's separate territory is void, because of public policy.^^
§486. Town becoming a city.
If a town has authorized a gas company to occupy its streets
Avith its pipes, and has entered into a contract with it for gas,
and afterwards becomes a city, the right of the company to oc-
cupy such streets is not affected by the change, nor is the con-
tract annulled. In other words, the succession of one munici-
pality to the territory of another does not change the rights of
an existing gas company in the territory.'^''
75' People's Gaslight and Coke Co. People's Gaslight and Coke Co., 121
V. Hale. 04 111. App. 406. See Bai- 111. .5,30; 1,3 N. E. Eep. 160; St.
ley V. Citizens' Gaslight Co., 27 N. Louis v. St. Louis Gaslight Co., 70
J. Eq. 106. Mo. 69.
''■6 New Orleans, etc., Co. v. Louis- to People v. Deehan, 11 N. Y.
iana. etc. Co., 11 Fed. Rep. 277. App. Div. 17.5; 42 N. Y. Supp.
77 Detroit V. INIutual Gaslight Co., 1071; reversed 153 N. Y. 528; 47
43 Mich. 594; 5 N. W. Rep.' 10,39. N. E. Rep. 787; Grand Rapids v.
78Gibbs V. Consolidated Gas Co., Grand Rapids Hydraulic Co., 66
130 U. S. 306; Sup. Ct. Rep. 553; Mich. 606; 33 N. W. Rep. 749.
Chicago Gaslight and Coke Co. v.
STKEETS AND HIGHWAYS. 537
§487. Injunction to restrain laying of pipes in streets.
It has been held that the laying of pipes in the street is not
such a nuisance as will authorize a court of equity to restrain
the persons laying them.*" But this was a suit brought by an
abutting property owner who did not o^vtq the fee in the street,
and the obstruction of the street would last only two or three
days.*^ But where there is an invasion of private gi'ounds ad-
joining the street, an injunction will be granted upon proper
application.*^ Of course, a municipality may always maintain
a suit to prevent a gas company invading its streets and laying
down pipes therein without its or the State's consent ; *^ and
so may a private land owner whenever the gas pipes will be
an additional burden on the fee of the highway.*'*
§488. Pipe laid in street unlawfully laid out.
If a pipe line be laid in a street which has been unlawfully
laid out, and the proceedings laying it out are declared void
and set aside, because of the unconstitutionality of the statute
authorizing its laying out, the owner of the pipe will not lose it
nor can he be deprived of its use by the abutting land owner,
if no question concerning the validity of the law was raised at
the time the lands M'ere taken for the purpmse of a street.*^
The laying out of the street in such a case will be regarded the
80 Attorney General v. Cambridge Gas. J. 448. Where an action for
Consumers' Gas Co., L. R. 4 Cli. damages would furnish adequate
71; 38 L. J. Ch. 94; 19 L. T. (N. relief, an injunction was refused.
S.) 508; 17 W. R. 145, overruling Norwich Gaslight Co. v. Xorwich
L. R. 6 Eq. 282; 38 L. J. Ch. 94, City Gas Co., 25 Conn. 19.
Ill; 17 W. R. 145; 17 Gas. Jr. 83 Brooklyn v. Fulton Municipal
427, 593, 867. Gas Co.. 7 Abb. N. C. 19.
81 Decision to the same point. At- 84 Qoodson v. Richardson, L. R.
torney General v. Sheffield Gas Con- 9 Ch. 221; 43 L. J. Ch. 790; 30
sumers' Co., 3 De. Gex. McN. and L. T. (N. S.) 142; 22 W. R. 337;
G. 304; 17 Jur. 677; 22 L. J. Ch. Selby v. Crystal, etc.. Co.. 4 DeG.
811; 2 Gas. J. 396, 419; 19 E. L. and F. and J. 246; 31 L. J. Ch. 595;
Eq. 639; 1 W. R. 185. Otherwise 8 Jur. (K S.) 830; 6 L. T. (N. S.)
if he owned the fee. Goodson v. 790; 10 W. R. 636.
Richardson, L. R. 9 Ch. 221 ; 43 L. ss King v. Philadelphia Co., 154
J. Ch. 790; 30 L. T. (N. S.) 142; Pa. St. 160; 26 Atl. Rep. 308; 21
22 W. R. 337; Deere v. Guest, 1 L. R. A. 141; 41 Am. and Eng.
My. and C. 516; 6 L. J. Ch. 69. Corp. Cas. 221.
82 Chapman v. Grays' Gas Co., 13
538 OIL AND GAS.
same as if a street that could be lawfully laid out had been laid
out by de facto officers.
§489. Revocation of grant.
The grant of a privilege, license or franchise, by whatever
name it may be called, to occupy the streets of a' municipality
with gas pipes, for the purpose of supplying the public with
gas, vests such a right in the gas company that the municipality
cannot revoke or deprive it of such grant, unless it, by its
course of action, has laid itself liable to a decree of forfeiture.
The grant, when accepted, and especially after its terms have
been complied with, becomes a contract protected by the Fed-
eral Constitution.**' The only way it can be deprived of such
a gTant is for cause, and by due legal process. ^^ " The privi-
lege of the use of the public streets of a city or town, when
granted by ordinance,^s not alwaj^s a mere license, and re-
vocable at the pleasure of the municipality granting it; for if
the gi"ant is for an adequate consideration, and is accepted by
the grantee, then the ordinance ceases to be a mere license, and
becomes a valid and binding contract. And the same result is
reached where, in case of a mere license, it is, prior to its
revocation, acted upon in some substantial manner, so that to
revoke it would be inequitable and unjust." *^ Such an ordi-
nance cannot be repealed.*^
80 Louisville Gas Co. v. Citizens' ss Chicago, etc., Co. v. Lake, 130
Gas Co., 115 U. S. 683; 6 Sup. Ct. 111. 42; 22 N. E. Rep. 616; affirm-
Rep. ' 265 ; Gibbs v. Consolidated ing 24 111. App. 346 ; Illinois Trust,
Gas Co., 130 U. S. 396; 9 Sup. Ct. etc.. BanK v. Arkansas City, 76 Fed.
Rep. 553; People's Gaslight Co. v. Rep. 271; 22 C. C. A. 171; 40 U.
Hale. 94 111. App. 406; Walla Walla S. App. 257; 34 L. R. A. 518; State
V. Walla Walla Water Co., 172 U. v. Laclede Gaslight Co., 102 Mo.
S. 1; 19 Sup. Ct. Rep. 77; affirming 472; 14 S. W. Rep. 974; 15 S. W.
00 Fed. Rep. 957; Chicago, etc.. Rep. 383; 22 Am. St. Rep. 789.
Co.v. Lake, 130 111. 42; 22 N. E. so People v. Kent (111.), 12 Nat.
Rpp. 616; affirming 24 111. A^. Corp. Rep. 193.
346 ; Southwest Missouri Light Co. Notice of an intention to revoke
V. Joplin, 113 Fed. Rep. 817. its rights to the streets must be
87 People V. Deehan, 153 N. Y. given to a gas company before the
528; 47 N. E. Rep. 787; reversing revocation takes place. Jersey City.
11 N. Y. App. Div. 175; 42 N. Y. etc.. Co. v. Passaic (N. J. L.), 52
Supp. 1071. Atl. Rep. 242.
STREETS AND HIGHWAYS.
539
§490. Forfeiture of right to occupy streets for failure to per-
form duty.
There is no doubt of the right of a city to enforce a forfeiture
of the right of a gas company to occupy its streets Avith its
pipes on a continued faihire to comply with its agreement. A
single instance of failure would not, of course, be sufficient, al-
though it might give a right of action to recover damages ; but
a continued failure will be. An illustration of this can be
found in the case of a water company, where the court was of
the opinion that a city might enforce a forfeiture for a con-
tinued failure to supply wholesome water in a sufficient quan-
tity, even independent of a provision in the contract and ordi-
nance that the exclusive franchise granted should be forfeited
for such cause."" A promise on the part of the company to
do better in the future is no defense.®^
§491. Actions to declare forfeiture. — Quo warranto.
There is not such a uniformity in the decisions with refer-
ence to the enforcement of a forfeiture of a franchise because
90 Palestine Water, etc.. Co. v.
Palestine, 91 Tex. 540; 44 S. W.
Pvep. 814; affirming 41 S. W. Rep.
659.
See where the word " pure " in a
statute was construed to be " whole-
some " with respect to water. Com-
monwealth V. Towanda Water
Works (Pa.), 15 Atl. Rep. 440.
Sand in water damaging elevators,
liability to damages. Scottish,
etc., Co. V. Toronto, 24 Ont. App.
208.
91 Capital Water Co. v. State,
105 Ala. 406; 18 So. Rep. 62; 29
L. R. A. 743.
The owner of a franchise to lay
pipes m the streets of a city, con-
tracted with another to form a
gas company, the owner to furnish
the franchise and the other to fur-
nish all the money to build the
plant and lay the pipes. After
such other person had laid some of
the pipes, he abandoned the work.
It was held that since the pipes had
become attached to the casement be-
longing to its owner, such owner
became the owner by reason of the
abandonment, and such other per-
son had lost all rights in the pipes.
Joliet Gaslight Co. v. Sutherland,
68 111. App. 2.30. The same line
of reasoning would lead to the con-
clusion that the gas company would
also lose its rights to remove its
pipes, if it was to abandon the en-
terprise before its completion ; and
perhaps where a forfeiture was de-
clared. Qucere, if such were the
case, would the city or abutting
property owners become the owners
of the pipes?
540 OIL AND GAS.
of a violation of a contract with a municipality as is desirable.
In Michigan a petition for leave to fil6 an information in the
nature of a quo warranto to declare a forfeiture of a franchise
of a gas company, on the ground that it had failed to keep its
contract with the city was refused ; the court declaring that the
right under the contract to occupy the streets with gas pipes
was a mere license, and one in which the State had no concern,
its violation being merely a matter between the company and
the city.°" A similar decision was made in New York."^ But
there are a number of instances where it is held that the State
may bring the suit to have the charter declared forfeited be-
cause of a persistent violation of the company's contract with
the city."* In one case it was also held that the fact of the
city having the power to proceed against the company for in-
fractions of its duty, which was enforced by its charter and
the contract, was not a bar to the State to bring an action be-
cause of such infractions."^ And the reverse of this was held
where the city brought the suit to amend the contract because
of the violation of its terms."" ISTo doubt the State may bring
an action to have a forfeiture declared in all those instances
where the company is guilty of a violation of the laws of the
State, aside from the violation of its contract with or grant
from the municipality ; for such is a violation of the general
corporation laws."^ Such is an instance where a statute fixes
the price at which gas must be supplied;"^ or where it has
usurped the exclusive privilege of furnishing gas in a city in
92 People V. Mutual Gaslight Co., oe Palestine Water, etc., Co. v.
38 Mich. 154. Palestine, 91 Tex. 540; 44 So. W.
93 People V. Bowen, 30 Barb. 24; Rep. 814; affirming 41 S. W. Rep.
affirmed 21 N. Y. 517. 659.
94 Capital City Water Co. v. ot state v. Cincinnati, etc., Co.,
State. 105 Ala. 406; 18 So. Rep. 62; 18 Ohio St. 262; State v. Colum-
29 L. R. A. 743; Commonwealth v. bus, etc., Co., 34 Ohio St. 572; State
Towanda Water Works (Pa.), 15 v. New Orleans, etc., Co., 2 Rob.
Atl. Rep. 440; State v. JanesvilTe, (La.) 529; Wandsworth, etc., Co. v.
etc., Co., 92 Wis. 496; 66 N. W. Wright, 19 Gas. J. 407; 18 W. R.
Rep. 512. 728.
95 Capital City W^ater Co. v. 98 state v. Columbus, etc., Co.,
State, 105 Ala. 406; 18 So. Rep. 62; supra.
29 L. R. A. 743.
STREETS AND HIGHWAYS. 541
violation of a statute.^'' The State may, however, by its con-
duct or acquiescence be estopped to question the right of the
company to continue as a corporation ; especially so where the
illegal acts took place long time before — as eight years for
instance — and where some of the present stockliolders were
guilty of abetting such violation/*"* A pretended sale of all
the company's property will not deprive the State of its right
to forfeit its charter, even in the hands of the vendee, for a
failure to perform a corporate duty.^°^
§492. Waiver of right to declare forfeiture.
By its course of conduct a municipality may waive its right
to declare a forfeiture for failure to comply with the terms of
a contract, just as it may be estopped to have a void contract
set aside. Thus where a city in an ordinance gTanting a fran-
chise provided that if certain things should not be done within
fifteen months the company should forfeit its rights, it was
considered that the city had waived any forfeiture by recog-
nizing the ordinance in force after the fifteen months, by main-
taining its own wires wpon the electric company's poles, in
assessing and collecting taxes on the franchise granted, and in
failing to set up a claim of forfeiture in a number of suits
brought by the company against it to enforce certain rights
given by the contract. ^*'"
§493. Changing grade of street.
The fact that a contemplated change of the grade of a street
will interfere with the gas company's pipes does not prevent the
99 State V. Milwaukee Gaslight authorize a decree of forfeiture, al-
Co.. 29 Wis. 454. though it may be grounds for con-
100 State V. Janesville Water tempt proceedings. Newark v. Xew-
Power Co., 92 Wis. 496; 66 X. W. ark W. W. Co.. 4 Ohio X. P. 341;
Rep. 512. 6 Onio Dec. 518.
101 City Water Co. v. State. 88 102 Commercial, etc., Co. v. Ta-
Tex. 600; 32 S. W\ Rep. 1033; 33 coma, 17 Wash. 661; 50 Pac. Rep.
S. W. Rep. 259. 592. See Walla Walla v. Walla
A violation of an injunction Walla Water Co., 172 Fed. Rep. 1 :
against the enforcement of unrea- 19 Sup. Ct. Rep. 77, affirming 60
sonable rules is not sufficient to Fed. Rep. 957.
542 OIL AND GAS.
change, nor lay the city liable fur damages to the company
occasioned therehy. Xor is the city liable to the company for
the expense incurred in lowering or otherwise changing its pipes
so as to conform to the new grade/"'^ Xor can the gas com-
pany impose wpon adjacent lot owners, the expense it has in-
curred in taking up and relaying its pipes, required by a change
of grade ; it must make such changes at its own cost.^''* If it
is necessary to place drainage pipes or sewers in the street, the
municipal authorities may compel the company to raise or lower
its pipes, if such action be necessary to secure a proper loca-
tion for theni/"^ Under a statutory power to contract for light-
ing of its streets upon such terms and conditions as it shall
deem expedient, a city is empowered to agree, in the original
grant of a franchise, that it will reimburse the gas company
for all damages occasioned it by a change in the grade of a
street."' ^
§494. Tearing up streets. — Obstructions. — Indictment.
Xo one can open streets and lay down pipes Avith which to
supply the inhabitants of the municipality with gas or water
unless authorized so to do. If he do so, without proper au-
thority he is subject to indictment and punishment. ^'^" If a
103 Belfast Water Co. v. Belfast, [1898], 2 Ch. 603; 67 L. J. Ch.
9-Z Me. 52; 42 Atl. Rep. 235; Colum- 657; 79 L. T. 132; 47 W. R. 107;
bus, etc., Co. V. Columbus, 50 Ohio 62 J. P. 756.
St. 65; 33 N. E. Rep. 292; 19 L. R. los Bryn Mawr Water Co. v.
A, 510; Jamaica Pond, etc., Co. v. Lower Marion Tp., 15 Pa. Co. Ct.
Brookline, 121 Mass. 5; Roanoke Rep. 527; 4 Pa. Dist. Rep. 157.
Gas Co. V. Roanoke, 88 Va. 810; loe Parfitt v. Furgason, 3 N. Y.
14 S. E. Rep. 665; Brenham v. App. Div. 176; 73 N. Y. St. Rep.
Brenham Water Co., 67 Tex. 543; 621; 38 N. Y. Supp. 466; affirming
4 S. W. Rep. 143; National W. W. 159 N. Y. Ill; 53 N. E. Rep. 707.
Co. V. Kansas City, 20 Mo. App. lo- Attorney General v. Sheffield
237; National W. W. Co. v. Kan- Gas Consumers' Co.. 3 De G. M.
sas City, 28 Fed. Rep. 921; ^.ock- and G. 304; 22 L. J. Ch. 811; 17
land W. W. Co. v. Rockland, 83 Me. Jur. 677; 1 W. R. 185; 2 Gas. Jr.
267; 22 Atl. Rep. 166. 396, 419; 19 Eng. L. and Eq. 639;
104 /n re Deering, 93 N. Y. 361; Regina v. Sheffield Gas Consumers'
Pocatello Water Co. v. Standley Co., 18 Jur. 146, note; Regina v.
(Idaho), 61 Pac. Rep. 518; Soutli- Longton Gas. Co., 2 E. and E. 651;
vrark, etc., Co. v. Wandsworth 29 L. J. M. C. 118; 6 Jur. (N. S.)
STREETS AXD HIGHWAYS, 543
company open more streets than is necessary, at any one time,
it may be indicted ; but if it has agreed to pay the municipality
so much per square yard for all of the surface removed, it
cannot defend on the ground that in so doing it was liable to
indictment and therefore the agreement was void/''^ It is not
an indictable nuisance to temporarily obstruct a street in lay-
ing down pipes under authority given. ^^'^ But where the high-
way was eight yards wide, and the gas company dug three
trenches, two across it and one parallel with it, these three
trenches being kept open at night but closed at three o'clock in
the morning; and later other trenches were opened from eleven
at night until two o'clock next afternoon, it was held that the
company was liable to an indictment for unnecessarily ob-
structing a highway/^** And where a gas company had no au-
thority to lay its pipes in the street, an abutting property owner
who took up the pavement, placed bricks and earth therein, so
as to obstruct the highway, to put in a service pipe, was held
subject to an indictment, and that he could not justify his
actions on the ground that every householder had the right
to make such temporary obstruction of a footway or highway
as was necessarily incident to the enjoyment of his property/^^
§495. Cutting into modern pavements. — Repairs. — Permission.
The gTant of a right by a municipality to lay and repair
mains in its streets cannot be subsequently taken away from it
on the ground that new and other methods of improving the
streets have been introduced since the original grant has been
made ; and especially is this true where the grant bound the
601; 2 L. T. (N. S.) 14; 8 W. R. But see Hawkins v. Robinson. 37 J.
293; 8 Cox C. C. 317; Attorney P. 662, and Wright v. Stears, 48
General v. Cambridge Consumers' Gas J. 1068.
Gas. Co., L. R. 4 Ch. 71; 38 L. J. no Regina v. Colne Valley Gas
Ch. 04; 19 L. T. (N. S.) 508; 17 Co.. 29 Gas. J. 498, 781; 30 Gas.
W. R. 145. J. 218.
los Edgeware Highway Board v. m Regina v. Longton Gas Co.. 2
Harrow District Gas Co., L. R. 10 Ell. and Ell. 651; 2 L. T. (N. S.)
Q. B. 92; 44 L. J. Q. B. 1; 31 L. T. 14; 8 Cox C. C. 317; 29 L. J. M. C.
(N. S.) 402; 23 W. R. 90. 118; 8 Gas. .J. 165; 9 Gas. J. 114;
100 Preston v. Fullwood, supra. G .Jur. (X. S.) 601; 8 W. R. 293.
544 OIL AND GAS.
company to speedily repair the portions of the street it liad
opened for the purpose of laying and repairing its mains. Nor
can a municipality by a subsequent ordinance require a com-
pany to first obtain permission of it to lay or repair its mains,
when it had that right, without first obtaining such permission,
under its original grant or franchise. " The appellee," said the
Indiana Supreme Court, " had been granted the right to use
the streets for the purpose mentioned, and the mere fact that
any particular street was thereafter paved with brick or maca-
dam would not deprive appellee of exercising its rights under
the ordinance upon which it relies. This is manifest when
we recognize that the conditions of the bond required of the
corporation availing itself of the franchise gi'anted were, that
all streets should be restored to as good a condition as they were
before, and to maintain the pavement in good repairs where
the city had an agTcement with the contractor to like effect.
As said by the learne?^ counsel for appellee : ' If a macadam-
ized pavement covers up the appellee's rights, so would one
constructed of gravel, and so would even slight repairs, for
the conditions of the streets would be changed from what it was
when the ordinance was accepted.' It is evident, we think, that
the contention has no support." Of the ordinance requiring
permission of the city board of w^orks before a pavement would
be cut into for repairs, the court also said : " We judicially
know that by reason of changes occurring from extensive heat,
cold and pressure, leaks will and do occur in gas pipes, Avhich
require immediate repair. If, then, it should be held that in
making these repairs — wherein it would be necessary to un-
cover the mains — the appellee must await the pleasure of the
council and board of aldermen in giving consent, it would be
virtually in the same condition as though it had not secured
■the rights and franchise under " the prior ordinance.^^" So
an ordinance forbidding £i gas company to excavate in a paved
112 Indianapolis v. Consumers' See Western Paving, etc., Co. v.
Gas Trust Co., 140 Ind. 107; 39 Citizens', etc., Co., 128 Ind. 525; 26
N. E, Rep. 433; 27 L. R. A. 514. N. E. Rep. 188; 28 K E. Rep. 88.
STREETS AXD HIGHWAYS. 545
street in order to lay pipes from its mains to the opiposite side
of the street is so unreasonable as to be void."^
§496. Injury to pipes in repairing streets.
A municipality has the right to repair the streets in which
gas pipes are lawfully laid, but it must in doing so have a just
i-egard for the property of the gas company. It may not re-
pair them in a manner to injure such pipes, when at least the
repairs can be so made, although in a less convenient way.
Thus where the fee of the street was vested in the vestry of the
parish, the pipes were lawfully located in the street, and in re-
pairing them it used a steam roller, being a mode of repair
most advantageous to Ixjtli the taxpayers and the public, but
the roller was so heavy as to injure the pij^es ; the court not
only gave damages to the gas company, but declared that it was
entitled to an injunction to restrain the use of the roller in
such a way as to injure the. pipes. ^^* In Ireland an injunction
was entered " against using any steam roller on any road under
which the gas pipes of the plaintiffs have been laid so as to
break or injure any pipes then properly laid under such road,
regard being had to what, at the time of the laying of such
pipes, was then the ordinary traffic, and the then reasonable
means of repairing and maintaining the road." ^^^ If a city
let a contract to construct a sewer to a contractor it knows to
be incompetent, it will be liable for damages to a gas company's
pipes which he may, because of such incompetency, occasion
them.^^*' But the city is not liable where it builds a sewer
itself, and injures the pipes of a company, if the injury is not
113 Northern Liberties v. Xorth- See 49 Gas Jr. 765, 811; 50 Gas Jr.
ern Liberties Gas Co., 12 Pa. St. 1018.
318. Where a hea^'y roller broke a
114 Gaslight and Coke Co. v. Ves- gas main, whereby gas escaped into
try of St. IVIary. 15 Q. B. Div. 1 ; a house and caused an injury, it
54 L. J. Q. B. 414 ; 53 L. T. 457 ; 33 was held that there was evidence of
W. R. 8^2; 49 J. P. 459. negligence against the municipality.
115 Alliance, etc.. Gas Co. v. Dub- Driscoll v. Public Board of Works,
lin. Gas Jr.. June 26. 1900, 14 f. L. Rep. 99; 62 J. P. 40.
p. 1733, and July 10, 1900, p. 100. noXorwalk Gaslight Co. v. Nor-
walk, 63 Conn. 495; 28 Atl. Rep. 32.
546 OIL AND GAS.
inflicted because of negligence on its part."^ Where a gas
company, in ignorance of the true location of its pipe line in
a certain street, though both its bookkeeper and collector told
a street railway it was in the middle of such street, the book-
keeper and collector believing the statement to be true, and
the railway company having made the inquiry in order that
it might avoid laying its track over such pipe line, all of which
the gas company knew at the time it gave the supposed location
of its pipe line ; and thereupon the railway company laid its
track on one side of the street but immediately over the pipe
line, being misled by such statements as to its true location,
it was held that the gas company was not estopped to take
up its pipe in order to repair it, although in so doing it had to
remove the track of the railway company. The court did not
consider that the bookkeeper and collector were such agents as
to make their statements about the location of the pipe line
binding upon the gasj^ompany. It was declared, though, that
it was the gas company's " duty to know the precise location
of their pipes, and to be able to give correct information con-
cerning the same to those who had a right to demand it ; and
if a gas company wrongly represents the location of its pipes,
so as to lead a railway company to lay its track over them when
it was seeking to avoid them, then such company would be
estopped from claiming the right to disturb the track, even
though the gas company was mistaken in regard to the location
of the pipes at the time the representations were made." ^^^
§497. Support of gas mains.
If a company has a right to lay its pipes in a street, it has
a right to a supjxirt for them of the underlying soil ; and if
the owner of the underlying soil, or any one mining therein,
117 Brunswick Gaslight Co. v. which has been established under
Brunswick, 92 Me. 493; 43 Atl. authority of law. Boyer v. Little
Rep. 104. " Falls, 5 X. Y. App. Div. 1; 38 N.
A city in putting in its own gas Y. Supp. 1114.
works is liable for trespass if it us Davenport, etc., Ry. Co. v.
interfere with and injure a private Davenport Gaslight Co., 43 la. 301.
system for supplying gas therein,
STREETS AND HIGHWAYS. 54:7
even with a right so to do, take away such support and injure
the pipes, he will be liable in damages ; and that, too, even
though he is entitled to damages under an arbitration proceed-
ing for the extra burden of the pipes upon the fee of the high-
way. What is true of one occupying the highway, is also true
of one rightfully occupying a private right of way.^^^ But
if the gas company has laid its pipe line in the soil of another
without license so to do, then it is not entitled to support ; nor
to compensation in dainages for a failure to give it.^'"
§498. Gas boxes in street.
A gas box in the street, giving access to a cock in the service
pipes conducting gas from the main to the house or building
supplied with gas, is a part of the company's apparatus ; and
although lawfully in the street, the company is bound to exercise
care to prevent injury to persons using the street or sidewalk.^^^
The court, however, cannot say as a matter of law that a box
seven and a half inches long and five and a quarter wide, by
one and a half high, extending one and a half inches into the
traveled portion of a sidewalk is not a nuisance, in the absence
of any evidence showing the exigencies of public travel in the
street.^'"
§499. Leaving' gasposts in streets.
When gas posts are no longer used, it is the duty of the gas
company to remove them, for they are an obstruction in the
119 Normanton Gas Co. v. Pope, from the company the amount of
52 L. J. Q. B. 629; 32 W. R. 134; damages it had been compelled to
49 L. T. 798. See Benfieldside L. pay a person injured by reason of
B. V. Consett Iron Co.. 3 Exch. Div. the company having permitted the
54; 47 L. J. Exch. 491; 38 L. T. gas box to get out of repair. In
530; 26 W. R. 114. England apparatus of this kind
120 Middle, etc.. Co. v. Oakbank seems to belong to the consumer.
Oil Co., 18 Ct. Sess. Cas., 4th Series Ward v. Folkstone W. W. Co., 24
788. Q. B. Div. 334; 59 L. J. M. C. 65;
121 Washington Gaslight Co. v. 62 L. T. 321; 38 W. R. 426; 54 J.
District of Columbia, 161 U. S. P. 628; Folkstone v. Downing, . 54
316; 16 Sup. Ct. Rep. 564; 24 Gas. J. 313.
Wash. L. Rep. 470, affirming 20 122 Staples v. Dickson, 88 Me.
D. C. 39. In this case the consumer 362 ; 34 Atl. Rep. 168. But see
paid the cost of putting in the box. Loan v. Boston, 106 Mass. 450.
The city was allowed to recover
548 OIL AND GAS.
street. A gas compariy has the right to maintain gas posts in
a street solely by reason of the fact that it supplies light for
the streets ; and Avhen it ceases to supply the light, it must re-
move its posts, or else lay itself liable for such damages as
may be occasioned thereby.^"^
§500. Pipes in streets not an additional burden.
Pipes of a gas company laid in the streets of a municipality
are not an additional burden on the fee of the street for which
the abutting lot owner is entitled to compensation. Such a
burden is contemplated, in legal contemplation, when the streets
are dedicated, or ground taken for them under the power of
eminent domain.^'* Of course, the duty to serve the public is
always an element underlying all grants of a right to use the
streets ; and this is considered the compensation that the abut-
ting property owner receives for the use of his property. ^^^
§501. Pipes laid in navigable river.
Xor may a gas company lay its pipe line on the bed of a
navigable river ; if it desires to cross such a stream it must
bury its pipe line beneath the bed thereof. Thus where a com-
pany had full power to lay and maintain pipes for transporta-
123 New Orleans Gaslight Co. v. N. Y. Supp. 560; affirmed 142 N. Y.
Hart, 40 La. Ann. 474; 4 So. Rep. 626; 37 N. Y. Rep. 56.5.
415. In Palmer v. Larchmont, etc.,
. 124 Smith V. Goldsboro, 121 N. C. Co., supra, it is said that the neces-
350; 28 S. E. Rep. 479; Boston v. sity for a light in a highway was
Richardson, 13 Allen 160; Crooke for the municipal authorities to de-
V. Flatbush W. W. Co.. 29 Hun 245 ; termine, and not for the court in a
West V. Bancroft, 32 Vt. 367 ; Pal- case of ejectment.
mer v. Larchmont, etc., Co., 158 N. In Providence Gas Co. v. Thur-
Y. 231; .52 N. E. Rep. 1092 (electric ber, 2 R. I. 1.5. it was held that a
light poles). See Columbia Con- gas company having an incorporeal
duit Co. V. Commonwealth. 90 Pa. easement and not a mere license in
St. 307 ; Quincy v. Bull, ]/)6 111. the streets Avas estopped from
337; 4 Am. and Eng. Corp. Cas. claiming that its grant under the
554. charter Avas void, because no com-
125 Ampt V. Cincinnati, 6 Ohio pensation was provided thereliy for
N. P. 401 : Witcher v. Holland the owners of the land tlirough
Water Works Co., 66 Hun 619; 20 which its pipes passed.
STREETS AXD HIGHWAYS. 549
tion of gas, laid an eight-inch main on tlie bottom of a navigable
river it was crossing; and a steamboat came along, ran into the
pipe without fault, and broke it, and gas thereby escaped, en-
tered the furnaces of the boat and exploded, the gas company
was held liable for all damages occasioned by the explosion ;
for the pipe was wrongfully placed on the surface of the river
bed/"'^ If a gas company has the right to lay its mains across
a river, it must do so that they will neither impede nor hinder
boats using such river; and if it do not, and the mains are
injured by boats passing up and down the river, the gas com-
pany cannot recover damages for such injuries/"' And if a
gas main is so laid in a navigable river that it impedes naviga-
tion, a vessel caught in passing and detained thereby may re-
cover as damages the actual expense of getting free from the
obstruction, but not for delay in its business or other conse-
quential damage/"^
§502, Grant of right to use suburban highway. — Compensation to
abutting land owner.
The owner of land abutting on a rural highway has such an
interest in it that the legislature cannot authorize gas companies
to lay their pipe lines in it without providing a method for
compensating him for all damages he may suffer by reason of
the additional burden upon the fee.^'^
126 Omslear v. Philadelphia Co., river as to -work a private (not a
31 Fed. Rep. 354. public) injury, it will be liable to
127 Milwaukee Gaslight Co. v. the person injured. Manhattan
Schooner Gamecock, 23 Wis. 144. Gaslight Co. v. Barker, 7 Robt. (N.
See Municipal Chamber of Ham- Y.) 523.
burg V. Gas Company, 5 Gas. J. 129 Consumers', etc.. Co. v. Hunt-
710. singer, 14 Ind. App. 156; 42 N. E.
12s Benson v. Maiden, etc., Co., 6 Rep. 640; Kincaid v. Indianapolis,
Allen 149. etc., Co.. 124 Ind. 577; 24 N. E.
As to being deprived of use of Rep. 1066; 8 L. R. A. 602; Board
public wharf by a gas company, see v. Indianapolis, etc.. Co., 134 Ind.
Wetmore v. Brooklyn Gaslight Co., 209 ; 33 N. E. Rep. 972 ; Krueger v.
42 N. Y. 384; rent therefor, People \Yisconsin Tel. Co., 106 Wis. 96;
v., San Francisco. 54 Cal. 248; and 81 N. W. Rep. 1041; 50 L. R. A.
tolls, Soule V. San Francisco. 54 298; Postal Telegraph and Cable
Cal. 241. Co. V. Eaton, 170 111. 513; 49 N. E.
If a gas company so befoul a Rep. 365.
550 OIL AND GAS.
§503. Condemnation of land owner's interest in highway.
Proceedings under the power of eminent domain, to condemn
the abutting L^nd owner's fee in the highway, does not affect
the right of the public, uor give the gas company the right to
use the highway without the consent of the public authorities.
In addition to a judgment of condemnation, the gas company
must procure the consent of the public authorities to use the
highway.^""
§504. Land owner acquiescing in occupation of rural highway. —
Injunction. — Estoppel.
While an owner of land abutting upon a rural or suburban
highway is entitled to compensation for the additional burden
imposed by the laying of pipe lines in such highway, because
of the additional burden they impose upon his land beneath
the easement ; yet if ne stands by and makes no objection to
the laying of the pipes until they are put to an actual use, he
will be estopped to then prevent their use. This is espe-
cially true if the company laying the pipes is engaged in a
public service. " There was an assertion of a right to use the
highway," it was said in one case, " and the gas company had
expended large sums of money on the faith of the license
granted to it by the board of commissioners. It had assumed
to use the highway for a public purpose, and many citizens
had acquired rights upon the faith of the successful and ef-
fective prosecution and conduct of the work and business un-
dertaken by the company. The appellant, with knowledge of
the facts, made no objection until the completion of the main
line and system, but delayed until they had been completed
and then asked an injunction. To grant the relief he seeks
Avill, it is clearly inferable, seriously impair the rights of the
public as well as those of the gas company. We are satisfied
that upon the case mad^by the evidence, the appellant is not
entitled to an injunction. In adjudging that he has no right
i-c Board v. Indianapolis, etc.,
Co., 134 Ind. 209; 33 N. E. Rep.
072.
STREETS AA'D HIGHWAYS. 551
to an injunction, we do not hold that he may not, in a proper
case, recover damages for the invasion of his legal right. What
we here decide is, that the case made is not one justifying resort
to the extraordinary remedy of injunction. The effect of our
decision is that he has mistaken his remedy. The work in
which the gas company is engaged is one in which the general
community have an interest, and to arrest the work by injunc-
tion would do great injury to many citizens. Persons other
than the company have an interest, and they are so numerous
that it is the duty of the courts to protect that interest where
it can be done without materially impairing the rigjits of any
private citizen, and that can be done in this instance, for the ap-
pellant, in the appropriate action and upon making a proper
case, can be fully comjTensated for all injury that he may have
suffered. There is here an element of public policy which ex-
erts a controlling interest. The good of the community forbids
that one who occupies such a position as the appellant does
should be permitted to arrest work essential to the successful
discharge of the company's duty to supply the community with
fuel in the form of natural gas. Public policy, as has been
demonstrated in analogous cases, requires that the rights of
the community should be protected, and the land owner left to
his remedy at law. Xor does this rule operate unjustly, for the
land owner is not deprived of compensation ; on the contrary,
the right to compensation is left open to him, and it is his
own fault if he does not recover full compensation for all the
loss he has actually sustained. Blended with the element of
public policy is another influential one, and that is this : The
appellant objecting knowingly permitted the work to proceed
until it reached a stage at which it would be ruinous to the
company which had invested such large sums of money to stop
it by injunction. These two elements, in their combined
strength, certainly make a case in which an injunction should,
upon plain principles of equity, be denied." ^^^ But the mere
131 Kincaid v. Indianapolis, etc., 285 ; 40 N". E. Rep. 34 ; Consumers',
Co., 124 Ind. 577; 24 N. E. Rep. etc., Co. v. Huntsinger, 14 Ind. App.
1066; 8 L. R. A. 602; Consumers'. 156; 42 N. E. Rep. 640.
etc., Co. V. Huntsinger, 12 Ind. App.
552 OIL AND GAS.
fact tliat the owner of the abutting Land made no ohjection to
laying pipe lines in one highway will not estop him to object
to the laying of a pipe line in another highway upon which
his land abuts/^' So if the owner of the fee did not know of
the laying of the pipe line in the highway at the time it was
laid, the mere fact that he made no objections^ after he found
out the fact about it, to the line or its maintenance will not
estop him from asserting a right to have it removed. ^"^
§505. Pipe lines in country highway an additional burden on
the fee.
The easement the public acquires in a right of way taken
for a country or suburban highway is one solely of passage — a
right to travel along it — and no other. "" Subject to the right
of the public," says the Supreme Court of Indiana, '' the owner
of the fee of a rural road retains all rights and interest in it.
He remains the owner, and, as such, his rights are very com-
prehensive. . . . The appropriation of the land for a rural
highway did not entitle the local officers to use it for any other
than highway piurposes, although they did acquire a right to use
it for all purposes legitimately connected with the local system
of highways. A use for any other than a legitimate highway
purpose is a taking Avithin the meaning of the Constitution,
inasmuch as it imposes an additional burden upon the land, and
whenever land is subject to an additional burden the owner is
entitled to additional compensation. The authorities, although
ilot very numerous, are harmonious npon the proposition that
laying gas pipes in a suburban road is the imposition of an ad-
ditional burden, and that compensation must be made to the
owner." ^^* An injunction Avill be granted to protect the rights
132 Consumers', etc.. Co. v. Hunt- Co.. 124 Incl. 577 ; 24 N. E. Rep.
singer. 14 Ind. App. 156; 42 N. E. 1006; 8 L. R. A. 602; Bloomfield,
Rep. 640; Consumers', etc.. Co. v. etc.. Co. v. Calkins, 62 N. Y. 386;
liuntsinger, 12 Ind. App. ^5 ; 40 1 T. and C. ,549; Bloomfield, etc.,
N. E. Rep. 34; Galbreath v. Ar- Co. v. Richardson, 63 Barb. 437;
monr, 4 Bell App. Cases 374. Sterling's Appeal. 116 Pa. St. 35;
i33HiiflFman a\ State. 21 Ind. Wel)b v. Ohio Gas Fuel Co..
App. 449; 52 N. E. Rep. 715. 16 ^Y]dy. Law Bull. 121; 9
134 Kincaid v. Indianapolis, etc., Ohio Dec. Rep. 662; Biddle v.
STREETS AND HIGHWAYS. 553
of au abutting- land owner, even tliongli the soil under the high-
way is of no actual value to liim.^""'
§506. Consent of county. — Public highways, crossing.
^Vhere the road is beyond the limits of a city or town, then
the consent of the county authorities must be obtained before
laying the gas pipes or mains therein. As a rule, the laying
of gas pipes in a public highway without consent of the proper
authorities is such an act as will lay the individuals doing it
liable to an indictment and ]ninishment. " It seems to us,"
said one court, '^ that when the Salemonie Gas Company en-
tered upon the lands in question without the consent of the
owner of the fee, and without permission of the board of county
commissioners, it became a trespasser, and was upon such lands
unlawfully." '''■ Where a statute gave a natural gas company
authority '' To dig its trenches, to lay its pipe lines over, across
or under any . . . road, highway or railroad, so as to not
interfere with the free use of the same, which the route thereof
shall intersect, in such manner as to afford security for life or
pro})erty ; and whenever the board of county commissioners of
the proper county shall so direct, said trenches and pipe lines
may be constructed and laid along the right of way of any road
or highway, but in all cases where said trenches or pipe lines
shall be laid across, upui or along any general road, or highway
thus intersected, said company . . . shall immediately re-
store the same to its former state," it was held that while the
natural gas company could cross a public highway without the
consent of the board of county commissioners, it could not lay
Wayiie \V. W. Co.. 7 Del. Co. Rep. i-5 Goodson v. Richardson. L. R.
161; Murray v. Gibson, 21 111. App. 9 Ch. 221; 43 L. J. Ch. 790; 30
488 (a drain) ; Indiana, etc.. R. R. L. T. (N. S.) 142; 22 W. R. 337;
Co. V. Hartley. 67 111. 439 (a Clippens Oil Co. v. Edinburgh, etc.,
drain) ; Board, etc., Co. v. Barnett, 25 Rettie 370.
107 111.507 {a drain) ; Consumers', i^e Huffman v. State, 21 Ind.
etc., Co. V. Huntsinger. 14 Ind. App. App. 449; 52 X. E. Rep. 713; Con-
156; 42 N. E. Rep. 640. See Co- sumers', etc., Co. v. Huntsinger, 14
lumbia Conduit Co. v. Common- Ind. App. 156; 42 N. E. Rep. 640.
wealth, 90 Pa. St. 307.
554 OIL AND GAS,
its pipe lines along it witlioiit first obtaining consent from them
to do soJ^'
§507. Revocation of license to use highway.
Having once granted to a gas company the right to use the
rural highway of the county, the county authorities cannot re-
voke the right if the company has accepted and acted upon
it; and in an action to prevent the company from laying its
pipes in the highway over which the right was granted to lay
pipe lines, the county must not only show facts entitling it to a
rescission, that the company had not acted in good faith upon
the license granted, and that it was, at the time the suit Avas
instituted, attempting or threatening the use of the highway
for the purpose given it in such license.^^^
§508. Abutting land owner removing pipe lines.
If pipe lines have been laid in a public highway without the
consent of the abutting land owner, and without comi:iensation
to him because of the additional burden on the fee, he may re-
move them ; and neither he nor those assisting him will be
liable, in the absence or use of unnecessary force or violence. ^^^
§509. Company may not remove pipes unlawfully laid in rural
highway.
If a gas company lay pipe lines in a rural highway without
the consent of the abutting land owner, it may not remove them
Avithout his consent. As soon as they are placed in the soil they
become a part of the freehold ; and their removal by the com-
pany lays it liable to an indictment for trespass upon the land
in which they are embedded. " It seems to us," said the Ap-
pellate Court of Indiana, " that when the Salemonie Gas Com-
137 Consumers' Gas Trust Co. v. i38 Board v. Indianapolis, etc.,
Huntsinger, 14 Ind. App. 1^6; 42 Co., 134 Ind. 209; 3.3 N. E. Rep.
]SJ. E. Rep. 640; Board v. Indianap- 972.
olis, etc., Co., 134 Ind. 209; 33 N. "o Consumers', etc.. Co. v. Hunt-
E. Rep. 972; Consumers', etc., Co. singer, 14 Ind. App. 156; 42 N. E.
V. Huntsinger, 12 Ind. App. 285; 40 Rep. 640.
N. E. Rep. 34.
STREETS AXD HIGHWAYS. 555
pany entered upon the lands in question without the consent of
the owner of the fee, and without permission of the board of
county commissioners, it became a trespasser, and was upon
such hinds unlawfully. If it was unlawful in the first place
to go upon the lands to construct the pij^e line, without the
consent of the owner, it was likewise unlawful to go upon them
to remove the same, and hence when appellant was upon the
lands of the prosecuting witness, in charge of a force of men
engaged in removing such pipe line, he was unlawfully there.
While appellant was not himself engaged in the manual re-
moving of the pipe, he was directing and overseeing the work
of removal." " Xeither a private person nor a corporation has
any inherent right so to use a public thoroughfare, and where
the proper steps have not been taken to acquire such right, it
is a trespass, within the meaning of the statute, so to do. So,
when the appellant went upon the land of the prosecuting wit-
ness to take up the pipe line, he was there unlawfully; and
when he refused to depart, upon being notified to do so, it was
a violation of the statute, for which he must answer." ^*^
§510. Pipes on surface of highway or street.
Whatever may be the right to lay gas pipes in a highway or
street, it is clear that none can be acquired to lay the pipes on
its surface. A street or highway is for public travel, and not
for private purposes. It must l>e free from obstructions to
travel from side to side, from end to end. If pipes are laid
on the surface of a street or highway, the company will be liable
for all damages occasioned thereby, even though such damages
would iiot have been occasioned by the pipes if they had l3een
buried in trenches."^ " It is a nuisance and unlawful to place
and keep or leave continuously in a public highway anything
which either impedes or endangers public travel. This rule
applies to the whole width of the highway, and not merely to
a worn portion of it commonly used for passage. Privileges
140 Huffman v. State. 21 Ind. Ind. 443; 39 N. E. Rep. 57; 29 L.
App. 449; 52 X. E. Rep. 713. R. A. 342.
141 Lebanon, etc., Co. v. Leap, 139
556 OIL AXD GAS.
which, if usurped by a greater iniuiLer of persons or corpora-
tions would change the road from a public easement to a mere
special benefit or convenience to such usurpers, are not lawful
for any of them. The user must be consistent with the con-
tinued use of the road every part thereof as a passageway by
all persons exercising ordinary care." "' In the case from
which this quotation is made, a half-inch gas pipe, the thickness
of the iron being one-eighth of an inch, was laid in the highway
four feet from the fence ; and it was hid by weeds, and grass
that covered it, having laid there several years. A stranger
to that neighborhood was taking a traction engine into a field
bordering on the highway, and not knowing of the existence of
the pipe, ran over it, broke it, and an explosion followed, to
his injury. It was held that the company laying the pipe in
the highway were liable to recompense him for his injuries.
So where a boy eighteen years of age, passing along a highway,
stopped to look at burnipg gas escaping from a pipe laid in such
highway, and he was told by another boy with him, that if he
would raise up the pipe it would make a nice fire, which he
did, and an explosion followed, to his injury, it was held that
he could recover, and that he did not so contribute to the ex-
plosion so as to bar his right to recover damages. ^*^
1*2 Indiana, etc., Co. v. McMath, pra. See Ohio Gas Fuel Co. v. An-
26 Ind. App. 154; 57 N. E. Eep. drews, 50 Ohio St. 695; 35 N. E.
593; 59 N. E. Rep. 287. Rep. 1059; 29 L. R. A. 337.
143 Lebanon, etc., Co. v. Leap, su-
CHAPTER XXIV.
MUNICIPALITY SUPPLYING GAS.
§511. Municipality may be authorized to own gas plant.
§512. Sufficiency of statute to authorize municipality to furnish gas for
commercial purposes.
§513. Insufficiency of statute to authorize a municipality to furnish com-
mercial gas.
§514. Construction of municipal charters.
§515. Municipality's profit.
§516. Competition with private plant.
§517. Election to authorize purchase or erection of plant.
§518. Municipality must be sole proprietor of plant. — Taking stock.
§519. Right to purchase plant of gas company.
§520. Trustees for gas works.
§521. Sale of municipal plant.
§522. Municipality may lease its own gas works.
§523. Rules and regulations.
§511. Municipality may be authorized to own gas plant.
It is clear that a municipality cannot own a gas plant and
supply its inhabitants with gas for lighting, heating or power
purposes unless some statute in direct terms, or by very strong
implication, authorizes it.^ It is universally the case that such
institutions of government are authorized to supply their in-
habitants with water ; but the practice has not been so universal
with reference to light ; although the practice is almost daily
growing, to extend such jiower to them. The ])0wer of the
legislature to authorize a municipality to furnish light for com-
mercial purposes to its inhabitants received a very careful ex-
amination by the justices of the Supreme Court of Massachu-
setts as late as 1890. The constitution of that State authorizes
the general court to make " all manner of wholesome and rea-
sonable orders, laws, statutes, and ordinances," and to levy
1 Ladd V. Jones, 61 111. App. 584.
557
558 OIL AND GAS.
" proportional and reasonable assessments, rates, and taxes,
. for the public service, in the necegsary defense and
support of the government of said commonwealth, and the pro-
tection and preservation of the subject thereof." Under this
power tfie court was of the opinion, when an opinion was re-
quested of it by the legislature, that it could authorize a mu-
nicipality to not only buy or purchase a gas or electric lighting
jilant to light its streets and public buildings ; but it could also
supply its inhabitants with gas and electricity for private pur-
poses. The opinion, however, is confined to the power to fur-
nish gas or electricity for lighting purposes, and nothing is said
concerning the furnishing of these commodities for heating or
power.^ In other States similar opinions have been given.''
To levy a tax to build a plant and supply gas for lighting the
streets, and also for domestic purposes, is to levy one for public
purposes ; and it cannot be defeated on the ground that it is for
a private purpose, or a business in which only a private corpora-
tion is authorized to eiiter upon. It is the duty of a munici-
pality to light its streets and public places in order to protect
the lives and property of its citizens from thieves, robbers and
murderers ; * and it is a necessity that its public buiklings
should be lighted in order that its business may be properly
transacted. But to erect a plant for these purposes would
necessarily result in a loss to the municipality unless there is
connected with it the power to furnish gas to the private con-
sumer. The business of furnishing gas to a municipality is
of such a monopolistic character that if it should undertake to
furnish it for municipal purposes alone it would be very often
impossible for its inhabitants to secure gas from a private
source; for in the average municipality one gas company is
2 Opinion of the Justices, 150 v. Chambersburg, 160 Pa. St. 511;
Mass. 592; 24 N. E. Rep. 1084; 8 28 Atl. Rep. 842; Hamilton Gas-
Ij. R. a. 487; Citizens' Gaslight Co. light and Coke Co. v. Hamilton.
V. Wakefield, 161 Mass. 432; 37 N. 146 U. S. 258; 13 Sup. Ct. Rep.
E. Rep. 444; GraeflF v. Feli*, 24 90; affirming 37 Fed. Rep. 832.
Pa. Co. Ct. Rep. 657. 4 Crawfordsville v. Braden, loO
3 State V. Hamilton, 47 Ohio St. Ind. 149; 28 N. E. Rep. 849; 14 L.
52; 23 N. E. Rep. 935; Wheeler v. R. A. 268; 30 Am. St. Rep. 214.
Philadelphia, 77 Pa. St. 338; Linn
MUNICIPALITY SUPPLYIXG GAS. 559
sufficient to supply all the gas needed within its boundaries,
and two companies cannot operate with a sufficient profit to
maintain their plants. If, therefore, a municipality could not
supply its inhabitants with gas for domestic purposes they
would often, indeed in a very large majority gf cases, be en-
tirely deprived of its use. The rule is universal that taxation
for the purjwse of building gas and electric plants for lighting
purposes by municipalities is sucli a public subject as author-
izes taxation for that purpose.^ In furnishing gas to private
consumers a city acts in its capacity as a private corporation
and not by virtue of its powers of local sovereignty. In such
a case the municipality is bound by its contracts with its in-
habitants, and the legislature cannot authorize it to violate
them.*'
§512. Sufficiency of statute to authorize municipality to furnish
gas for commercial purposes.
Where a statute in direct terms authorizes a municipality to
furnish gas for commercial purposes, there is no room for con-
struction ; but where the power is an implied one difficulties
arise. This difficulty is very well illustrated by an Indiana
case. In that State a statute gave a city or town " power to
light the streets, alleys and other public places of such city or
town with the electric light, or other form of light, and to
contract with any individual or corporation for lighting such
streets, alleys and other public places with the electric light,
or other form of light, on such terms, and for such times, not
exceeding ten years, as may be agreed upon." Under this
statute it w^as held that a municipality had the power to buy an
electric lighting plant, and as an incident to its purchase to
5 Fellows V. Walker, 39 Fed. Rep. Fla. 220; 18 So. Eep. 067; 30 L. R.
651; State v. Toledo, 48 Ohio St. A. 540; Sclienck v. Olyphant, 181
112; 26 N. E. Rep. 1061; 11 L. R. Pa. St. 191; 37 Atl. Rep. 258.
A. 729; Mitchell v. Negaunee, 113 c Western Saving Fund Society v.
Mich. 359; 71 X. W. Rep. 646; 38 Philadelphia. 31 Pa. St. 175; 72
L. R. A. 157; Townsend Gas, etc.. Am. Dec. 730; Bailey v. Philadel-
Co. V. Port Townsend, 19 Wash. phia, 184 Pa. St. 594; 41 W. N. C.
407; 53 Pac. Rep. 551; Jackson- 529; 39 Atl. Rep. 494; 39 L. R. A,
ville. etc., Co. v. Jacksonville, 36 837.
560 OIL AND GAS.
issue bonds in order to secure money to pay for it. Nothing
is said in the opinion concerning tlie furnishing of commercial
light, hut it is apparent throughout that the municipality was
about to engage upon that enterprise.' In a subsequent case
the power of a municipality to furnish light to a private con-
sumer for remuneration was directly presented ; and its power
upheld under the statute quoted. The court c'onsidered that
" the power to light the streets and public places of a city is one
of its implied and inherent powers, as being necessary to prop'-
erly protect the lives and properties of its inhabitants, and as
a check on immorality." " So far as lighting the streets, al-
leys, and public places, of a municipal corporation is con-
cerned," said the court, '' we think that, independently of any
statutory power, the municipal authorities have inherent power
to provide for lighting them. If so, unless this discretion is
controlled by some express statutory restriction, they may, in
their discretion, provide that form of light which is best suited
to the wants and financial condition of the corporation." In
discussing the power to furnish light for commercial purposes,
the court added : " The corporation possessing, as it does,
the power to generate and distribute throughout its limits,
electricity for the lighting of the streets and other public places,
we can see no good reason why it may not also, at the same
time, furnish it to its inhabitants to light their residences and
jDlaces of business. To do so is, in our opinion, a legitimate
exercise of the police power for the preservation of property and
health." ** A statute of Iowa gave a municipality power " to
establish and maintain gas works or electric light plants, with
all the necessary poles, wires, burners, and other requisites of
said gas works or electric light plant." Under this statute it
was held that it had the power to furnish commercial light.
" It has been the uniform rule," said the court, " that a city,
in erecting gas works or water works, is not limited to furnish-
ing gas or water for use only upon the streets and other public
TRushville Gas Co. v. Rushville, L. R. A. 268; 30 Am. St. Rep. 214;
121 Ind. 200; 23 N. E. Rep. 72. Rockebrandt v. Madison, 9 Ind.
8 Crawfordsville v. Braden. 130 App. 227; 36 N. E. Rep. 444.
Ind. 149; 28 N. E. Rep. 849; 14
MUNICIPALITY SUPPLYING GAS. 561
places of the city, but may furnish the same for private use ;
and the statutes of Iowa now place electric light plants in the
same category." ® In Tennessee a statute authorized a munici-
pality to provide itself '' with water by water works, within
or beyond its boundaries, and to provide for the prevention and
extinguishment of fires, and organize and establish fire com-
panies." Acting under the authority thus conferred, a city
established water works, and in addition to making provision
for the extinguishment of fires, it furnished water to the citi-
zens. The action of the city was upheld by the Supreme Court
of that State. " Nothing," said the court, " should be of
greater concern to a municipal corporation than tlie preserva-
tion of the good health of the inhabitants ; nothing can be more
conducive to that end than a regular and sufficient supply of
wholesome water, which common observation teaches all men
can be furnished, in a po]mlous city, only through the instru-
mentalitv of a well equipped water works. Hence, for a city
to meet such a demand is to perform a public act and confer a
public blessing. It is not a strictly governmental or municipal
function, which every municipality is under legal obligation
to assume and perform, but it is very close akin to it, and should
always be recognized as within the scope of its authority, un-
less excluded by some positive law. . . . It is the doing of
an act for the public weal — a lending of corporate property
to a public use. ... It cannot be held that the city, in
doing so, is engaged in a private enterprise, or performing a
municipal function for a private end." " Under an authority
to contract and be contracted with, sue and be sued, and do all
things for the benefit of the city," a city may construct and
maintain a water and light plant or either one.^^ So under a
statute authorizing a city to issue bonds for municipal pur-
9 Thomson-Houston Electric Co. 464; 12 S. W. Rep. 924; Ellimvood
V. Newton, 42 Fed. Rep. 723. The v. Reedsburg. 91 Wis. 131; 64 N.
Indiana Supreme Court in the ease W. Rep. 885 ; Hummelstown v.
just cited considered that this stat- Brunner, 17 Pa. Co. Ct. Rep. 140; 5
ute did not confer any power not Pa. Dist. Rep. 8.
included among the implied powers nHeilbron v. Cuthbert, 96 Ga.
of a municipal corporation. 312; 23 S. E. 206.
10 Smith V. Nashville, 88 Tenn.
562 OIL AND GAS.
poses a city may issue them to build a plant to light its streets
and supply commercial light. ^^
f^513. Insufficiency of statute to authorize a municipality to
furnish commercial gas.
Courts have not always indulged in the liberal interpreta-
tion of statutes that has been exhibited in the previous section.
In South Carolina the Supreme Court said on a question of
this kind : " The city has the express power to own property,
and it also has the implied right to light the city.
Considering that some discretion as to the mode and manner
should be allowed the municipality, in carrying out the con-
ceded power to light the streets of the city, we hold that the
purchase of the plant was not ultra vires and void, so far as it
was designed to produce electricity suitable for and used in
lighting the streets and public buildings of the city." The
court, however, denied the power of the city to furnish light to
private citizens, on the ground that to do so would be entering
into private business outside of the scope of the city govern-
ment.^^ The same conclusion was reached in Massachusetts.
The statutes of the State — many in number — are reviewed
at length ; but it is held that none authorize a municipality
to embark in the enterprise of furnishing private citizens light
in connection with the light it furnishes for lighting its streets ;
indeed, it is said that a municipality is under no obligation
to light its streets.^* So in ISTew Jersey a municipality is not
authorized to erect and maintain an electric plant by a power to
pass ordinances for " lighting the streets " ; for another pro-
vision requires the council to establish lamp, police and water
districts in the city, and directs that the taxes for lighting
streets shall be assessed wholly on the property within these
.districts. This statute also authorizes the city to enter into a
i2..Tack8oiiville Electric LigTit Co. 1; 11 S. E. Rep. 434; 8 L. R. A.
V. .Licksonville. 36 Fla. 229; 18 So. 291.
Rep. 677 ; 30 L. R. A. .540. i* Spaulding v. Peabody. 153
i^Mauldin v. Grenville, 33 S. C. Mass. 129; 26 N. E. Rep. 421; 10
L. R. A. 397.
MUNICIPALITY SUPPLYIXG GAS. 563
contract for street lights with any party, for a term not ex-
ceeding five years, and to annually levy and collect a tax to
pay the expense thereof.^'
§514. Construction of municipal charters.
In determining whether or not a municipality may own a
gas plant and supply its inhabitants wdth gas for lighting, heat-
ing or power purposes, it must he borne in mind that a munici-
pality has only such powers as the Stala through its constitution
or legislative body has conferred upon it. '" They [municipali-
ties] have no inherent jurisdiction to make laws or adopt regu-
lations of government ; they are governments of enumerated
powers, acting by a delegated authority ; so that while the
State legislature may exercise such powers of government com-
ing within a proper designation of legislative power as are not
expressly or impliedly prohibited, the local authorities can ex-
ercise those only which are expressly or impliedly conferred,
and subject to such regulations or restrictions as are annexed
to the grant." ^° It is, therefore, a rule of interpretation of
the charters of a municipality, or of the laws under which it is
15 Howell V. Millville, 60 N. J. L. City Gas Co. v. Dwight, 29 N. J.
95; .36 Atl. Rep. 691. Eq. 242.
The objection that a city has no le Cooley Const. Lim. (6th ed.)
power to purchase water works can- 227 ; citing Stetson v. Kempton, 13
not be made by the owner of the Mass. 272; Willard v. Killingworth,
works in order to defeat his con- 8 Conn. 247 ; Abendroth v. Green-
tract with the city for the sale wich, 29 Conn. 356 ; Baldwin v.
thereof. Bristol v. Bristol, etc.. W. ISorth Branford. 32 Conn. 47; Web-
\V., 19 R. I. 413; 34 Atl. Rep. 359; ster v. Harwinton. 32 Conn. 131;
32 L. R. A. 740. Douglass v. Placerville, 18 Cal. 644;
In Xorth Carolina it was held Lackland v. Xorth. Mo. R. R. Co.,
that furnishing water to the in- 31 Mo. 180; Mays v. Cincinnati, 1
habitants of a city was not in itself Ohio St. 268; Frost v. Belmont, 6
a necessary city expense in the sense Allen 152; Hess v. Pegg, 7 Nev. 23;
that a city must own and operate Ould v. Richmond, 23 Gratt. 464 :
a system of water works. Char- 14 Am. Rep. 139; Youngblood v.
lotte V. Shepard. 120 N. C. 411; 27 Sexton. 32 Mich. 406; 20 Am. Rep.
S. E. Rep. 109. 654; Detroit Citizens' St. Ry. v.
In New .Jersey it is said that Detroit Ry.. 171 U. S. 48; 18 Sup.
making and selling gas is not a Ct. Rep. 732; affirming 110 Mich,
prerogative of government. Jersey 384; 68 N. W. Rep. 304.
564 OIL AND GAS.
incorporated, that power not expressly given will not be pre-
sumed, unless necessarily or fairly implied in or incident to
other powers expressly given — not simply convenient, but in-
dispensable to them."
§515. Municipality's profit.
If the avowed purpose of the object of a municipality in fur-
nishing gas is merely a business venture, with a view to make
a profit by the undertaking, and not to furnish gas to its inhab-
itants as cheaply as it can reasonably be done without loss and
to obtain lights for its streets, then it may Avell be doubted if
it can engage in such business ; for to do so would be to author-
ize a municipality to engage in purely a commercial adventure.
But just where the line shall be drawn in fixing the rates it may
charge is difficult to determine. Such a question is an illus-
tration of a theoretical rather than a practical problem. Pn;-
dence should dictate t<?'a municipality to fix the rate not only
sufficiently high to pay all running expenses, but high enough
to furnish a fund for repairing the machinery and other parts
of the plant, and, indeed, to create a fund to replace them
when they are ultimately worn out, without resorting to the
power of taxation to obtain new machinery. To permit the
municipality to fix the rate so high that it will not only fur-
nish these several sums, but also make at least a return of a
sum sufficient to pay the usual rate of interest on the invest-
ment, would be to allow it to engage in a commercial adventure,
as clearly so as to allow it to make a greater amount tenned
" profit." " Of course, if a plant is self-sustaining, and the
municipality thereby gets its street and own light free of charge
(as is usually the case), then an inequality necessarily arises
among its inhabitants ; for those who use the gas necessarily
pay a rate so high that it enables the mimicipality to supply
1" Los Angeles V. Los Angeles City Rep. 304; Park Com'rs. v. Common
Wcater Co.. 177 U. S. 558; ?>etroit Council, 28 Mich. 228, 239.
Citizens' St. Ry. v. Detroit Ry., 171 is See Hamilton v. Hamilton, etc.,
U. S. 48; 18 Sup. Ct. Rep. 732; af- Gaslight Co., 11 Ohio Dec. 513;
firming 110 Mich. 384; 68 N. W. Dixon v. Entriken. 6 Pa. Dist. Rep.
447; 19 Pa. Co. Ct. Rep. 414.
MUNICIPALITY SUPPLYING GAS. 565
its streets and its public buildings with light free of cost to
itself, while those of its inhabitants who do not use the gas con-
tribute nothing towards the lighting of such streets and public
buildings. The inequality may not be very great, and yet it
will exist. The author does not recall any instance where this
fact of inequality has been urged as a reason why statutes
authorizing a municipality to furnish gas, light or water to
private consumers are unconstitutional, or such an enterprise
unauthorized.^^
§516. Competition with, private plant.
As a general rule, a municipality cannot deprive itself, in
making a gTant to a private company, of the right to furnish
light or water, nor bind itself not to erect a plant of its own
and not. to compete wdth such company in the furnishing of
light and water, where its charter authorizes it to put in a light
or water plant. -° The city may occupy with its mains the same
streets the private company is occupying."^ If a municipality
has the authority to take water works under the power of emi-
nent domain, such power is not taken away by a contract with
a private company for the supply of water during a term of
years having in it a provision re([uiriiig the payment of hydrant
rentals by such municipality. --
§517. Election to authorize purchase or erection of plant.
Recent statutes frequently limit the power of a municipality
to purchase or erect a lighting plant, by first requiring the
question to be submitted to a vote of the inhabitants of the
19 Water or gas rates are not Co.. 172 U. S. 1 ; 19 Sup. Ct. Hep.
taxes which may be collected by the 77 ; affirming 60 Fed. Rep. 957.
tax collector. Dixon v. Entriken. 21 Hughes v. Momence, 103 111.
6 Pa. Dist. Rep. 447; 19 Pa. Co. 535; 45 N. E. Rep. 300.
Ct. Rep. 414. -- Long Island Water Supply Co.
20 North Springs Water Co. v. v. Brooklyn. IGO V. S. G85; affirm-
Tacoma, 21 Wash. 517; 58 Pac. ing 143 N. Y. 596; 38 N. E. Rep.
Rep. 773; 47 L. R. A. 214. See 983; 17 Sup. Ct. Rep. 718; 29 Cai-
Walla Walla v. Walla Walla Water cago L. N. 313. See North Springs
Water Co. v. Tacoma, supra.
566 OIL AND GAS.
municipality. Notice of the proposition is required to be given.
Sometimes these propositions are voted upon at a general elec-
tion, in connection with the election of officers, and at other
times a special election is held for the sole purpose of taking
the sense of the electors upon the propositions submitted to
them. Thus a statute of Massachusetts required two affirma-
tive votes, taken at a meeting that is j^culiar to the town or-
ganizations of that State, before the town could erect a phuit ;
and if the vote should at both meetings be in the affirmative,
the town could then erect a plant. It also provided that the
town might purchase any existing plant in the town, after such
votes had been taken, if the owner of it consented to sell it and
they could agTee on terms ; but if the city declined to purchase,
then the owner could apply to the court for the appointment of
commissioners to fix the value of his plant, and the town was
then compelled to take it at the figures thus fixed. Under this
statute it was decided thut a third vote to buy an existing plant
was not necessary ; that the fact of the poles of the plant not
being legally in the streets would not defeat the petition of the
owner, that fact going only to reduce the value of the plant ;
and that that portion of the statute requiring the town to pur-
chase the plant was constitutional, it being optional with the
owner to sell.'^ Slight variations among the separate instru-
ments calling for an election, the notice of election and the like
do not invalidate the proceedings. But a proceeding for the
building of a plant is invalidated by the fact that the resolution
adopted stated that bonds would be issued '' for the erection
and purchase," the mayor's proclamation that it was " for the
erection," and the ordinance that it was '' for the erection or
construction " of a plant. Such a double purpose is stated as to
invalidate the proceedings."^ A city may issue bonds for a
water plant alone under a charter provision by separate pro-
visions to be voted on, for the issuing of bonds for building one
23 Citizens' Gaslight Co. v. Wake- 57 Ohio St. 374; 49 N. E. Rep. 335,
field, 161 Mass. 432; 37 N. E. Rep. reversing 14 Ohio C. C. 219; 7 Ohio
444. See Baltimore, etc., Co. v. Dec. 527; 38 Wkly. L. Bull. 200; 39
People (111.), 66 N. E. Rep. 246. Wkly. L. Bull. 139.
24 Elyria Gas, etc., Co. v. Elyria,
MUNICIPALITY SUPPLYING GAS. 56"7
kind of a plant without building the other also, although they
are called " water and light bonds " in the charter.-^' Of course
the power to issue bonds or borrow money to build or purchase
a plant is subject to constitutional limitations concerning in-
debtedness."*' Where a statute requires a vote to be first taken
to determine whether a lighting system shall be acciuircd by the
municipality, the municipal authorities cannot waive a com-
pliance with the provisions of the statute ; for the sanction of
the vote is a condition precedent to the right of the municipality
to institute condemnatory proceedings, when necessary, to ac-
quire property for the plant. "^ So power whereby a lighting-
undertaking may be authorized by a provisional order of a mu-
nicipality to purchase such undertaking compulsorily on issu-
ing corporation stock to a certain amount is in abeyance so long
as the municipality has no power to issue irredeemable stock
because of a subsequent provisional order taking away the
power previously held, but not exercised by the municipality,
although the statutes confirming the two orders were approved
on the same day.^^
§518. Municipality must be sole proprietor of plant. — Taking
stock.
Whether or not a municipality must be the sole owner of a
gas plant, or wdiether it may embark in the enterprise in con-
nection with private funds, depends upon the State constitu-
tion and statutes of the State. In some States their consti-
tutions forbid a municipality to become a stockholder in any
stock company, corporation, or association, or even to raise
money for or loan its credit to or in aid of any such company,
corporation, or association. Such a provision is sufficient to
prohibit it from becoming a part owner of a gas plant, the re-
maining portion being held by private individuals. Such a
provision is broad enough to forbid additions to the works of
25 Janeway v. Duhith. 65 Minn. -'In re LeRoy, 2.3 N. Y. ]Misc.
292; 68 N. W. Eep. 24. 53; 50 X. Y. Supp. 611.
26 Spilman v. Parkersburg, 35 W. 28 Sheffield v. Sheffield, etc.. Co.
Va. 605; 14 S. E. Rep. 279. [1898]. 1 Ch. 203; 77 Law T. Rep
616; 67 L. J. Ch. (N. S.) 113.
568
OIL AND GAS.
the municipality made by private capital, with a view of leas-
ing such additions to it."" But if no provision of the constitu-
tion prohibit the investment, a statute may provide that a
municipality may take stock in a company organized to furnish
light to a city and its inhabitants.^" A statute forbidding a
municipality to make any subscription to the capital stock of
an incorporated company or loan its credit for the benefit of
such company, is not violated by an agreement in water con-
tract to pay the hydrant rentals to the bondholders of the com-
pany supplying the water. ^^
§519. Right to purchase plant of gas company.
Statutes frequently authorize a municipality to bind itself to
purchase the plant of a gas company at the end of a term of
years during which it supplies it with light ; ^' and without such
an express statute there is nothing objectionable to such a con-
tract. It simply authoi^irzes the purchase of a plant already in
existence, instead of the municipality undertaking to build a
nlant of its own.^^
29 Ampt V. Cincinnati, 56 Ohio
St. 47; 37 Wkly. L. Bull. IGl; 46 N.
E. Rep. 69; 35 L. R. A. 737; modi-
fying 12 Ohio C. C. 119; 1 Ohio C.
D. 356.
30 See Marlborough Gaslight Co.
V. Neal, 166 Mass. 217; 44 N. E.
Rep. 139; Memphis v. Memphis
Gayoso Gas Co., 9 Heisk. 531.
31 State V. Great Falls, 19 Mont.
518; 49 Pac. Rep. 15.
A city may be authorized to take
l)onds in a gas company. New Or-
leans V. Clark, 95 U. S. 644. In
England, it may issue stock to es-
tablish a lighting plant. Sheffield
'•. Sheffield Electric Light Co.
riS98]. 1 Ch. 203; 77 L. T. Rep.
616: 67 L. J. Ch. (N. S.) 113.^
32>Jeosho City Water Co. v. Ne-
osho, 136 Mo. 498; 38 S. W. Rep.
89.
33 See Wheeling Gas Co. v. Wheel-
ing, 8 W. Va. 320.
If the price to be paid by the city
is to be fixed by arbitrators, part
chosen by the city and part by the
gas company, and the former choose
its arbitrators and notify the com-
pany; and the gas company refuse
to select any, the city's remedy is to
apply for a writ of mandamus to
compel it to select its arbitrators,
and not a suit in equity to enforce
a sale at the price fi.Ked by the
city's arbitrators. St. Louis v. St.
Louis Gaslight Co., 70 Mo. 69.
Vvhere a municipality had the
power to purchase certain gas
works, and certain moneys were to
be raised for this and other pur-
poses, an injunction to restrain the
municipality from opposing a bill
promoted by the gas company to ex-
tend its works was refused, on the
ground that such extension might
prevent the municipality from pur-
chasing the works, by e.xceeding in
MUNICIPALITY SUPPLYING GAS. 569
§520. Trustees for gas works.
Occasionally trustees are appointed to manage gas works
where they are conducted by a municipality. This was the case
with the Philadelphia gas plant. That plant was owned by
private individuals, and was taken possession of by that city.
The stock was replaced by certificates issued by the city to the
stockholders according to their several holdings, and trustees
were selected and given full control of the works and their man-
agement ; and they were to create a fund to pay off these cer-
tificates and the indebtedness. After these trustees had taken
charge, an ordinance was passed by the common council ap-
pointing a chief engineer, who was by it put at the head of the
gas department of the city ; and all moneys collected for gas
furnished was to be paid to such officers as he should select.
Creditors objected to the engineer taking possession, and to his
interfering with the trustees' control of the gas works ; and the
court upheld them in their objection, and issued an order re-
straining them. They were entitled, so the court held, to
an injunction on the ground that there was such a contract be-
tween the city and the creditors as a court of equity would
protect ; and that when it entered upon such an enterprise it
was acting in its capacity as a private corporation, and not in
its legislative capacity.^* These trustees are generally subject
to the control of the municipality, and have only such powers
as its common council or legislative body may bestow upon
them. An instance of their limited power is found in an
Ohio case. In that State a statute provided for a board of
trustees to manage the municipality's gas plant; and also em-
powered them to " prescribe by bylaws the price of gas and
coke, under such rules and regulations as by ordinance the
council may prescribe." The board in the absence of such an
value the sum allotted to the mu- Am. Dec. 730. See Bailey v. Phila-
nieipality by its act for expenditure delphia, 184 Pa. St. 594 ; 41 W. N.
for this and other purposes. Attor- C. 5-^9 ; 39 Atl. Rep. 494 ; 39 L. R.
ney General v. Mayor of St. He- A. 837 (affirming 6 Pa. Dist. Rep.
lens, W. N. (1870) 150. 727; 20 Pa. Co. Ct. 173, where a
34 Western Saving Fund Society lease of these works was upheld).
V. Philadelphia, 31 Pa. St. 175; 72
570 OIL AND GAS.
ordiuance undertook to fix the price of gas, over the objection
of the gas company ; and their action was held void.^^ In this
State it is also held that so long as an ordinance is in force
creating a board of officers to manage the city's gas plant, the
council cannot take upon itself the management, through its em-
ployees, of its electric lighting plant.^® The statute referred to
in the foregoing sentence authorized the common council to
create and appoint a board of trustees, when it had determined
to build a lighting plant, to construct the works, and to manage
them when they should have been built. The board could not
only construct the works, but extend gas pipes, manufacture
and sell gas and coke, collect gas bills and other moneys due
for gas, coke or other material sold by it, having power to
purchase material, employ laborers, appoint officers, purchase
or lease the necessary i"eal estate and erect buildings upon it.
All luoney collected for gas works purposes had to be deposited
weekly, by its collectors*with the treasurer of the municipality,
and be kept as a separate and distinct fund, subject to the
order of the board. This money, as Avell as that levied by
the municipality for the gas works, was to be disbursed by the
board of trustees. It was held that the board of trustees did
not have power, under this statute, to charge the nuinicipality
wath a general liability on account of machinery or appliances
purchased by them for the works under their control ; and that
they had no authority to control the funds thus placed in their
hands independent of the council, because of another statute
which provided that " no contract, agreement or other obliga-
tions, involving the expenditure of money shall be entered into,
35 Foster v. Findlay, 5 Ohio Cir. let it to the lowest bidder as the
Ct. Rep. 455; 3 Ohio Cir. Dec. 224. city did when it purchased sup-
vSee Bellaire Goblet Co. v. Findlay, plies, for the reason that the gas
5 Ohio Cir. Ct. 418; 3 Ohio Cir. works were not a department of the
Dec. 205. city government within the provi-
so Shaw V. Jones. 6 Ohio^Dcc. sion of the Act of May 13, 1856,
453 ; 4 Ohio N. P. 372. requiring the city to advertise for
In a case involving the Philadel- bids and let out the supply of ma-
phia gas trustees' power, it was terials to the lowest bidder. Hack-
held that they were not required er v. Philadelphia, 6 Phila. 94.
to advertise for bids for coal and
MUNICIPALITY SUPPLYING GAS. 571
nor shall any ordinance, resolution or order for the appropria-
tion or expenditure of money be passed by the city council or
by any board or officers of a municipal corporation " unless the
city auditor or clerk, '' shall first certify that money required
for the contract . . . or to pay the appropriation or ex-
penditure, is in the treasury to the credit of the fund from
Avhich it is to be drawn, and not appropriated for any other
purpose.'' ^" A statute of this same State provides that no
municipal officer until one year after his office has expired,
shall be either directly or indirectly interested in the work of
his city. Under this statute one of the gas trustees cannot be
employed by the others until the end of such year, to supervise
the property of the city in the territory where the gas is ob-
tained and where the leased lands, of the city are located, or
manage its works.^^
§521. Sale of municipal plant.
A municipality usually has the power to sell its lighting
plant ; but this power is usually given under the statutes au-
thorizing it to dispose of its property generally. Thus a statute
empowered a municipality " to acquire by purchase or other-
wise and hold real estate, or any interest therein, and other
property for the use of the corporation, and to sell or lease the
same," and it was held that under this clause it might sell'
its gas plant, the court saying that the statute " clearly gives
the city the ]X)wer to make such sale whenever, in the judgment
of the officers of the city, it becomes for the best interests of
such city." ^® In a sale of its plant, as a part of the considera-
tion, the municipality may bind itself to pay such a greater sum
per light as will be equal to the taxes to be paid by the company,
even in the event that such municipality had no right to ex-
empt the purchasing company from taxation. *° A provision
37 Kerr v. Bellefontaine, 59 Ohio lin Bros. Co. v. Toledo. 20 Ohio C.
St. 446; 52 N. E. Rep. 1024. C. 60.3; 8 Ohio X. P. 62.
38 Findlay v. Parker. 17 Ohio C. 4o Frankfort v. Capitol City, etc.,
C. 294; 9 Ohio Cir. Dec. 710. Co.. 16 Ky. L. Rep. 780; 29 S. W.
39 Thompson v. Nemeyer, 59 Ohio Rep. 855.
St. 486; 52 N. E. Rep. 1024; Ker-
572 OIL AlMD GAS.
in the contract of sale to the effect that the company shall ful-
fill its contract to furnish gas to the extent that such contracts
can be fulfilled, the purchaser must make all necessary con-
nections for the furnishing of gas which were customarily
niade.'*^
§522. Municipality may lease its own gas works.
A city owning its gas works ma}' sell, lease, or altogether
abandon them ; and the lease is not an interference with the
executive functions of its board of public works which has
their direction, control and administration. In the execution
of such a lease there is no delegation of any municipal power,
legislative or otherwise, which involves a municipal duty. In
the ownership and control of gas works a city acts in a business
capacity only ; and the inability of its common council to bind
the discretion of its successors for a term of years, in respect
to municipal or governmental function, is not involved in the
granting of the lease. In such a lease the municipality may
bind itself that it will not in any way interfere with, restrict,
limit or imi^eril the exclusive right vested in the lessee by the
lease where the municipality had the sole right and was the
only company supplying gas in the municipality ; and such a
lease does not create a monopoly against public policy where
the franchise of the lessee is derived from the State, and not
from the municipality, and it merely makes the privilege ex-
clusive so far as the municipality is concerned.'*'^ The lease
by the council of the city's gas works for a definite period —
41 Pittsburg Carbon Co. v. Phila- an applicant for a lease than upon
delphia, 130 Pa. St. 438; 18 Atl. the amount of his bid ; and that the
Rep. 732. holders of the gas lease had no
42 Bailey v. Philadelphia, 184 Pa. standing to enjoin the lease of the
St. 594; 41 W. N. C. 529; 39 Atl. gas works; as the promise of the
Rep. 494; 39 L. R. A. 837; 63 Am. city to apply a certain per cent of
St. Rep. 812; affirming 6 Pa. Dist. the receipts from the works to the
Rep. 727; 20 Pa. Co. Ct. 173. In sinking fund created for the pay-
the lower court it was also held that ment of the bonds was only a prom-
the discretion given to a city coun- ise, and of no greater sanctity than
oil to lease the city's gas works in- the promise to pay the bonds at
vested them with power to lay more maturity.
stress upon the responsibility of
MU:^ICIPALITY SUPPI.YING GAS. 573
as twenty years — does not necessarily constitnte a suspension
of the legislative power of succeeding councils, and is not for
that reason void,*^ The city may bind itself not to again en-
gage in the manufacture and sale of gas so long as the lease
continues.**
§523. Rules and regulations.
When a municipality engages in supplying gas to private
consumers, it may adopt rules and regulations for supplying
such gas, the same as a private company ; and the legislature
may authorize the board of trustees or commissioners to do
so ; *^ and no doubt the common council may also adopt,*** or
authorize such board to adopt all necessary and reasonable rules
for that purpose. For non-payment of bills, or for abuse in its
use or violation of proper rules the supply may be cut ofF.*^
It may provide by ordinance that where the gas is shut off for
failure to pay gas bills, it shall not be turned on again until
such bills are paid with the penalty that may be due and all
expenses of turning it off.** A municipality can no more dis-
criminate between consumers than a private company.*"
43 Higgins V. San Diego, 118 Cal. 46 Altoona v. Shellenberger, 6 Pa.
524; 45 Pac. Rep. 824; 50 Pac. Rep. Dis. Rep. 544.
670; Newport v. Newport Light Co., 4T Brass v. Rathbone, supra. Al-
84 Ky. 166. toona v. Shellenberger, supra.
44 Bailey v. Philadelphia, supra. 48 Altoona v. Shellenberger, supra.
45 Brass v. Rathbone, 153 N. Y. 49 Rierker v. Lancaster, 14 Lane.
435; 47 N. E. Rep. 905; affirming L. Rev. 393.
40 N. Y. Supp. 466; 8 App. Div. 78.
CHAPTER XXV.
THE GAS COMPANY AND CONSUMER.
§524. No requirement at common law.
§525. Company must supply gas.
§526. No discriminations.
§527. Failure of supply of natural gas. — Discrimination.
§528. Supply only to abutting property owners.
§529. Extension of mains or pipes.
§530. Inspection of premises.
§531. Mandamus to compel supply.
§532. Mandamus to compel furnishing of gas to a city.
§533. Penalties for failure to supply gas — Damages.
§534. Damages for failur^to supply gas. — Sickness.
§535. Limiting liability for failure to supply gas.
§536. Application for gas.
§537. Rules and regulations.
§538. Subscribing to rules and regulations.
§539. Price to be charged.
§540. Payment in advance.
§541. Deposits.
§542. Discrimination in use. — Rates.
§543. Classification of customers. — Rates.
§544. Recovering back overcharges.
§545. Collection of rents. — Action.
§546. Collection of rents by distress.
§547. Shutting off gas for failure to pay.
§548. Injunction to prevent cutting off gas supply. — Rates.
§549. Consumer's right to discontinue use of gas.
§550. Ownership of supply pipe.
§524. No requirement at common law.
At common law tliere was no obligation upon a gas company
'to supply either the mmiicipality or an individual with gas;
and this is the result of ^le early decisions in this country and
England. The right to have gas delivered by a gas company
was placed purely upon contract; and aside from a contract it
was considered that no obligation rested upon the company to
574
GAS COMPANY AND CONSUMER. 575
furnish it. A gas company was regarded as a purely private
concern, being neither a public or quasi-public corporation. It
was regarded the same as if it were an individual — a person
— who owned a gas plant and manufactured gas.^ And the
fact that the company's pipes occupied the street in the front
of an abutting land owner's property did not impose upon it a
duty to supply such land owner with gas. " Xo duty is im-
posed upon them," said the Supreme Court of Massachusetts,
'' nor are they charged Avith any public trust. They are au-
thorized to make and distribute gas for their own profit and
gain only. They are not bound to sell and dis]X)se of it to any
one, either for public or private use or consumption. It is
entirely at their option whether they will exercise their cor-
porate rights and privileges at all ; and if they undertake to
manufacture and dispose of gas, the extent to which they shall
carry on the business is left to their own election. Xor is any
power conferred on them to take private property, not prev-
iously appropriated to a public use, for the purpose of exer-
cising and enjoying their franchise. The only right or privi-
lege given to them is to dig up public streets and ways for the
purpose of laying down their mains or pipes." " So in I^^ew
Jersey " power and authority to manufacture, make and sell gas
for the purpose of lighting the streets, buildings and manu-
factories and other places situate in " a certain town was held
to be merely permission ; and the company could refuse to
supply a resident of the town, although it at the time was
supplying some of the inhabitants of such town.^ And even
though a company has begun to supply a customer gas, who
has his premises all fitted up with gas pipes and fixtures to
receive the gas, it may discontinue the supply of gas at any
time unless it is under a contract to supply it,'* even though
he, by such discontinuance, will suffer more than nominal dam-
iSee Jersey City Gas Co. v. 27 N. J. L. 245; 72 Am. Dec. 360.
Dwight, 29 N. J. Eq. 242. See now Olmstead v. Morris Aqiie-
- Commonwealth v. Lowell Gas- duct, 47 X. J. L. 311.
xight Co., 12 Allen 75. 4 MeCune v. Norwich City Gas
3 Patterson Gaslight Co. v. Brady, Co., 30 Conn. 521; 79 Am. Dec. 278.
576 OIL AND GAS.
ages.^ Nov does the fact of quarterly payments or the hiring
of a meter by the year, or of the company being the only one
in the neighborhood furnishing gas, afford any ground for im-
plying a contract to furnish gas ; ^ nor even where the company
holds a deposit to secure payment for gas used.''^
§525. Company must supply gas.
But the better line of authority, and the more recent cases,
aside from any statute, ordinance or contract expressly require
ing it, hold that gas companies must supply those whose prop-
erty abutts upon their lines and that the duty rises from the
character of such institutions, they being quasi-public corpora-
tions and occupying the streets and public highways.^ " A
natural gas company," said the Supreme Court of Indiana,
" occupying the streets of a town or city with its mains, owes
it as a duty to furnish those who own or occupy the house
abutting on such streef, where such owners or occupiers make
the necessary arrangements to receive it and comply with the
reasonable regulations of such company, such gas as they may
require, and that where it refuses or neglects to perform such
duty, it may be compelled to do so by writ of mandamus." ^
It is especially true such companies are under a duty to supply
persons whose property abutts on their lines, where they have an
exclusive grant or monopoly of the supplying of gas in that
5 Pudsey Coal Gas Co. v. Brad- o Portland Natural Gas Co. v.
ford, L. R. 15 Eq. 167; 21 W. R. State, 135 Ind. 54; 34 N. E. Rep.
2^6; 42 L. J. Ch. 293; 22 Gas J. 818; 21 L. R. A. 639; Spratt v.
54; Commonwealth v. Wilkes- South Metropolitan Gas Co., 7 Gas
Barre Gas Co., 2 Kulp (Pa.) 499. J. 663; Baltimore Gaslight Co. v.
6 Hoddesdon Gas and Coke Co. v. Colliday, 25 Md. 1 ; Indiana, etc.,
Haselwood, 6 C. B. (N. S.) 239; 5 Gas Co. v. State, 158 Ind. 516; 63
Jur. (N. S.) 1013; 28 L. J. C. P. N. E. Rep. 220; 57 L. R. A. 761;
268; 7 W. R. 415; 8 Gas J. 261. Jordeson v. Sutton, etc., Co., 67
7Houlgate v. Surrey Consumers' L. J. Ch. 666; [1898] 2 Ch. 614; 79
'Gas Co., 8 Gas J. 261. L. T. 478; 47 W. R. 222; 63 J. P.
8 Commercial Bank v. London Gas 137; affirmed 68 L. J. 457; [1899]
Co., 20 Up. Can. Q. B. 233; Wil- 2 Ch. 217; 80 L. T. 815; 63 J. P.
liams V. Mutual Gas Co., 52 Mich. 692; People v. Chicago Gas Trust
499; 50 Am. Rep. 266; 18 N. W. Co., 130 111. 268; 22 K E, Rep. 798;
Rep. 236; 4 Am. and Eng. Corp. 8 L. R. A. 497.
Cas. 66.
GAS COMPANY a:XD COIS'SUMER.
i77
mimicipalitv; ^^ or the right of eminent domain to secure a
right of way for their pipe lines/^ In many instances the duty
to furnish the inhabitants of a municipality with gas is en-
forced bv statute or bv ordinance/'
10 New Orleans Gas Co. v. Louis-
iana Light Co., 115 U. S. 650; (5
Sup. Ct. Rep. 252; People v. Man-
hattan (jras Co., 45 Barb. 136; 1
Abb. Pr. (N. S.) 404; 30 How Pr.
87 ; Shepherd v. Milwaukee Gaslight
Co.. 11 Wis. 234; 15 Wis. 318; 82
Am. Dec. 679; Wis, 539; Owens-
boro Gaslight Co. v. Hildebrand, 19
Ky. L. Rep. 983; 42 S. W. Rep.
351; Brunswick Gaslight Co. v. U.
S., etc., Co., 85 Me. 532; 27 Atl.
Rep. 525; 35 Am. St. Rep. 385;
43 Am. and Eng. Corp. Cas. 459;
St. Louis V. St. Louis Gaslight Co.,
70 Mo. 69; Shephard v. Milwaukee
Gaslight Co., 6 Wis. 539; 70 Am.
Dec. 479; Indiana, etc., Co. v. State,
158 Ind. 516; 63 N. E. Rep. 220; 57
L. R. A. 761.
11 Coy V. Indianapolis Gas Co.,
146 Ind. 655; 46 N. E. Rep. 17;
36 L. R. A. 535; 8 Amer. and Eng.
Corp. Cas. (X. S.) 771; Gibbs v.
Consolidated Gas Co., 130 U. S.
396; 9 Sup. Ct. Rep. 953; State v.
Consumers' Gas Trust Co., 157 Ind.
345; 61 N. E. Rep. 674; 55 L. R.
A. 245; Hangen v. Albina, etc., Co.,
21 Ore. 411; 28 Pac. Rep. 244; 14
L. R. A. 424; Crumley v. Watauga
Water Co., 99 Tenn. 420; 41 S. W.
Rep. 1058; American, etc.. Co. v.
State, 46 Neb. 194; 64 N. W. Rep.
711 ; 30 L. R. A. 447; State v. Butte
City Water Co., 18 Mont. 199; 44
Pac. Rep. 966 ; 32 L. R. A. 697 ; 56
Am. St. Rep. 574; 4 Am. and Eng.
Corp. Cas. (N. S.) 238; Hoehle v.
Allegheny Heating Co., 5 Pa. Super.
Ct. 21; New York Central, etc.. R.
R. V. Metropolitan Gaslight Co..
5 Hun 201 ; Morey v. Metropolitan
Gaslight Co., 38 N. Y. Super. Ct.
It is the duty of a gas
185 ; Schmeer v. Gaslight Co., 147
N. Y. 529; 42 N. E. Rep. 202; 30
L. R. A. 653; 70 N. Y. St. Rep. 92;
Woodburn v. Auburn, 87 Me. 287 ;
32 Atl. Rep. 906; Mackin v. Port-
land Gas Co.. 38 Ore. 120; 61 Pac.
Rep. 134 (rehearing denied, 62 Pac.
Rep. 20) ; 49 L. R. A. 596; Watau-
ga Water Co. v. Wolfe, 99 Tenn.
429; 41 S. W. Rep. 1060; Graves v.
Key City Gas Co., 93 la. 470; 61
N. W. Rep. 937; Griffin v. Golds-
boro Water Co., 122 N. C. 206; 30
S. E. Rep. 319; 41 L. R. A. 240;
Crescent Steel Co. v. Equitable Gas
Co., 23 Pittsb. Leg. J. (N. S.) 316;
Bath Gaslight Co. v. Claffey, 74
Hun 638; 26 N. Y. Supp. 287; No-
blesville v. Noble.svillc Gas, etc., Co.,
157 Ind. 162; 60 N. E. Rep. 1032;
People's Gaslight and Coke Co. v.
Hale. 94 III. App. 406; Cincinnati,
etc., Co. V. Bowling Green, 57 Ohio
St. 336; 49 N. E. Rep. 121; People
V. N. York, etc., Co.. 56 N. Y. Supp.
364; New Orleans, etc., Co. v.
Paulding. 12 Rob. (La.) 378; Jen-
kins V. Columbia, etc., Co., 13 Wash.
502; 43 Pac. Rep. 328; Bailey v.
Fayette Gas Fuel Co., 193 Pa. St.
175; 44 Atl. Rep. 251; 44 W. N. C.
505.
12 Jones V. Rochester Gas. etc.,
Co., 7 N. Y. App. Div. 465 ; 39 N. Y.
Supp. 1105; Ferguson v. Metropoli-
tan, etc., Co., 37 How Pr. 189; Mo-
rey V. Metropolitan Gaslight Co.,
38 N. Y. Supr. 185; Pearson v.
Phoenix Gas Co., 12 Gas J. 09;
Commercial Gas Co. v. Scott. L. R.
10 Q. B. 400; 25 Gas J. 889; Smith
V. Capitol Gas Co., 132 Cal. 209;
64 Pac. Rep. 258.
178
OIL AND GAS.
company to furnish gas to a customer even though he is fur-
nished gas by another company. It is the customer's privilege
to quit the other company if he sees fit; or to take from both
of them.^^ Even in England where formerly it Avas held that
no obligation rested upon a company to furnish gas ; yet if
the company had entered into a contract to furnish it, and
failed to do so, it was liable in damages.^*
§526. No discriminations.
Not only is it the duty of a gas company to furnish gas,
but it is its duty to treat all alike. It cannot discriminate be-
tween customers either in prices or in imposing upon them
regulations not applicable to all of their customers under the
same circumstances. It must furnish gas without preference
or partiality, whether that duty be imposed by statute or not.^^
This statement, however, must be taken with the qualification
that the customer has ol* is willing to comply with all reasonable
13 Portland Natural Gas Co. v.
State, 135 Ind. 54; 35 N. E. Rep.
818; 21 L. R. A. 639.
14 Whitehouse v. Liverpool, etc.,
Co., 5 C. B. 798; 5 M. Gr. and S.
798.
In Commonwealth v. Wilkes-
Barre Gas Co., 2 Kulp 499, it is
said that the duty of a gas com-
pany to supply all persons of a
municipality with gas cannot be in-
ferred like the duty of a common
carrier, from the fact that it is en-
gaged in business ; the duty arises
only from the charter.
The assignee of a gas company's
right to furnish gas is bound by
the original grant of the privilege
of supplying the municipality with
gas. Freeport School District v.
Enterprise Natural Gas Co., 18 Pa.
Super. Ct. 73.
A company cannot escape its duty
to supply gas by assigning its fran-
chise. Bath Gaslight Co. v. Claf-
ey, 74 Hun 638; 26 N. Y. Supp.
287.
15 Bailey v. Fayette Gas Fuel Co.,
193 Pa. St. 175; 44 Atl. Rep. 251;
44 W. N. C. 505; Coy v. Indianap-
olis Gas Co., 146 Ind. 655; 46 N.
E. Rep. 17; 36 L. R. A. 535; 8
Am. and Eng. Corp. Cas. (N. S.)
771; Louisville Gas Co. v. Dulaney,
100 Ky. 405; 38 S. W. Rep. 703; 36
L. R. A. 125; 6 Am. and Eng. Corp.
Cas. (N. S.) 241; Jones v. Roches-
ter Gas, etc., Co., 7 N. Y. App. Div.
465; .39 N. Y. Supp. 1105; New Or-
leans Gaslight, etc., Co. v. Pauld-
ing, 12 Rob. (La.) 378; Portland
Natural Gas Co. v. State, 135 Ind.
54; 35 N. E. Rep. 818; 21 L. R. A.
639; Harbison v. Knoxville ^Yate^
Co. (Tenn.), 53 S. W. Rep. 993;
Cincinnati, etc., Co. v. Bowlnig
Green, 57 Ohio St. 336; 49 N. E.
Pep. 121; People's Gaslight and
Coke Co. V. Hale, 94 111. App. 40(1.
GAS COMPAlJsY A?irD COXSUMER. 579
rules and regulations of the company, such as it has a right
to adopt and im}X)se upon its customers.^*^ A refusal of the
customer to sign an agi'eement to abide by unreasonable rules
will not deprive him of the right to a supply of gas/' In-
stances of discrimination v\ill appear in succeeding sections;
but a few may be added here. Thus the company cannot re-
quire a deposit of money by a particular customer to secure
the payment of its charge, when it does not require such de-
posits of all its customers. ^^ "\Miere a water company laid its
pipes in the street to supply certain persons with water who pay
for the pipe under an agi'eement that if any one else was
furnished water from the company should reimburse them for
the amount they had paid, it was held that the company, not-
withstanding this agreement, must supply all those whose prop-
erty abutted upon the line, even though the}' had not paid any-
thing on the pipe.^^ Customers who are stockliolders in the
company must be treated as other customers, and cannot be
given a preferential rate, although those favored constitute a
majority of the owners of the company's stock."" It is no
excuse that the amount the company liy statute is authorized to
charge, if it is charging other customers less than the amount
of the charge to the one discriminated against."^ So it is an
unjust discrimination to adopt a rule that it would furnish
no gas to a tenant, and would only deal with the owner of the
house occupied by the tenant or with his agent."' But it is not
16 Williams v. Mutual Gas Co., lo Hangen v. Albina Light and
52 Mich. 499; 18 N. W. Rep. 236; Water Co., 21 Ore. 411; 28 Pac.
50 Am. Rep. 266; 4 Am. and Eng. Rep. 244; 14 L. R. A. 424.
Corp. Cas. 66; Portland Natural 20 Crescent Steel Co. v. Equitable
Gas Co. V. State, supra; Cincinnati, Gas Co., 2.3 Pittsb. Leg. (X. S.)
etc., R. R. Co. V. Bowling Green, 316.
57 Ohio St. 336; 49 N. E. Rep. 121; 21 Griffin v. Goldsboro Water Co.,
Owensboro Gaslight Co. v. Hilde- 122 N. C. 206; 30 S. E. Rep. 319;
brand, 19 Ky. L. Rep. 983 ; 42 S. W. 41 L. R. A. 240.
Rep. 351. 22 State v. Butte City Water Co.,
iTShepard v. Milwaukee Gaslight 18 Mont. 199; 44 Pac. Rep. 966;
Co., 15 Wis. 318; 82 Am. Dec. 679. 32 L. R. A. 697; 56 Am. St. Rep.
18 Owensboro Gaslight Co. v. Hil- 574 ; 4 Am. and Eng. Corp. Cas.
debrand. 19 Ky. L. Rep. 983; 42 (X. S.) 238.
S. W. Rep. 351.
580 OIL AND GAS.
an unjust discrimination to charge a less rate to a manufacturer
using a certain amount in one plant than is given a manu-
facturer operating several disconnected plants, although using
as much as the larger manufacturer.-^
§527. Failure of supply of natural gas. — Discrimination.
Another phase of discrimination is a refusal to supply new
customers because of lack of gas to supply both them and its
old customers. So long as a gas company occupies the streets
of a municipality with its pipes it must serve all alike whose
property abutts upon the street occupied by them. A defense of
its inability to supply all its customers was brought forward
by a natural gas company organized to furnish gas at actual
cost; but the court held it was not a sufficient defense to an
action to compel gas to be furnished to a new customer. " The
legal effect of the answer," said the court, " is that the relatrix
shall have no gas because her neighbors, in common right, have
none to spare. It is admitted, because not denied, that the
relatrix is a member of that part of the public which appellee
has engaged to serve. As such she has borne her part of the
public burdens. She has rendered her share of the considera-
tion. Bellefontaine Street in front of her house has beeen dug
up and her property made servient to the use of the appellee
in laying its pipes, and in carrying forward its business, and
the right to use the gas, and to share in the public benefit, thus
secured, whatever it may amount to, is equal to the right of
any other inhabitant of the city. The right to gas is held in
common by all those abutting on the streets in which appellee
had laid its pipes, or is held of right by none. The legislature
alone can authorize the doing of the things done by the appellee,
and this body is prohibited by the fundamental law from grant-
ing a sovereign power to be exercised for the benefit of a class,
or for the benefit of an^ part of the public less than the whole
residing within its range. Appellee's contract is with the State
23 St. Loviis Brewing Ass'n v. St. inate between consumers. Rierker
Louis (Mo.), 37 S. W. Rep. 525. v. Lancaster, 14 Lane. L. Rev. 393.
A municipality cannot discrim-
GAS COMPANY AND CONSUMER. 581
and its extraordinary powers are granted in consideration of its
engagement to bring to the community of its operations a public
benefit; not a benefit to a few, or to favorites, but a benefit
equally belonging to every citizen similarly situated who may
wish to avail himself of his privilege, and prepare to receive
it. There can be no such thing as priority or superiority of
right among those who possess the right in common. That the
beneficial agency shall fall short of expectations can make no
difference in the right to participate in it- on equal terms. So if
the appellee has found it impossible to procure enough gas
fully to supply all, there is no sufficient reason for permitting
it to say that it will deliver all it has to one class to the ex-
clusion of another in like situation. It is immaterial that
appellee was organized to make money for no one, but to supply
gas to the inhabitants of Indianapolis at the lowest possible rate.
It has pointed us to no special charter privilege, and under the
law of its creation, certain it is, that its imselfish purpose will
not relieve it of its important duty to the public. The principle
here announced is not new. It is as old as the common law
itself. It has arisen in a multitude of cases affecting railroad,
navigation, telegraph, telephone, water, gas and other like com-
panies and has been many times discussed by the courts and no
statute has been deemed necessary to aid the courts in holding
that when a person undertakes to supply a demand which is
affected with a public interest, it must supply all alike who
are alike situated, and not discommode in favor of, nor against
any." ''
§528. Supply only to abutting property owners.
The general rule is that a gas company is required to supply
only property abutting upon the company's lines or mains.
There are many dicta to this effect.'^ But this question is often
-* State V. Consumers' Gas Trust Gas and Oil Co. v. State, 135 Ind.
Co., 157 Ind. 345; 61 N. E. Rep. 54; .34 N. E. Rep. 818; 21 L. R. A.
674; 55 L. R. A. 245; Rierker v. 639; Shepard v. Milwaukee Gas-
Lancaster, 14 Lane. L. Rev. 303. light Co., 6 Wis. 539; 70 Am. Dec.
25 Grii!in v. Goldsboro Water Co., 479 ; Commonwealth v. Wilkes-
122 N. C. 206; 30 N. E. Rep. 319; Barre Gas Co., 2 Kulp 499; Coy v.
41 L. R. A. 240; Portland Natural Indianapolis Gas Co., 146 Ind. 655;
582 OIL AND GAS.
regulated by a statute or ordinance frequently requiring the
company to furnish gas to persons not upon its lines ; as where
they live within a '' reasonable distance from the line of main
pi^Des," in which event what is a " reasonable distance " is a
question for the courts.'*' Where a statute required a company
to furnish gas to the occupant of a building within 100 feet of
any of its mains, it was held that the 100 feci was the space be-
tween its nearest main and the nearest portion of the building,
and not to the ]>ortion for which gas -was desired."' Of course, if
there is a special contract existing between the would-lw con-
sumer and the company, then it is not a question whether or not
the consumer is an abutting property owmer, or his property lies
within the prescribed distanco ; and even though the company
is not bound to supply the applicant gas, by reason of the fact
that his property is too remote, yet if it accept his application,
with a full knowledge of that fact, it cannot deny him the right
to the gas after such acceptance. Xo doubt the company can
require of such an applicant an extra price for the gas, and for
putting in pipe to his premises ; for the whole matter lies in a
special contract and not in a general duty to supply the public.
§529. Extension of mains or pipes.
A gas company is not bound to extend its mains or pipes to
territory not occupied by it, unless a statute, or a binding
ordinance, its charter or a contract requires it to do so, even
though it have the privilege to occupy any street or all the
streets of the municipality. But the matter of extension of
mains almost universally is governed by a statute or the com-
pany's contract (usually embodied in an ordinance) with the
municipality. Sometimes the municipal governing body has
46 N. E. Rep. 17; 36 L. R. A. 535; 26 West Hartford v. Hartford
8 Am. and Eng. Corp. Cas. (K. S.) Water Com'rs, 68 Conn. 323; 36
771. Even though the line was Atl. Rep. 786.
paid for by other consumers, so long -^ Jones v. Rochester Gas, etc.,
as it laid in the street. Hangen v. Co., 7 N. Y. App. Div. 465; 39 N.
Albina Light and Water Co., 21 Y. Supp. 1105; affirmed 158 N. Y.
Ore. 411; 28 Pac. Rep. 244; 14 L. 678; 52 N. E. Rep. 1124.
R. A. 424.
GAS COMPANY AXD COXSTJMEK. 583
the power to order and enforce an extension of the mains ; and
in other instances the gas company is bound to extend a main
only iijwn application of a certain number of persons agreeing
to take gas.
§530. Inspection of premises.
Elsewhere has been discussed the right of a company to in-
spect the meter and so much of the pij^e as lies between the
meter and the company's mains, — or as it is frequently called,
the supply pipe."^ The right of the company, however, to
inspect the house pipes, chandeliers, gas burners, furnaces,
stoves and heaters in which gas is burned, is another question.
In the case of furnaces, stoves and heaters where the company
has lawfully reserved the right to insist upon the use of certain
kinds, there is no doubt of the right of the company to insist
upon an insjDection at proper times under proper limitations,
to see if their requirements have been complied with. And per-
haps the company has the right to insist upon an examination
of the pipes, burners and chandeliers when application is made,
to see if the house or building is equipped for the use of gas,
although there is some doubt on the question ; for the company
is not bound to furnish gas to an applicant not prepared to
properly receive it.'" Thus in a Xew York case it was said
"As the company have no control over the piping, does not put
it in, and is not consulted about it, the principle upon which
it might be held liable, in cases of this character, at the time
of the first delivery of gas, if no precaution were taken at all,
is simply that it Avould have the right to refuse to turn on, or
permit others to turn on, the gas for the supply of the appli-
cants until properly assured of the condition of the piping in
other portions of the building. Having become assured of it,
and the gas being on, it would not seem that the company ought
further to be regarded as liable for the continuous good con di-
ss See Young v. Southwark, etc., Barre Gas Co. v. Turner, 7 Kulp
Co.. 69 L. T. 144; 41 W. R. 622; 399.
57 J. P. 806 ; 5 R. 432. and Wilkes- 29 State v. Xew Orleans, etc.,
Co. (La.), 32 So. Rep. 179.
584 OIL AXD GAS.
tion of the pipiug'. Here we may justly say that to impose
such a liability upon the defendant would clearly be unreason-
able. It would render necessary the examination, at frequent
intervals, of all the buildings in the city in which gas was used.
This would be so onerous as to be practically impossible of
execution ; because of the expense to the company." '"* Xo
doubt exists, however, that a company may adopt a rule provid-
ing for inspection, uptn proper notice given of the time when it
would be made ; and perhaps, the rule might provide for in-
spection at any time during business hours of the day."^ And
an agreement on the part of the consumer to permit an inspec-
tion is binding upon him.^' Where a gas company, upon con-
tract with the owner of the property, laid a supply pipe from
it smain to his house ; and gas escaping because of a defect in
the pipe, causing an explosion, the company was held lia])le.^^
This liability would, of course, carry a right to enter upon the
premises to inspect the supply pii>e. But where the owner of
the property put in the supply pipe, which became defective
after use, and an explosion occurred ; it was held that the com-
pany was not liable, because of the fact that the owner of the
property had put in the pipe. From this it would seem that
the company had no right to inspect the supply pipe.^*
§531. Mandamus to compel supply.
Any person whose property abuts upon a gas company's line,
(and a tenant is such a person), and who has complied Avith the
rules and regulations of the company, and prepared his house or
building for the reception of gas, and is not in arrears for gas
supplied in the manner and form heretofore discussed, ^^ may
compel the company by a writ of mandamus to supply him with
gas, if it refuses or neglects to do so upon proper application
■■'"Sehmcer v. Gaslight Co.. 147 Coke Co.. L. R. 7 Ex. OG ; 41 L. J.
X. Y. ,529; 42 -X. E. Rep. 202; 70 E.xch. 4G; 26 L. T. 318; 20 W. R.
X. Y. St. Rep. 92; 30 L. R.^A. G53. 493.
31 Shepard v. ^Milwaukee Gaslight '4 Henderson v. Xew Castle and
Co.. 6 Wis. 539; 70 Am. Dec. 479. Galeshead Gas Co.. 37 Sol. J. 403.
"•2 Wright V. Colchester Gas Co., 35 State v. Xew Orleans, etc.. Co.
30 Gas J. 336. (La.), 32 So. Rep. 179.
33 Burrows v. March Gas and
GAS COMPANY AND CONSUMER. 585
made."*' So mandamus will lie to compel a deputy inspector of
gas meters for the city to inspect the consumer's meter, and if
fou^id correct, to seal or stamp it, where a statute requires all
meters to be used to be examined, sealed and stamped before
user.''^ To entitle the applicant to the writ, it is not necessary
that he should have an interest in the company different from
that held by other citizens ; and it is no defense that he is
already supplied by another company.^* But the consumer
must be ready to receive the gas when he makes his apiplication
for it and when he applies for a writ of mandamus ; for a
company should not be subject to the costs and annoyance of
such a proceeding where a customer is not ready to use the gas.^""^
If the company has demanded an illegal rate, it is not necessary
for the consumer to tender the amount actually payable, where
the rate is payable in advance, before bringing his action ; but
in his petition he may state his abilit}^ to pay and a willingness
to do so upon granting the writ or before any gas is actually
furnished.**' The duty to supply gas includes turning it on
when applied to for that purpose, the proper connections having
been made, the meter furnished where the company is bound
to furnish one.*^ As a rule the right to the writ is limited tp
those whose property abuts upon the company's mains or pipes ;
36 Richmond, etc., Gaslight Co. v. Rep. 236; 50 Am. Rep. 266; 4 Am.
Middletown, 59 In. Y. 228; 1 T. and and Eng. Corp. Cas. 66. Contra,
C. 143; People v. Manhattan Gas- Commercial Bank v. London Gas
light Co., 45 Barb. 136; 1 Abb. Pr. Co., 20 Up. Can. Q. B. N. C. 233;
(N. S.) 404; 30 How Pr. 87; State State v. New Orleans, etc., Co.
V. Consumers' Gas Trust Co., 157 (La.), 32 So. Rep. 179.
Ind. 345 ; 61 N. E. Rep. 674 ; 55 37 in re McDonald, 16 N. Y. Misc.
L. R. A. 245; Shepard v. Milwau- Rep. 304; 39 N. Y. Supp. 367.
kee Gaslight Co., 6 Wis. 539; 70 ss Portland Gas Co. v. State, su-
Am. Dec. 479; Portland Natural jjra.
Gas and Oil Co. v. State, 135 Ind. so Portland Gas Co. v. State, sii-
54; 35 N. E. Rep. 818; 21 L. R. A. pra ; Shepard v. Milwaukee Gas-
639; Hangen v. Albina Light and light Co., supra.
Water Co., 21 Ore. 411; 28 Pac. 4o Northern Colorado, etc., Cq. v.
Rep. 244; 14 L. R. A. 424; Crum- Richards, 22 Colo. 450; 45 Pac.
ley V. Watauga Water Co., 99 Tenn. Rep. 423.
420; 41 S. W. Rep. 1058; Bloom- 4i Schmeer v. Gaslight Co., 147
field, etc., R. R. Co. v. Richardson, N. Y. 529; 42 N. E. Rep. 202; 70
63 Barb. 437 ; Williams v. Mutual N. Y. St. Rep. 92 ; 30 L. R. A. 653.
Gas Co., 52 Mich. 499; 18 N. W.
586 OIL AXD GAS.
and it is not awarded to those to whom the company would not
be compelled to extend its mains, especially if the cost of the
extension would be out of proportion to the income that would
be received/^ But this question is often regulated by statute
or an ordinance requiring the company to extend its mains to
regions not occupied by it upon demand of a prospective cus-
tomer or of a certain number of customers. It is no defense
to the writ that the company has not enough gas, — as natural
gas, — to supply its then customers ; and to compel them to take
on additional customers would injure their present customers.*^
If the company would have the right to turn off the gas, if it
were supplying it, because of a failure of the applicant to pay
past bills that he owes, then he cannot successfully insist upon
his rights to the writ ; and this is true even though they had
furnished him gas upon ]^s application after such bills were
due.*® A person who intends to make only occasional use of the
gas is not entitled to the writ as, for instance, to use it only
when the electric light in his house should fail.*^
§532. Mandamus to compel furnishing of gas to a city.
There is no doubt that a municipality may compel a gas
company to furnish gas under a contract it has with it, the same
as a private individual ; and is not compelled to resort to an
action for damages.*^
§533. Penalties for failure to supply gas. — Damages.
Often statutes inflict penalties u]X)n a gas company for a
neglect or refusal to furnish gas. This is especially true in
43 state V. Consumers' Gas Trust press Co. v. Cincinnati Gaslight and
Co. stiprja; Hangen v. Albina Light Coke Co., 10 Ohio Dec. 389; 21
and Water Co., suvra. Wkly. Law Bull. 18.
45 State V. Consuvners' Gas Trust 48 Toledo v. N. W. Ohio Natural
Co., supra. Gas Co., 5 Ohio C. C. 557; 3 Ohio
40 People V. Manhattan Gaslight Cir. Dec. 273 ; Williams v. Mutual
Co., 45 Barb. 136; 30 How.^r. 87; Gas Co., 52 Mich. 499; 50 Am. Bcp.
1 Abb. Pr. (N. S.) 404. 26G; 18 N. W. Rep. 286; 4 Am. and
4T .Smith V. Capitol Gas Co., 132 Eng. Corp. Cas. 66; People v. New
Cal. 209; 64 Pac. Rep. 258; Flem- ^ork. etc., Water Co., 56 N. Y.
ing V. Montgomery Light Co. Supp. 364.
(Ala.), 13 So. Rep. 618; Adams Ex-
GAS COMPANY AXD CON'SUMER. 587
England. Thus a statute of that C(juntrY^'' provides that if
it be shown before any two justices of the peace "■ that any day
the gas supplied by the undertakers is under less pressure, of
less illuminating power, or of less purity than it ought to be
according to the provisions of '' that or of a sjjecial act referred
to, " the undertakers shall in every such case forfeit and pay
to the local authority or other persons making application for
testing the gas such sum not exceeding twenty pounds, as the
justices shall determine."' It was held that this statute applied
to a case where the company improperly cut off the gas, for
the reason that a refusal or neglect to supply gas was a neglect
or refusal to supply it under the pressure the statute required.^"
Under this statute the penalties form the only remedy, no action
lying for damages. ^^ Under this and similar statutes it is held
in that country that the consumer cannot set up as a defense
the gas supplied was of an inferior quality, such a defense
being only ground for claiming a fine from the company."' In
]S[ew York it was held that the company was not liable to place
a gas meter on plaintiff's floor, where he resided in an apart-
ment house, if gas was furnished the building, unless he put in
a separate service or supplying pipe.^" A statute requiring a
gas company to supply the owner or occupant of a building
rendering the company liable to only one action to recover a pen-
alty, for a failure to supply gas, of ten dollars, and the further
sum of five dollars for every day of refusal ; and a subsequent
action for penalties accruing during the continuance of the
default in the absence of a new application cannot be main-
4934 and 35 Vict. [1871], Cli. 402); Clegg v. Earby Gas Co.
41, Sec. 36. [1896], 1 Q. B. 592; 65 L. J. Q. B.
50 Commercial Gas Co. v. Scott, 339. See Johnston v. Toronto Con-
L. R. 10 Q. B. 400; 44 L. J. M. C. sumers' Gas Co. [1898], App. Cas.
171; 32 L. T. (N. S.) 765; 23 W. R. 447; 78 L. T. 270.
874; 44 L. J. Q. B. 715. 52 Porquay Gas Co. v. Carter, 32
51 Atkinson v. New Castle W. W. Gas J. 490; Great Central Gas Con-
Co., L. R. 2 Exch. Div. 441; 46 L. sumers' Co. v. Tallis, 3 Gas J. 5.
J. Exch. 775; 25 W. R. 794; 36 See Gaslight and Coke Co. v. St.
L. T. 761 (reserving L. R. 6 Exch. George. 42 L. J. Q. B. (N. S.) 50.
Div. 404 ; 20 W. R. 35. and disap- 53 Ferguson v. ;Metropolitan Gas-
proving Couch V. Steel, 3 E. and B. light Co., 37 How Pr. 189.
588
on. AND GAS.
tained.^* Under the Iscw York statute before the penalty is
incurred, an application must be presented, stating, among other
things, the number of lights (and in case of an olcetric lighting
company, how much power) is required, especially where the
company at the time it receives the application requested such
information.^^
54 Jones V. Rochester, etc., Co.,
168 N. Y. 65; 60 N. E. Rep. 1044;
reversing 64 N. Y. Supp. 1138.
In Jones v. Rochester, etc., Co.,
Co., 39 N. Y. Supp. 1105, 1110; 7
N. Y. App. Div. 465; affirmed 15S
N. Y. 678; 52 N. E. Rep. 1124, it
was held that a succession of penal-
ties under this statute may be re-
covered in successive actions. In
this case there was a dispute fe-
Lween the customer and company.
The statute referred to in these
cases did n-ot apply to natural gas
companies organized under the
" business corporation law." Wil-
son V. Tennant, 70 N. Y. Supp. 2;
61 N. Y. App. Div. 100; affirming 65
N. Y. Supp. 852; 32 Misc. Rep.
(]SJ. Y.) 273.
55 Andrews v. North River, etc.,
Co., 23 N. Y. Misc. Rep. 512; 51
N. Y. Supp. 872.
In England where a statvtte re-
qviired water rates to be paid quar-
terly in advance, a water company
is not liable to a penalty for a fail-
ure to supply water if the com-
plainant has not paid the rate in
advance, although it is not the cus-
tom of the company to take prepay-
ment. Kyffin V. East London W.
W. Co., 66 Gas Jr. 243; Thorn v.
East London W. W. Co.. 66 Gas
Jr. 189; Sheffield W. W. Co. v.
Brooks. 8 Q. B. Div. 632; 51 t. J-
M. C. 97; 30 W. R. 889; 46 J. P.
548. See Sheffield \Y. W. Co. v.
Wilkinson, 4 C. P. Div. 410.
The laws of New York, 1859, Ch.
3311, Sec. 6, imposing a penalty on
gaslight companies, which, for ten
days atter an application for gas
neglects to supply it, applies where,
although gas has been furnished
within the ten days, there has been
a neglect to give a continuous sup-
ply. Meiers v. Metropolitan Gas-
light Co., 11 Daly 119.
In Alabama a municipal corpora-
tion may adopt an ordinance im-
posing a fine or imprisonment on
an officer or employee of a water
company for the exaction of a rate
in excess of that stipulated in a con-
tract between the company and the
city for a supply of water for the
city and its citizens, but not for
the commission of an act authorized
by such contract. Crosby v. Mont-
gomery, 108 Ala. 498; 18 So. Rep.
723.
A municipality cannot adopt an
ordinance requiring a railroad com-
pany to maintain a particular kind
of light at its crossings in its mu-
nicipal bovmdaries, though it may
require it to maintain a sufficient
light to protect travelers. Cleve-
land, etc., Ry. Co. v. Connersville,
147 Ind. 277; 46 N. E. Rep. 579;
Contra, Cincinnati, etc.. R. R. Co.
Co. V. Bowling Green, 57 Ohio St.
336; 49 N. E. Rep. 121.
GAS COMPAKY AND CONSUMEE. 589
§534. Damages for failure to supply g'as. — Sickness.
Where a company undertakes to supply a customer of a mu-
nicipality with gas under an ordinance requiring it to do so,
or under its general public duty, and it fails to do so, especially
nfter it has begun to supply him, it will be liable to him in
an action of tort for all damages traceable to the wrong done,
arising without an intervening agency and without the fault of
the injured party. And it is also a tort, under such circum-
stances, where a contract existing between the company and the
consumer, such as is usually entered into by consumers in a
municipality. '^ The failure to perform such a contract is in
itself a ' tort.' " ^° In such an instance it is no defense for the
company that it did not have the gas to furnish or enough to
furnish the fnll amount it had agreed to furnish if it fully
supplied other customers ; nor is it a defense that the consumer
could have recovered back an amount of the sum he paid pro-
portionate with the amount of gas it had failed to supply.
In such an action the consumer may show that other consumers
in buildings received an insufficient supply, where it is shown
that such buildings were attached by means that would furnish
as nuicli or more gas than the attachment at his own stove.
If the company take pay for the gas and retain it, it is no
excuse that the supply of gas failed, and it, for that reason
could not keep its contract. ]^or is it a defense that the con-
sumer removed his mixer and burned the gas without using it,
ns the rules of the company and his contract with it required,
it having received pay for the gas in advance.^^ Where there
is a failure to supply merely illuminating gas, the consumer has
a right to recover back not only what he has paid for the gas
!^6 Coy V. Indianapolis Gas Co., only a statement of the reasonable
146 Ind. 6.55; 46 N. E. Rep. 17; 36 conditions under which the com-
L. R. A. 5.35 ; 8 Am. and Eng. pany was required to perform its
Corp. Cas. (N. S.) 771; Indiana, duty.) Shepard v. Milwaukee Gas-
etc, Gas Co. v. Anthony, 26 Ind. light Co., 15 Wis. .318; 82 Am. Doc.
App. 307; 58 N. E. Rep. 868; Hocli- u;9.
le V. Allegheny Heating Co.. 5 Pa. ^'' Indiana, etc.. Gas Co. v. An-
Super. Ct. 21; 40 W. N. C. 553; 28 thony. 26 Ind. App. 307; 58 N. E.
Pittsb. L. J. (N. S.) 65. (This is Rep. 868.
esr)eciallv true if the contract is
590 OIL AND GAS.
not furnished, but also the damages he has suffered in his busi-
ness, as well as for the inconvenience and annoyance experi-
enced by him in his business, if it was to be supplied for the
purpose of lighting up his business establishment, arising out
of the refusal to furnish gas.^* This, of course, would include
loss of profits. And where the owmer of a business house pre-
pared it ready to receive the gas, it was held that he could
recover from the company refusing him gas the depreciation of
the property for sale or lease, and the expense of restoring the
property to a proper condition, divested of the gas pipes, in
addition to other damage legitimately flowing from such re-
fusal.^** An aeronaut of some celebrity brought suit to recover
damages estimated at over 500 dollars, occasioned by a failure
of a gas company to keep a contract to supply his balloon with
gas, on an occasion of an intended ascent in a city ; and it was
held that the plaintiff was entitled to maintain the action.""
But a boarding house keeper was not allowed damages for loss
of the profits she would have derived from her boarders who left
because of a failure of the company to furnish gas."^ Yet
where a natural gas (or other) gas company undertakes to
furnish gas for heating purposes, and fails to do so, it will be
liable, after notice of the probable effects of such failure and the
consumers' inability to procure other fuel, in damages, for
sickness occasioned thereby to the consumer and his family, even
for the death of his child or wife,°" unless the company show
that it was beyond its power to furnish the gas.*'^ Where a
58 Shepard v. Milwaukee Gaslight ei Morey v. Metropolitan Gas Co.,
Co., 15 Wis. 318; 82 Am. Dec. 679; 6 J. and S. (N. Y.) 185. The sound-
Baltimore Gaslight Co. v. Collidaj% ness of this decision may well be
25 i\Id. 1 ; Whitehouse v. Liverpool, doubted.
etc., Co., 5 C. B. 798; 5 M. Gr. and 62 Coy v. Indianapolis Gas Co.,
S. 798; Kokomo, etc., Co. v. Al- supra; Indiana, etc.. Gas Co. v. An-
bright, 18 Ind. App. 151; 47 N. E. tnony, supra; Hoehle v. Allegheny
Rep. 682, rental of houses recov- Heating Co., 5 Pa. Super. Ct. 21;
ered. ^ 40 W. N. C. 553; 28 Pittsb. L. J.
59 Baltimore Gaslight Co. v. Col- (N. S.) 65.
liday, 25 ]\Id. 1 ; Bedding v. Im- gs Coy v. Indianapolis Gas Co.,
perial Gaslight Co. 7 Gas J. 418. supra.
fio Hampton v. Oxford Gas Co., 3
Gas J. 64.
GAS co:mpany axd consumer. 591
company enters into a contract to furnish a glass factory with
gas to run its pots and failed to keep it, the glass business being
new in that vicinity, and the expense necessarily and actually
incurred in organizing the factory, its fair rental value when
idle, if it had any, and if it had none, the interest on the money
invested therein, together with the interest on any idle working
capital, the value of which had been lost by a violation of the
contract, the cost of bringing new and skilled workingmen from
a distance, none being in that vicinity ; the cost of their trans-
portation, and the compensation agreed or required to be paid
for the service of the glass company's affairs may be treated as a
part of the necessary expenses and damages recoverable.^* It is
no defense that the insufficient supply was occasioned by the
freezing of the gas mains, if the company was careless in pro-
tecting them from the frost ; and the presumption is that the
gas mains would not have frozen up if pro]3€rly protected.*'"'
If the company improperly cut off the gas, to enforce the pay-
ment of a bill for which the consumer was not liable to pay, it
will be liable for the damages thereby occasioned.*'" But a
consumer cannot recover damages for a failure to supply gas
under a contract giving him an illegal preference, — as with
the directors and stockholders, — for all consumers within a
municipality must be served alike.*'^
§535. Limiting^ liability for failure to supply gas.
A company has no right or power to limit its liability to
furnish a sufficient supply of gas within a municipality. A
duty is imposed by law to supply gas against which it cannot
shield itself by a contract w^ith the customer.*'^ If the supply
64 Paola Gas Co. v. Paola Glass gt Shoenberger v. Equitable Gas
Co., 56 Kan. 614; 44 Pac. Rep. 621. Co., 22 Pittsb. L. J. (N. S.) 347;
65 Stock V. Boston, 149 Mass. Crescent Steel Co. v. Equitable Gas
410; 21 X. E. Rep. 871. Xot lia- Co., 23 Pittsb. Leg. J. (N. S.) 316.
ble in case of frost oi an excep- Where no pecuniary loss is
tional character. In re Richmond shown, the damages recoverable are
Gas Co. [1893], 1 Q. B. 56. nominal. Detroit Gas Co. v. More-
66 Merrimac River Saving Bank ton. etc., Co., Ill Mich.' 401; 69
V. Lowell, 152 Mass. 556; 26 N. E. X. W. Rep. 659.
Rep. 97; 10 L. R. A. 122. es Sec. 525.
592 OIL AND GAS.
in case of natural gas, should fail, that would he a defense, in
ease the company had made all efforts to furnish the gas; for
natural gas is an article that cannot be manufactured, a quite
different situation from an instance of supplying artificial gas.
But it is quite another proposition Avhere the company is under
no duty to furnish gas. There the company may limit its
liability; for the right to gas in that case rests wholly upon
contract. Thus, in case of natural gas the contract may "be to
furnish it for a plant so long as the company has gas, and
the contract is not void for indefiniteness, even though the
consumer use gas for domestic purpases."*^ Where a company
agreed to furnish gas to certain customers so long as with
ordinary diligence and outlay it could procure gas under the
contracts then ordinarily in use by gas companies, it was held
that its " diligence and outlay " was to be measured as of the
date of the contract, and not imder conditions entirely altered.'"
§536. Application for gas.
A gas company may require the applicant for gas to sign a
written application, containing a general description of the
premises to be supplied and an agreement to abide by the rules
and regiilations of the company.^^ But if any of the rules are
unreasonable, the applicant will not be bound by them, even
though he agree to them ; for his agreement is under the nature
of a compulsion, to secure a service to which he is otherwise
entitled to have. In a contest, the court will determine whether
or not the rules are reasonable, of any particular one of which
complaint is made. These rules may be embodied in the appli-
cation ; or may be made a part of it by apt words of reference
thereto. But even this is not necessary ; for the applicant will
69 Xenia Real Estate Co. v. Macy. 7i Williams v. Mutual Gas Co.. 52
147 Ind. 568; 47 N. E. Rep. 147; Mich. 499; 18 N. W. Rep. 236; 50
i3lack Lick V. Saltsburg, 139 Pa. St. Am. Rep. 266; 4 Am. and Eng.
448; 21 Atl. Rep. 432; Whitman v. Corp. Cas. 66; Shepard v. Mihvau-
Fayette Fuel Gas Co., 139 Pa. f92; kee Gas Co., 6 Wis. 539; 70 Am.
20 Atl. Rep. 1062. Dec. 479; State v. New Orleans,
70 Crescent Steel Co. v. Equitable etc., Co. (La.), 32 So. Rep. 179.
Gas Co., 23 Pittsb. L. J. (N. S.)
316.
GAS COMPAXY AND COI^SUMER. 593
be bound by all reasonable rules of tbe company brought to his
attention without an express agreement concerning them/- If
only an oral application is made, and the company refuse to
supply gas for a particular reason, not refusing because a writ-
ten application is not made, it thereby waives its right to de-
mand a written application, although its rules require it.'''
The company may reserve the right to cut off the gas to pre-
serve itself from fraud or abuse ; but it cannot assume to itself
the whole power to decide upon the question of fraud or abuse,
without notice, without trial, and upon its own mere motion.^*
Xor can it insert in the application an agreement or adopt a rule
that tlie applicant, after admission of gas into his pipes, must
not disconnect or open them for repairs or extensions, or other-
wise, without a permit from the company, under a penalty of
three times the amount of damages sustained.'^ Where a rule
of the company required the application to be in writing, the
general agent and manager of the business of a merchant re-
siding in another and distant city, but having an extensive
mercantile business in the city where the business is conducted,
may authorize one of the clerks to make the dejuand for the
inerchant for a supply of gas in the city where such business is
being carried on/'' And a company cannot reject an applica-
tion of a tenant on the gi'ound that it had adopted a rule to deal
(inly with the owner or his agent of the property to which gas
is to be supplied." ^Notice to supply gas, left with a person at
the company's office at work around the office and behind tne
desk, where such person had attended to previous notices, and
who testified that he was a clerk in the employ of the company,
having charge of job work, surface work and the gas stove
business, was held sufficient to bind the company, and render it
72 Shiras v. Ewing, 48 Kan. 170; "o Shepard v. Milwaukee Gas Co.,
•29 Pac. Rep. 320. 11 Wis. 234.
73 Shepard v. Milwaukee Gaslight 77 State v. Butte City Water Co..
Co., supra. 18 Mont. 199; 44 Pac. Rep. 966; 32
74 Shepard v. Milwaukee Gaslight L. R. A. 697 ; 56 Am. St. Rep. 574 ;
Co., supra. 4 Am. and Eng. Corp. Cas. (N. S.)
75 Shepard v. Milwaukee Gas Co., 238.
6 Wis. 539; 70 Am. Dec. 479.
594
OIL AND GAS.
liable to a penalty for failure to comply tlierewith/* It is a
sufficient defense in a suit for damages incurred by reason of
a failure to furnish gas that the plaintiff refused to sign the
rules and regulations of the defendant, but that fact must be
set up specially by answer. Yet the conduct of the gas company
may have been such as to preclude such a defense ; as where it
has always rested its refusal on other grounds. ' In such an in-
stance it waived all other defenses.'^''
§537. Rules and regulations.
A gas company has the right to adopt rules and regulations
under which it will supply its customers ; but these rules must
be reasonable and not impose an undue burden upon the cus-
tomer.®° Whether or not the rule or regulation is a reasonable
one is a question for the colTrt. All contracts are made subject
to such rules.^^ A few instances of the reasonableness or the
unreasonableness of rules and regulations have already been
■^s Jones V. Rochester Gas, etc.,
Co., 7 N. Y. App. Div. 465; 39 N.
Y. Supp. 1105.
In this case it was also held that
a gas company is subject to sepa-
rate penalties for a refusal to sup-
ply gas at the residence and also
at the business office of an appli-
cant, under a statute providing that
if a gas company refuse or neglect
to supply gas for ten days upon
application therefor it shall forfeit
and pay to the applicant the sum
of ten dollars and the further sum
of five dollars for every day during
which the refusal or neglect con-
tinues. In this case it was also
hold that the consent of the appli-
cant to the removal of the meter
from the premises to be supplied
during the controversy over hTs lia-
bility for a specified amount of gas
would not prevent him from recov-
ering the penalty.
TO Shepard v. Milwaukee Gas Co.,
11 Wis. 234. See Northern Colora-
do, etc., Co. V. Richards, 22 Colo.
450; 45 Pac. Rep. 423.
80 Louisville Gas Co. v. Dulaney,
100 Ky. 405; 38 S. W. Rep. 703; 36
L. R. A. 125; 6 Am. and Eng.
Corp. Cas. (N. S.) 241; Shepard v.
Milwaukee Gaslight Co., 6 Wis. 539;
70 Am. Dec. 479; Portland Natural
Gas Co. V. State, 135 Ind. 54; 34
]N. E. Rep. 818; 21 L. R. A. 639;
State V. Butte Water Co., 18 Mont.
199; 44 Pac. Rep. 966; 32 L. R. A.
697; 56 Am. St. Rep. 574; 4 Am.
and Eng. Corp. Cas. (N. S.) 238;
Williams v. Mutual Gas Co., 52
Mich. 499; 18 N. W. 236; .50 Am.
Rep. 206; 4 Am. and Eng. Corp.
Cas. 06; Harbison v. Knoxville
Water Co. (Tenn.), 53 S. W. Rep.
993; Pocatello Water Co. v. Stand-
ley (Idaho), 61 Pac. Rep. 518.
81 Shiras v. Ewing. 48 Kan. 170;
29 Pac. Rep. 320.
GAS COMPANY AND CONSUMER. 595
given ; and other instances will be given hereafter. But it may
be added that a rule providing that if a customer waste water,
when not furnished bv meter, his supply may be cut off, is a
reasonable one ; *' and |>erhaps the same would be true if the
Avater was furnished by meter, if the waste Avas so great that the
company could not, by reason of such waste, supply its other
customers with a sufficient supply. A rule providing that after
gas has been admitted into a pipe, the pipes should be neither
opened, extended, nor disconnected, whether they are opened,
disconnected or extended for repairs or otherwise, without the
company's permit, and if the rule in these particulars is vio-
lated the consumer would be required to pay triple damages,
is invalid ; for the company had no power to imjwse penalties
and make a customer agree to the right to impose them if he
violated this particular regulation. Another rule of the same
company providing that it should have the right to shut off the
gas, " in order to protect itself from fraud " was held void ; for
such a question falls within the province of the courts, to which
the company must resort if it would protect itself. A still
further rule provided that the company should have the right
to enter the house at all times to examine the whole apparatus
and to remove the meter and ser\'ice pipes, and this was held
invalid, because it was too general.®^ It is the duty of the
company to inform a customer of its rules in order to bind him ;
but if he knows them it will not be necessary to inform him.
It may be shown that he became aware of them by seeing them
printed on bills presented to him.®*
§538. Subscribing to rules and regulations.
If the rules and regulations of a company are reasonable,
the company may require an applicant for gas to subscribe to
82 Shiras v. Ewing, 48 Kan. 170; A company may require the con-
29 Pac. Rep. 320. sumer to prepare his plumbing ac-
83 Shepard v. Milwaukee Gaslight cording to certain rules it has
Co., 6 Wis. 539 ; 70 Am. Dec. 479. adopted, and to present a report
81 Brass v. Rathbone, 153 N. Y. and certificate of a plumber certi-
435; 47 N. E. Rep. 905; afiirming 8 fying that he had complied with its
N. Y. App. Div. 78; 40 N. Y. Supp. rules. State v. New Orleans, etc.,
466. Co. (La.), 32 So. Rep. 179.
596 OIL AND GAS.
them, or agree in writing to be governed by them,^^ and if he
refuses it is not bound to furnish him gas. But if they are
unreasonable, he is not bound to subscribe to them, nor agree
to abide by tliem; and regardless of them he may maintain
an action to compel the company to furnish him with gas.'^"
In an application for a writ of mandamus to compel a company
to supply gas, it must be averred that the applicant is ready
to comply with all reasonable rules and regulations of the com-
pany; but if any of its rules are illegal, then such illegality
must be especially set up and described, and an averment made
that he is ready to abide by all the other rules of such com-
pany.^^ A company by insisting upon a customer to sign an
application binding him to abide by illegal rules waives its
right to insist that he failed to sign a proper application in an
action against it for damag^ because of its failure to furnish
gas.^^
§539. Price to be charged.
If a statute or an ordinance fixes the price the company may
charge for gas, such company cannot exceed the price named
therein, although it may charge less, unless such statute or
ordinance is invalid by reason of it having been enacted after
the grant of the company's franchise, without any reservation to
control the price of gas furnished. A contract with a munici-
pality to furnish its citizens gas at not to exceed a certain
figure is one that a consumer within such municipality may
enforce.®^ If the rates are not fixed, then the question is
85 Shepard v. Milwaukee Gaslight Rep. 674; 55 L. R. A. 245; Port-
Co., 11 Wis. 234. land, etc., Co. v. State, 135 Ind. .54;
86 Shepard v. Milwaukee Gaslight 35 N. E. Rep. 818; 21 L. R. A. 639.
Co., 6 Wis. 539; 70 Am. Dec. 470; ss Shepard v. Milwaukee Gas Co..
State V. Sedalia Gaslight Co., 34 11 Wis. 234; Shepard v. Milwaukee
Mo. App. 501; 84 Mo. 202; An- Gas Co., 15 Wis. 318; 82 Am. Dec.
dicws V. North River Electric 679.
Liglit, etc., Co., 23 Misc. (N^^Y.) so Noblesville v. Noblesville Gas,
512; 51 N. Y. Supp. 872; Shepard etc.. Co., 157 Ind. 162; 60 N. E.
V. Milwaukee Gaslight Co., 11 Wis. Pvpp. 1032; Watauga Water Co. v.
234. Wolfe, 99 Tenn. 429; 41 S. W. Rep.
8" See State v. Consumers' Gas 1060.
Trust Co., 157 Ind. 345; 61 N. E.
GAS COMPANY A2^D CONSUMER. 597
one common to any transaction of bnying or selling ; ^° although
there are a number of cases which liold that the acceptance of
a charter or franchise by a gas company contains an implied
agreement that the rates made shall be reasonable in amount;
usually however, no effort is made to state what is or is not
a reasonable rate.^^ In such rates there can be no discrimina-
tion ; ^" not even by charging more for gas used for lighting
than that used for heating or manufacturing."'^ iSTor can the
company make a special rate to those owning an interest in it.^*
But it has been held that a gas company may charge one rate
in a neighborhood where it comes in competition with another
company ; and a higher rate where there is no competition, so
long as the latter rates do not exceed the rate allow'ed by a
statute. It is said a reasonable price paid by one is not made
unreasonable because another pays less.**^ Where the ordinance
by which a gas company gains admission to lay its mains in
the street and supply the citizens of the municipality provides
that gas shall be furnished to consiuners upon such terms and
conditions as the common council may thereafter determine, a
duty is imjwsed upon the company to agree with the council
on reasonable terms ; and if the duty be disregarded, the court
may compel obedience to the ordinance by a mandatory in-
90 See Noblesville v. Noblesville Dec. 214; affirmed 27 Wkly. L. Bull.
Gas Co., 157 Ind. 162; 60 N. E. Rep. 128.
1032; Philadelphia Co. v. Park. 138 as Bailey v. Fayette Fuel Gas Co.,
Pa. St. 346; 22 Atl. Rep. 86. 193 Pa. St. 175; 44 Atl. Rep. 251;
91 Cincinnati, etc., R. R. Co. v. 44 W. N. C. 505; 11 Am. and Eng.
Bowling Green, 57 Ohio St. 336; 49 Corp. Cas. (N. S.) 740; Richmond
N. E. Rep. 121; People's Gaslight Natural Gas Co. v. Clawson, 155
and Coke Co. v. Hale, 94 111. App. Ind. 659; 58 X. E. Rep. 1049; 51
406; Toledo v. X. -^y. Ohio Natural L. R. A. 744; Bellaire Goblet Co. v.
Gas Co., 8 Ohio S. and C. P. Dec. Findlay. supra; Dalzell v. Findlay,
277; 6 Ohio N. P. 531. s!<25ra; Cincinnati, etc.. R. R. Co. v.
92 Griffin v. Goldsboro Water Co., Bowling Green. 57 Ohio St. 336 ; 49
126 N. C. 206; 30 S. E. Rep. 319; N. E. Rep. 121.
41 L. R. A. 240; People's Gaslight 94 Crescent Steel Co. v. Equitable
and Coke Co. v. Hale, supra: Bell- Gas Co., 23 Pittsb. Leg. J. (N. S.)
aire Goblet Co. v. Findlay, 5 Ohio 316.
Cir. Ct. Rep. 418; Dalzell v. Find- as Baltimore Gas Co. v. Colliday,
lay, 5 Ohio Cir. Ct. 435; 3 Ohio Civ. 25 Md. 1.
598 OIL AND GAS.
junction."*' Under a contract to furnish gas " at two-thirds of
the lowest average price at Avhich gas shall or may be furnished "
in five specified cities, it was held that the price must be
determined by adding the five lowest cash prices in those cities,
divide the sum total by five, and multiply the result by two-
thirds.**^ The rate to be paid must be measured by the rate
maintained in cities thus named, not at the time of the adop-
tion of the ordinance, but with the fluctuation of rates in such
cities. Thus in Illinois where the gas to be furnished was
to be '' of a quality at least equal to, and rates favorable as
that furnished by " a certain company, it was held that the rate
of that company at the time of the furnishing of the gas should
be taken, and not its rate at the time of the passage of the
ordinance. Therefore, the rates fluctuated with the rates of
such company, and were real]^ subject to its control.'"^ And in
Massachusetts where an ordinance provided that the gas should
be furnished as cheaply as it was furnished in Boston, New
York and Baltimore, it was held that it was not intended that
the company should at all times furnish it as cheaply as it was
being furnished in those cities at the time the ordinance was
passed, but that the rate should vary with the rates in those
cities.^** Where a gas company in accepting an ordinance fix-
so Toledo V. N. W. Ohio Natural os Decatur Gaslight and Coke Co.
Gas Co., 8 Ohio S. and C. P. Dec. v. Decatur, 120 111. 67; 11 N. E.
277; 6 Ohio N. P. 531. Rep. 406; affirming 24 111. App. 544.
In this case the petition for an At the time of the adoption of the
injunction was held defective, it ordinance the rate of the company
only stating that the council passed referred to was over $.3.25 per thou-
an ordinance fixing the price at sand feet; but afterwards it re-
reasonable rates which the company duced its rate to $1.50, and it was
refused to recognize and was pro- held that the city was not liable to
posing to furnish gas at a price in pay any higher price than the re-
excess of that named in the ordi- duced rate.
nance. Nothing was alleged that the 99 Worcester Gaslight Co. v.
company had not agreed with the Worcester, 110 Mass. 353; Cincin-
conncil on a schedule, nor that the nati v. Cincinnati Gaslight and
council had proposed one to the com- Coke Co., 53 Ohio St. 278; 41 N. E.
f any, nor that the company had re- Rep. 239.
fused to negotiate with the council. It must be alleged, in the com-
"■^ Cincinnati v. Cincinnati Gas- plaint by a water company to have
light and Coke Co., 53 Ohio St. 278; an ordinance fixing water rents to
41 N. E. Rep. 239. be paid by citizens declared void be-
GAS COMPAXY AXD COI^SUMEK. 599
ing the rates to be charged consumers expressly reserved all
vested rights under its franchise, one of the provisions thereof
])eing its right to fix its own prices, within reasonable limits, for
gas, such reservation was held to apply to all uses of gas not
specified in the last ordinance/**" Where, under a special con-
tract, a manufacturing company was supplied natural gas for
fuel only, but used it for illuminating purposes also, it was
held liable for the reasonable value of the gas used for the latter
purpose, without regard to the price paid for that used for
fuel/°^ If an ordinance regulating the price of gas be amended
so as to increase the price to bo charged by a particular gas
company only for a certain time, such amendment does not
repeal the amended ordinance, and on the expiration of such
time the prior ordinance is in force and prevails.^"^ if ihe
company sees fit to supply gas at a lower rate than it is entitled
to charge for it, or furnishes a gas of a better quality for fuel
pairiooses than it is required to do, or if the same quality is
furnished for fuel purposes that it is required to furnish for
illuminating purposes, when it is under no obligation to fur-
cause in violation of an agieement tween consumers, a thing forbidden
with it that the rates to be fixed by by the general principles of the law.
the municipality should not be less loi Philadelphia Co. v. Park, 138
than the prices charged in towns of Pa. St. :146; 22 Atl. Rep. 86.
the State similarly situated, that lo^ Thistlethwaite v. State, 149
there is a substantial difference be- Ind. 319; 49 N. E. Rep. 156.
tween the rates as fixed and those An application for water, subject
obtaining in the towns to which ref- to the rules and ordinances of the
erence is made; and it is not sxifii- municipality, constitutes an ex-
cient to merely allege that the re- press consent by the applicant to
spective rates do not correspond, pay the rates charged. Silkman
without showing wherein or to what v. Yonkers Water Comrs., 152 N. Y.
extent there is a difference. Lead- 327; 46 X. E. Rep. 612; 37 L. R. A.
ville Water Co. v. Leadville. 22 827; Rieker v. Lancaster, 7 Pa.
Colo. 297; 45 Pac. Rep. 362. Super. Ct. 149; 42 W. X. C. 160;
100 Noblesville v. Xoblesville Gas Lancaster Hotel Co. v. Lancaster.
Co., 157 Ind. 162; 60 N. E. 1032. 7 Pa. Super. Ct. 159; 42 W. X. C.
The court seems to have overlooked 104. But this is not the case if the
the fact that by such a construe- rates are discriminating or unreas-
tion of the two ordinances it adopt- onable. Griffin v. Golsboro Water
ed a rule which discriminated, or Co.. 122 X. C. 206; 30 S. E. Rep.
might lead to discrimination, be- 319.
600
OIL AND GAS.
iiish it of so high a quality for fuel purposes, — that does not
prevent it charging- the full rate, or changing the supply for
fuel purposes from the higher to the lower quality/"'* It is
proper for a gas company to provide that if gas bills are not
paid within a certain time after due, — as within ten days, —
a small percentage will be added."*
§540. Payment in advance.
Where gas is not furnished by meter measurement, and is
furnished at so much per month, quarter or year, upon what is
known as the " flat " rate, the company may require that it be
paid for in advance; and a rule requiring payment in advance
for three months is a reasonable one.^°^ On an issue whether
w^ater rent was payable in adv|pice, the transactions of the com-
pany and the consumer may be sllo^vu, to reveal their under-
standing as to the time when the payments were to be made.^°'"'
In a case where it is necessary to make a tender, — the rent being
103 People's Gaslight and Coke
Co. V. Hale, 94 111. App. 406.
104 Tacoma Hotel Co. v. Tacoma
Light and Water Co.. 3 Wash. St.
316; 28 Pae. Pvep. 516.
The company cannot add a charge
of one dollar for turning on the gas
where it has been turned off for fail-
ure to pay a bill^ if the bill is paid
and a request made that it be
tvirned on again. American W. W.
Co. V. State, 46 Neb. 194; 64 N. W.
Rep. 711.
The assignee of a gas company's
rights to furnish the inhabitants of
a municipality gas, is bound by
the agreement of the assignor to
! furnish gas for the streets and the
municipal public buildings free of
charge. Freeport School Distric^A'.
Enterprise Natural Gas Co., 18 Pa.
Super. Ct. 73.
A company cannot increase the
charge for gas supplied so as to
cover the amount of a meter rent,
where a statute forbids a meter
rent. Buffalo v. Buffalo Gas Co.,
(N. Y.) 80 N. Y. Supp. 1093.
105 Harbison v. Knoxville Water
Co. (Tenn.), 53 S. W. Rep. 993.
106 Hieronymus v. Bienville Water
Supply Co., 131 Ala. 447; 31 So.
Rep. 31.
In England where a statute re-
quires water rents to be paid in
advance, no penalty is incurred for
a failure to furnish water unless
a payment in advance is made or
tendered, even if the company is in
tne habit of supplying water with-
out such advanced payment. Kyffin
V. East London W. W. Co., 66 Gas.
Jr. 243; Thorn v. East London W.
W. Co., 66 Gas. Jr. 189; Sheffield
W. W. Co. V. Brooks, 8 Q. B. Div.
632; 51 L. J. M. C. 97; 30 W. R.
889 ; 46 J. P. 548. See Houlgate v.
Surrey Consumers' Gas Co., 8 Gas.
J. 261.
GAS COMPANY AND CONSUMER. 601
payable for the quarter in advance, — snch tender will not be
rendered invalid by failure to tender a fee diarged for turning
on the gas, if the company refuse to receive the sum tendered
solely upon non-payment of an illegal charge. In such a case
it waives a tender of the fee."^
§541. Deposits.
It is a reasonable regulation to require an applicant for gas
to make a deposit of a sum of money to secure the payment
of rates, before gas shall be furnished. ^''^ But a company can-
not require a particular person to make a deposit, when no
regulation of a general character has been adopted.^"^ The
sum of two pounds has l>een held a reasonable sum to de-
mand ; ^^^ and so one hundred dollars, where sixty dollars worth
a week was consumed.^^^ Where the applicant for gas paid
the amount demanded and immediately demanded it back ; it
was held that the company was justified in refusing him gas.^^'
So where a consumer refuses to pay only so much of his bill
as exceeded the deposit, because the company would not pay him
interest upon it ; and upon payment of such excess the company
demanded from him a new deposit, — he in his contract agreeing
to make a deposit, — it was held that, on his refusal to make it,
it was justified in shutting off his gas supply.^^^ If the periodi-
cal gas bills greatly exceed the amount of the deposit, the com-
pany may demand that such deposit be increased ; as where the
deposit was fifteen dollars and the monthly gas bill forty-five.
A request for the payment of the bill and an increase of the de-
posit at the same time does vitiate the demand for the in-
107 Northern Colorado, etc.. Co. v. lof Owensboro Gaslight Co. v.
Richards, 22 Colo. 450; 45 Pac. Hildebrand. 19 Ky. Law Rep. 983;
Rep. 423. 42 S. W. Rep. 351.
108 Williams V. Mutual Gas Co., no Samuel v. Cardiff Gas Co., 18
52 Mich. 499; 18 N. W. Rep. 236; Gas. J. 192.
50 Am. Rep. 266; 4 Am. and Eng. m Williams v. Mutual Gas Co.,
Corp. Cas. 66; Ford v. Brooklyn supra.
Gaslight Co., 3 Hun 621; Shepard 112 Littlewood v. Equitable Gas
V. Gaslight Co., 6 Wis. 539; 70 Am. Co.. 8 Gas J. 541.
Dec. 479; Wright v. Colchester Gas u'' Wright v. Colchester Gas Co.,
Co., 30 Gas. J. 336. 30 Gas J. 336.
602 OIL AND GAS.
crease."* If a company accept security in place of a deposit, it
waives its right to sucli deposit, as where the company took
the plaintiff's demand note for the amount of the deposit, and
immediately demanded its payment, the applicant requesting a
short delay in payment, it was held that it was an illegal act
to at once cut off his supply of gas, for the security still ex-
isted."^ It has been held that the question whether or not
the deposit was a reasonable one was one for the jury.^^'' The
consumer has the burden to show that the deposit is unreason-
able."'
§542. Discrimination in use. — Rates.
One rate cannot be adopted for those who use natural gas
for light and another for thoap who use it for heat. The rate
for both purposes must be the same. Thus where the rate for
heat alone was fixed by the company at twelve and a half cents
per thousand feet, and for both heat and light at twenty cent&
the rule of the company was held to be unreasonable and invalid.
It was contended by the company that it was not shown that
natural gas for illuminating purposes was of less value than
it was for fuel, or that when used both for light and fuel it
was not reasonably worth twenty cents ; and for this reason it
claimed that it had made no unjust discrimination against the
complaining consumer. The record did not disclose how many
feet the plaintiff had used for light and how many for fuel, and
because of this fact it was contended that it could not be claimed
there had been any discrimination as far as he was concerned.
114 Ford V. Brooklyn Gaslight refusal, is a payment under com-
Cc, 3 Hun 621. pulsion; and if the charge is ex-
115 Fowler v. Chartered Gas Co., cessive, the excess may be recovered
17 Gas J. 908. back without tendering the amount
A few cases hold Hint unless the really due. Westlake v. St. Louis,
company's charter or a statute give 77 Mo. 47.
it the right to insist upon a depc^it, HR Bennett v. Eastchester Gas-
the company cannot demand it. light Co., 40 N. Y. App. Div. 109;
Spratt V. South Metropolitan Gas 57 N. Y. St. Rep. 847.
Co., 7 Gas J. 663. The payment of a n^ Bennett v. Eastchester Gas-
water license under a threat to turn light Co., supra.
olf the water in case of .continued
GAS COMPANY AXD COXSUMER. 603
Tlie court bnished aside these contentions as without merit;
for the reason that the classification of customers was arbitrary
and imjust. '' Under this nile," said the Court, " appellant
[the gas company] did not profess to have any regard or con-
sideration for the amount consumed for light. If any patron,
using gas for heating his dwelling, also employed one jet about
his dwelling whereby a small amount of natural gas was con-
sumed each month for light, he was amenable and subject to the
rule in like manner as the fuel consumer Avould be who used
many jets about his premises for illuminating purposes. The
amount consumed for light does not seem to be a feature of
any importance within the meaning of the rule in question.
Such a regulation, under the facts in this case wiien tested by
the principle affirmed and sustained by the authorities, must
certainly be held unreasonable, arbitrary and unjust." ^^^ So
a gas company incorporated to furnish heat and light cannot
prescribe one price for gas used for heating and another for
gas used for lighting, and that the price for gas for lighting
should be measured by what the consumer would have to pay
for a substitute, if gas could not be had.^^''
§543. Classification of customers. — Rates.
The Indiana Supreme Court seems to consider that a gae
company has the right to classify its customers, and base its
charges upon the classification, as indicated in the following
118 Richmond Natural Gas Co. v. agreed price of gas for fuel only.
Clawson, 155 Ind. 659; 58 N. E. ii9 Bailey v. Fayette Fuel Gas
Rep. 1049; 51 L. R. A. 744. Co., 193 Pa. St. 175; 44 Atl. Rep.
The court distinguishes this case 251 ; 44 \Y. N. C. 505.
from Philadelphia Co. v. Park, 138 A statute forbidding a higher rate
Pa. St. 346 ; 22 Atl. Rep. 86, by for water for " domestic purposes "
saying that it was a case where die than tliat specified for the use of
gas company had agreed to furnish water for a building, includes all
the defendant with gas for fuel only uses which contribute to the health,
at a low price, but the company comfort, and convenience of a fam-
having taken gas from the mains ily in the enjoyment of their dwell-
for lighting purposes, it was liable ing as a home. Crosbey v. Mont-
to pay the market value for the gomery, 108 Ala. 498; 18 So. Rep.
amount of gas used in lighting, 723.
which was much higher than the
604 OIL AND GAS.
langLiago: " Counsel for the appellee concedes, and properly
so, we think, that companies engaged in furnishing gas and
water, etc., to the publio may make classification in respect to
their patrons or consumers and adopt reasonable rules and
regulations- for the control of such classes, but that the classifica-
tion must be reasonable and impartial, and not arbitrary or
unjust, of a discriminating character ; but that due regard must
be had to the rights of the citizens of the town or city depending
upon such companies for their supply of water or gas, as the
case may be, and that all occupying similar or like positions
must be treated impartially." ^"^ In the case from which this
quotation is made, the company had one rate for the manufac-
turer using its naturiil gas, and another for his residence and
residences in general. But this rule was not drawn in question,
and of course not passed up<m. Whether or not such a rule is
valid is not yet decided so far as the author knows; but it is
difficult to see why, in accordance with the commercial practice
of the day, a large consumer should not receive gas at a lower
rate than a smaller one, all other things being equal. ^"^
§544. Recovering back overcharges.
A consumer who pays an overcharge or illegal bill does not
necessarily voluntarily pay it. In a measure he is under com-
pulsion ; for if he do not pay, his gas will be cut off, and his
premises left without means of lighting. The gas company
cannot claim successfully that the payment was voluntarily
made, and thus retain the money ; for it is public duty it was
bound to perform at a lower price. The excess, therefore, paid
over the amount of the legal rate may be recovered back, under
the theory that it was a payment under compulsion.^"" In the
120 Richmond Natural Gas Co. v. 122 Pingree v. Mutual Gas Co.,
Clawson, 155 Ind. 659; 58 N. E. 107 Mich. 156; 65 X. W. Rep. 6;
Rep. 1049; 51 L. R. A. 744. Penn. Iron Co. v. Lancaster, 17
121 See St. Louis Brewing Ass'n Lane. Law Rev. 161 (must pay un-
'•. St. Louis (]\ro.), 37 S. \Y. Rep. der protest); Indiana, etc., Co. v.
525; Sheward v. Citizens' Water Anthony. 26 Ind. App. 307; 58 N.
Co.. 90 Cal. 635; 27 Pac. Rep. 439. E. Rep. 868.
See State v. Goswell (Wis.), 93 N.
W. Rep. 542.
GAS COMPANY AND CONSUMER. 605
case just, cited first below an ordinance prescribed tlie rate, and
a recovery back of the excess was allowed, although such or-
dinance did not in terms confer a right of action to recover such
excess. In this case the consumer paid the bill in ignorance
of the legal rate. The ordinance provided that the legal rate
should be the average rate in five certain cities, and it was held
that the payment was not voluntary, though the consumer was
negligent in not ascertaining such average rate.^"^
§545. Collection of rents. — Action.
A gas company may provide that if its bill for rent is not
paid within so many days, an additional amount will be exacted,
— as if not within ten days, five per cent, will be added ; but
a provision also providing that if the bill is not paid within
two months, the attachment will be cut oif and not renewed
until the rent due, including all expenses of cutting and turning
on, and the rent, in case of a water company, for half a year be
not paid, is void.^^* The gas company may maintain assumpsit
to collect bills for gas furnished ;^'^ and if furnished to a part-
nership, although the premises are owned by only one of the
partners, all are liable.^**' A surety for gas furnished is liable
with the consumer, but not for a tenant succeeding to the person
for whom he became responsible.^'^ Where a receiver of the
]n"ofits of a partnership agreed in writing, with the consent of
the partners, to pay a back bill then due within six months,
123 In England it is held that a City Gas, etc., Co. v. Gaines, 20 Ky.
private consumer cannot recover an L. Repr. 1464; 49 S. W. Rep. 462.
overcharge made contrary to a stat- i^-i Dayton v. Qixigley, 29 N. J.
ute providing that under certain Eq. 77.
circumstances the price of gas sup- 125 London Gaslight Co. v. Nich-
plied a municipality by a gas com- oils, 2 Car. and P. 365; Preston v.
pany should be reduced, and em- Hayton & Roby Gas Co., 25 Gas J.
powering the corporation to- check 889; Birmingham, etc., Co. v. Rat-
the annual audit of the company's cliffe L. R. 6 Ex. 224 ; Hiej'onymus
accounts to ascertain if it is com- v. Bienville Water Supply Co., 131
plying with the statute. Johnston Ala. 447; 31 So. Rep. 31.
V. Consumer's Gas Co., 78 Law T. 126 London Gaslight Co. v. Nich-
270; [1898] A. C. 447; 67 L. J. P. oils, sttpra.
C. 33. 127 Manhattan Gaslight Co. v.
An unlawful charge for a meter Ely, 39 Barb. 174.
may be recovered back. Capitol
60G OIL AND GAS.
and also undertook to pay future bills until further notice.; it
was held that he was liable for the past bills, the consideration
being sufficient to enable the gas company to maintain assump-
sit'''
^546. Collection of rents by distress.
In some instances early statutes allowed gas companies to
collect rents by distress. But distress does not lie when that
rule prevails, for a gas stove let for hire to the consumer by
the company.^"^ And wiiere a gas company was authorized by
statutes to levy all sums for gas by distress, after one of its
customers had filed a petition in bankruptcy, it was held that
the company could not then collect the gas by distress.^"'* This
case was distineiiished from an earlier case, in which a statute
authorized a company to collect rent and charge for gas " by
the same means as landlords are by law empowered to recover
rent in a r rear," where the court held that the rent or charges
in arrear before the petition in bankruptcy was filed could be
collected by distress of the goods of the bankrupt in the trustee's
hands. *^^° Subsequently, however, under a similar statute, the
right to relief by distress was denied.^^^
128 Hiberian Gaslight Co. v. Par- pany did not light the lanterns to
ry, L. R. 4 Ir. 453. the satisfaction of the defendant or
If a lessor agree to pay " all its surveyor and did not perform
water rates imposed or assessed the other covenants of the contract,
upon the premises or on the lessor — the performance of all the several
or' lessees in respect thereof," he stipulations of the gas company not
is not bound to pay for water sup- being a condition precedent to the
plied to the lessees for trade pur- right to receive the money. London
poses. In re Floyd [1897], 1 Ch. Gaslight Co. v. Vestry of Chelsea, 8
633; 66 L. J. Ch. 350; 76 L. T. C. B. (N. S.) 215; 9 Gas J. 292.
251; 45 W. R. 435. 129 Gaslight and Coke Co. v. Har-
Where a gas company covenanted dy, 17 Q. B. Div. 619.
to supply gaslight for each lantern iso Ex parte Hill, 6 Ch. Div. 63.
of a parish, to the satisfaction of *i3o£fa? parte Birmingham, etc.,
the defendant or its surveyorf in a Co., L. R. 11 Eq. 615 (and see ex
certain manner and form set out parte Birmingham, etc., Co., L. R.
in the contract, it was held that the 11 Eq. 204).
parish could not refuse to pay for i3i Ex parte Harrison, 13 Q. B.
the gas on the ground that the com- Div. 753.
GAS eOMPA^^Y AND CONSUMER.
607
§547. Shutting off gas for failure to pay.
If a consumer fails or refuses to comply with the rules or
regulations of a gas company, such company, after bringing his
attention to the rule violated, may shut off his supply of gas
if he continues to violate it after notice given.^^" Thus a rule
that a consumer's supply of gas may be shut off if he becomes
in arrears and fails to pay upon demand made, is valid, and in
such an instance, after notice given, the company may shut off
his gas supply.^^^ And if a consumer has practically aban-
doned the use of gas, by adopting other methods of lighting, the
company may cut off his supply of gas.^^* But a company
cannot shut off a tenant's or landowner's gas because a former
occupant or owner of the building has failed or refused to pay
proper gas bills. ^^^ This rule, however, may be changed by a
statute, or by a contract, or by an ordinance where the munici-
pality furnishes gas to private consumers. Thus it was held
i32Shiras v. Ewing. 48 Kan. 170;
29 Pac. Rep. 320; Commonwealth v.
Philadelphia, 132 Pa. St. 288; 19
Atl. Rep. 136 (as a rule requiring
bills to be paid within ten days af-
ter presented, or the gas would be
shut off ) .
i33Tlie right to shut off the gas
exists in such an instance without
such a rule. People v. Manhattan
Gaslight Co., 45 Barb. 13G; 30 How
Pr. 87; 1 Abb. Pi-. (X. S.) 404;
Smith V. Scranton Gas and Water
Co., .5 Lack Leg. X. 235; Baltimore
Gaslight Co. v. Colliday. 25 Md.
1; Appeal of Brum (Pa.). 12 Atl.
Rep. 855; Morey v. Metropolitan
Gaslight Co., 38 X. Y. Super. 185;
Bellaire Goblet Co. v. Findlay. 3
Ohio C. Dec. 205; 5 Ohio Clr. Ct.
418; McDaniel v. Springfield W. W.
Co.. 48 Mo. App. 273; Mackin v.
Portland Gas Co., 38 Ore. 120; 61
Pac. Rep. 134: 62 Pac. Rep. 20; 49
L. R. A. 596: Tacoma Hotel Co. v.
Tacoma Light and Water Co.. 3
Wash. 316; 28 Pac. Rep. 516; 14
L. R. A. 669 ; Pearson v. Phcenix
Gas Co., 12 Gas J. 69; Jenkins v.
Columbia, etc., Co., 13 Wash. 502;
43 Pac. Rep. 328.
134 Adams Express Co. v. Cincin-
nati Gaslight Co., 10 Ohio Dec. 389;
21 Wkly. Law Bull. 18. See Smith
V. Capital Gas Co., 132 Cal. 209;
64 Pac. Rep. 258.
135 Sheffield W. W. Co. v. Wilkin-
son, L. R. 4 C. P. Div. 410; People
V. Manhattan Gaslight Co., supra;
Jlerrimac River Savings Bank v.
Lowell. 152 Mass. 556; 26 X. E.
Rep. 97 ; Xew Orleans Gaslight Co.
V. Paulding. 12 Rob. (La.) 378;
Dayton v. Quigley. 37 X. J. Eq. 77;
Gaslight and Coke Co. v. Mead, 45
L. J. M. C. 71; Brass v. Rathbone,
8 App. Div. X. Y. 78; 40 X. Y.
Supp. 466: affirmed 153 X. Y. 435;
47 X. E. Rep. 905; Turner v. Re-
vere Water Co.. 171 Mass. 329; 50
X. E. Rep. 634 ; Morey v. Metropol-
itan Gas Co., 6 Jones & S. (X. Y.)
185.
608 OIL AND GAS.
that the city of Philadelphia, when it furnished gas, could
adopt an ordinance and require payment of all arrear gas bills of
former tenants of the premises before supplying present ten-
ants/"*'' A statute may make the charge for gas supplied a
lien on the land, in which event the purchaser of the land will
be bound to pay up all arrearage bills, even though such pur-
chaser obtain title through a sheriff's sale/^^ ' In such an in-
stance a statute is necessary to make the rent a lien,"^ unless
a contract the equivalent of a mortgage be given/^^ But where
a statute authorized a company " to stop the gas from entering
the premises, service pipes or lamps of any " person refusing
to pay for gas supplied, the oonipany was held empowered to
cut off the gas supplied to one set. of premises of a consumer
for default made by him in respect, to another set of pi-emises;
it being deemed that the lia|>ility attached to the consumer and
not to the premises."" A receiver appointed by court, in behalf
of the bondholders and eariying on the business, is not entitled
to gas, under a statute authorizing a company to turn off the
gas if the owner of the premises does not pay, without paying
the arrears of the company for wdiich he was appointed re-
ceiver; but even here there may be exceptions. ^*^ But a con-
tract to supply gas, and permitting the company to shut off
the supply if bills be not paid as to any premises of the con-
sumer, cannot be given a retroactive effect by allowing the coni-
pany to shut off gas fro'm the p'remises because of delinquent
gas bills incurred for gas furnished at a house from which the
consumer had moved before entering into such special con-
tract.^*' Nor can the company shut off the gas from all the
136 Commonwealth v. Philadel- Cas. 589; 81 Law T. (N. S.) 274;
phia. 132 Pa. St. 288; 19 Atl. Rep. Montreal Gas Co. v. Cadieux, 11
136; 4G Lef^. Int. 210. Can. Q. B. 93.
137 Appeal of Brumm (Pa.), 12 i-*! Patterson v. Gaslight and
Atl. Rep. 855. Coke Co. [1896], 2 Ch. 476; 65 L.
138 Turner v. Revere Water Co., J. Ch. (N. S.) 709; 74 L. T. Rep.
171 :\Tass. 329; 50 N. E. Rep. 634. 640; In re Marriage, etc. [1896], 2
13!) St. Joseph Hydraulic Cfo. v. Ch. 663; Gosling v. Gaskell, [1897]
Wilson, 133 Ind. 465; 33 N. E. Rep. A. C. 575.
113. 142 Lloyd V. Washington Gaslight
140 Montreal Gas Co. v. Cadienx, Co., 1 Mackey 331.
68 L. J. P. C. 126; [1889] App.
GAS COMPANY AXD COXSUMEK. 609
consumers of several houses where he holds a separate contract
for the supplying of each house.^*^ But where a consumer
failed to pay a bill for the house in which he resided, and he
then moved into another house where the company supplied
him with gas for a while and then discontinued it, it was held
that he could not compel it to continue to furnish him with gas
until he had paid his old bills. ^** A company, however, eamiot
enforce the payment of disputed bills by shutting off the supply
of gas ; and if it attempted to do so, it may be enjoined ;^*'' espe-
cially after it has received payment for a subsequent and undis-
puted installment."" A gas company is not justified in shut-
ting off gas furnished free to a person who is wasteful in its
use; but the court will regulate the supply. As where a con-
sumer furnished free gas used 300,000 cubic feet in a year,
while the largest consumer similarly situated used not over
64,000 during the same year, the court limited the supply to
150,000 cubic feet.^*" And in an instance where a munici-
pality was to be furnished gas free for all municipal purposes
for the privilege of laying gas pipes in its streets, the court
refused to enjoin an excessive and wasteful use, remitting the
company to its action at law."^ A promise by a new tenant to
pay all gas bills of the former tenant unpaid is without consid '
eration, even thongh the gas company refused to furnish him
gas without he agreed to its demand; and, therefore, the com-
pany cannot cut off his supply for a neglect to keep his contract
in full.^*'' A contract to supply natural gas so long as the
143 Baltimore C4aslight Co. v. Col- tra, Penn. Iron Co. v. Lancaster, 17
liday, 25 Md. 1. Lane. Law Rev. 161.
144 Mackin v. Portland Natural i46 Wood v. Auburn, 87 Me. 287 ;
Gas Co.. 38 Ore. 120; 61 Pac. Rep. .32 Atl. Rep. 906.
1.34; 49 L. R. A. .596 (rehearing i47 Graves v. Key City Gas Co..
denied, 62 Pac. Rep. 20). 93 Iowa 470; 61 X. W. Rep. 937;
145 Bienville Water, etc.. Co. v. Graves v. Key City Gas Co., 83
Mobile, 112 Ala. 260; 20 So. Rep. Iowa 714; 50 N. W. Rep. 283.
742; 33 L. R. A. 59; Penny v. Ros- i4s Saltsburg Gas Co. v. Salts-
endale, etc., Co., 14 Gas J. 927; burg, 138 Pa. St. 250; 20 Atl. Rep.
Sickles V. Manhattan Gaslight Co., 844; 10 L. R. A. 193.
66 How. Pr. 314 (as where there i49 New Orleans Gaslight Co. v.
was a dispiite over the correctness Paulding, 12 Rob. (La.) 378.
of the meter measurement). Con-
610 OIL AND GAS.
supply does not fail, will authorize the company to cut off the
supply when that contingency happens ; and it cannot be en-
joined from doing so.^^° An agreement that if the gas rent be
not paid, the company may shut off the supply and take posses-
sion of the machinery of the mill furnished and the fixtures
until payment is made gives the company no lien on the land,
but only a chattel mortgage on the machinery and fixtures.^"^
A statute giving a municipality a lien on the premises does not
prevent it passing an ordinance providing that the gas may be
cut off if past bills are not paid/^" And it may be remarked in
this connection that a municipality has the same power to
enforce payment of arrearages as a private gas company has/^^
But the city cannot cut off a consumer's water supply for a
failure to comply with the ordinance of the board of health
respecting plumbing, in th^ absence of any regulation authoriz-
ing such action. ^^* The consumer cannot prevent the company
cutting off the gas on the ground that he is solvent and able to
pay the bills ; ^^^ although insolvency is an additional justifica-
tion in the company cutting off the gas supply/^' A landlord
cannot prevent the company shutting off the gas from his tenant
who is in arrears, or who has disobeyed the rules of the com-
pany with respect to w^aste ; for the injury is to the tenant ; and
he being in default, he could not treat the action of the company
150 Thompson Glass Co. v. Fay- 152 Altoona v. Shellenberger, 6 Pa.
ette Fuel Co.. 137 Pa. St. 317; 21 Dist. Rep. 544.
Atl. Pvep. 93; Black Lick v. Salts- isa Tacoma Hotel Co. v. Tacoma
burg, 139 Pa. St. 448; 21 Atl. Rep. Light and Water Co., 3 Wash. St.
432. 316; 28 Pac. Rep. 516; Bellaire
If gas be illegally cut off. the Goblet Co. v. Findlay, 3 Ohio C. D.
company cannot make a charge for 205; 5 Ohio Cir. Ct. 418; Penn.
turning it on again. Nor, as has Iron Co. v. Lancaster, 17 Lane. L.
been held, if properly cut off. Am- Rev. 101.
erican W. W. Co. v. State, 46 Neb. is* -Johnson v. Belmar. 58 N. J.
194; 64 N. W. Rep. 711. Eq. 354; 44 Atl. Rep. 166.
A trustee in bankruptcy is not iss Bellaire Goblet Co. v. Findlay.
liable for arrears of gas bills, where 3 Ohio C. D. 205 ; 5 Ohio Cir. Ct.
he continues to occupy the premises. 418.
In re Flack [19001. 2 Q. B. 32. i^t People v. Manhattan Gaslight
151 St. Joseph Hydraulic Co. v. Co., 45 Barb. 136.
Wilson. 133 Ind. 405; 33 N. E. Rep.
113.
GAS COMPANY AND CONSUMER. 611
as an eviction or as a reason for vacating the premises. ^^^
Where the plaintiff removed from the building the day the
agent of the gas company took the statement of his meter, but
he did not notify the company of his removal, and five days
thereafter his wife notified persons taking the meter statement
to cut off the gas and take out the meter, and the wife testified
that no gas was burned after this notice was given, it was held
that the question whether the company was justified in refusing
the plaintiff a supply of gas at his newly acquired residence
because of his indebtedness for gas furnished between the time
the employe took out the meter and the time the plaintiff noti-
fied the company of his removal was a question for the jury,"''
An agreement between the company and a consumer, separate
and distinct from the contract for a water supply, providing
that the rent shall be p'aid in advance, the company's recovery
by suit of an installment for a particular period will not prevent
it from subsequently cutting off the supply of water, during
such period, for non-payment of the rent, the judginent being
unsatisfied.^*'^ The conclusion of the gas company that a con-
sumer is in arrears does not establish its right to cut off the gas
for owners ; but the fact of arrears is a question of fact, to be
determined from the evidence. ^'"'^
158 Brass v. Rathbone, 153 N. Y. and the bills thereafter falling due,
435; 47 N. E. Rep. 905, affimning no demand being made on the wife
40 N. Y. Supp. 466; 8 App. Div. 78. but on the husb-nd, who failed to
In this case it was also held that pay, it was held that the wife could
the company had not lost its right not enjoin the company from turn-
to cut off the supply because other ing off the water. Smith v. Scran-
consumers had violated the statute ton Gas and Water Co., 5 Lack.
in the same particular. Leg. N. 235.
Where the rules of the company i^o Bennett v. Westchester Gas-
required the owner or his agent to light Co., 40 App. Div. 169; 57 N.
make the application in his own Y. Supp. 847.
handwriting, and if made by the i^i Hiei'onymus v. Bienville Wa-
tenant it must be made with the ter Supply Co.. 131 Ala. 447; 31
written consent of such owner or So. Rep. 31. See Montreal Gas Co.
agent, and the owner made the v. Cadieux. etc., 11 Can. Q. B. 93.
proper application, and after he had i62Morey v. Metropolitan Gas-
received water awhile, he transferred light Co., 6 Jones & S. (N. Y. ) 185.
the premises to his wife, of which A water company may shut off
the company had no knowledge; the supply of a city in arrears, even
612 OIL AND GAS.
g548. Injunction to prevent cutting off gas supply. — Rates.
x\n injunction lies to prevent a gas company cutting off
the supply of gas on the ground that a consumer will not pay
an illegal rate, or a disputed bill."^ Wliere a gas company
entered into an agreement to supply natural gas so long as the
gas was obtainable, it Avas held that an injunction lay to
prevent its being cut off, where the result would be that the
plaintiff would not be able to run its electric light company
and keep its contracts to supply light with its customers.^*"*
And where, under a similar contract, the gas had been cut off,
a preliminary mandatory injunction to restore it was gi'anted.^"*
Under such a contract, if the supply fail, the company may
discontinue its efforts to furnish a supply.^^*' A preliminary
injunction restricting the shutting off of gas contracted to be
furnished will be permittea to stand until final hearing, where
no material injury can arise from preserving the status quo.^^^
And although the right to gas rests upon a special contract be-
tween the consumer and the company, yet an injunction will
be granted to compel the company to continue the supply of
gas pursuant to such contract's terms, ^"'^ especially where the
though it leave such city without Smith v. London Gas Co., 7 Grant
fire 2^1'otection ; and an injunction (U. C.) 112.
will not lie to prevent it. Penn. i64 Xenia Real Estate Co. v.
Iron Co. V. Lancaster. 17 Lane. Law Macy. 147 Ind. 568; 47 N. E. Rep.
Rev. 161. 147.
163 Cromwell v. Stephens. 2 Daly iss Whitman v. Fayette Fuel Gas
15; Bienville Water Supply Co. v. Co., 139 Pa. St. 492; 20 Atl. Rep.
Mobile, 112 Ala. 260; 20 So. Rep. 1062.
742; 33 L. R. A. 59; Penn. Iron igg Blacklick v. Saltsburg. 139
Co. V. Lancaster, 17 Lane. Law Pa. St. 448; 21 Atl. Rep. 432.
Rev. 161; Levy v. Water Works i67 Corbet v. Oil City Fuel Sup-
Co., 38 La. Ann. 25; State v. Le\-y, ply Co., 5 Pa. Super. Ct. 19; 40 W.
36 La. Ann. 941; Wilkes-Barre Gas N. C. 480. See Des Moines W. W.
Co. v. Turner, 7 Kulp 399; Sickles Co. v. Des Moines, 95 Iowa 348;
v. Manhattan Gaslight Co.. 64 How 64 N. W. Rep. 269; United States,
Pr. 33; 66 How Pr. 304. 314; etc., Co. v. Metropolitan Club. 6
Graves v. Key City Gas <?o.. 83 App. D. C. 536.
Iowa 714; 50 N. W. Rep. 283; Se- iss Corbet v. Oil City Fuel Co.,
wickley v. Ohio Valley Gas Co., 154 supra : Graves v. Key City Gas Co.,
Pa. St. 539; 25 Atl. Rep. 868; 83 Iowa 714; .50 N. W. Rep. 283;
93 Iowa 470; 61 N. W. Rep. 937.
GAS COMPANY AND CONSUMER. 613
consumer would suffer great damages, or not be able to carry
out his contracts with his customers.^""
§549. Consumer's right to discontinue use of gas.
The general rule is that a customer within a municipality
is required to pay for only as much gas as he consumes or as
passes through his meter ; and that he may discontinue the
supply at any time.^^''. Usually ordinances or statutes extend
to such consumer the right to discontinue the gas at any time,
even though he has paid for it in advance. But such ordi-
nances or statutes, as an almost universal rule, do not prohibit
a consumer entering into a contract with a company for a supply
of gas for a specified period of time, and to bind himself to take
the gas for that period of time and pay for it.^"^ This is
particularly true of municipalities which usually do and are
allowed to make special contracts, varying in price from that of
the private consumer. Wliere such contracts are entered into
they cannot be rescinded, if they are otherwise valid. But, of
course, a contract to pay more than the ordinance or statute rate
would not be valid, unless the consumer was one the company
was under no legal obligation to furnish gas. If a company
does not keep its special contract by failing to furnish a supply
of gas, the consumer may at once serve notice upon it that he
will no longer take the gas, and he will not therefore be bound
to pay for gas, even though it be tendered and the contract pro-
vides that it should continue until either party should give the
other thirty or other days' notice of their desire for a discontinu-
ance.^'" Such a contract cannot be construed as running from
169 Xenia Real Estate Co. v. one of the apartments. Hersey v.
Macy, 147 Incl. 568; 47 N. E. Rep. White, 9 T. L. R. 335.
147. 1^0 Nebraska City v. Nebraska
Where a larger mansion was di- City, etc., Co., 9 Neb. 339; 2 N. W.
vided into separate apartments, and Rep. 870.
the mansion was snpplied through i^i Inipeiial Gas Co. v. Chauntler,
a large meter, and each apartment 2 Gas J. 362.
supplied with a small subsidiary i"2 Hieronymus v. Bienville Wa-
meter, placed and maintained by ter Supply Co., 131 Ala. 447; 31 So.
the landlord, an injunction was Rep. 31.
ganted to prevent him cutting off
614 OIL AND C4AS.
year to year, after the iirst year, or as committing the company
to snpply gas during the whole of a subsequent year merely by
failing to act on the consumer's default at the commencemient
of that year/'" If a customer under a special contract refuses
to take the gas provided for in the contract, the company may
recover damages for breach of the contract, but it can recover
only where the agreement is to take gas for a definite time, and
then only such damages as it has sustained, and not the full con-
tract p'rice.^'* A failure to use gas while waiting for a tenant,
will not entitle the company to discontinue it and recover
liquidated damages under a clause in the contract that if the
consumer discontinues the gas because the consumer is in arrears
or fails to comply with the rules of the company, or is through
the " fault " of the consumer prevented from supplying the gas
according to the provisionsrof the contract, a specified amount
shall " forthwith become due and payable " to the company as
stipulated damages/'^ Where the agreement was that the con-
sumer should declare an average minimum daily of the amount
of gas which it would take annually, and would pay for it,
though it took less, and that all gas it used in any month should
be paid for monthly, it was held that the agreement required
payment only at the end of the year for the part of the minimuin
amount not taken/'^° An agreement provided that a certain
company should sink a gas well and supply certain persons with
gas and all others who might desire it, and that it was to become
binding as soon as twenty persons agi'eed to become consumers
of gas ; it was held that the contract became binding as soon as
twenty prospective consumers had signed it, and that no one of
the subscribers could withdraw his name from the agreement
without the consent of all the twenty subscribers and of the per-
son Avho was to furnish the ffas/'^ Where the owner of a well
^■73 Hieronynnis v. BienvilU' Wa- v. Breneman, 46 N. Y. 8upp. 916;
ter Supply Co.. supra. >. 21 N. Y. Misc. 41.
1T4 Qvieen City, etc., Co. v. Gibson i"''> Conomangh Gas Co. v. Jack-
House Co., 4 Oliio N. P. 119; 6 son Farm Gas Co., 186 Pa. St. 443;
Ohio Dec. 148. 40 Atl. Rep. 1000.
175 United Electric Light, etc., Co. itt Current v. Fulton, 10 Ind.
App. 617; 38 K E. Rep. 419.
GAS COMPA^'Y AXD COXSUMEK. 615
that was being drilled agreed with a gas company to i>ay for gas
it should furnish a well-driller to run his drilling apparatus, and
such owner had a contract with the well-driller to" furnish him
all the gas necessary to run such drilling apparatus, and such
well-driller knew the gas was coming through pipes from the gas
company ; it was held that he was liable to pay for the gas he
consumed, although he had never agreed to pay for it/^* The
consumer cannot cut off the supply of gas at the stop cock located
in the street or sidewalk until after reasonable notice given to
the company to shut it off, followed by neglect to do so ; and if a
rival company undertake to cut it off, even though the consumer
may desire to make a change to it, an injunction will be grant-
ed to prevent it interfering with the stop cocks and service
pij>es, until after reasonable notice to the old company be given,
and a failure on its part to cut off the connection.^^® A con-
sumer who desires to discontinue the use of gas and escape lia-
bility for it, where it is furnished by the month or year, or the
like, should notify the gas company, in order that they may shut
off his sup'ply,^^" but, of course, if he pays only for the amount
registered bv the meter, there is little reason to ffive such a
notice, unless he desires it cut off from his premises. Arid if
he is bound to take the gas, whether he use it or not, the gas
company is not entitled to an injunction to compel him to use it,
its action at law for damages giving sufficient compensation/^^
§550. Ownership of supply pipe.
When a supply pipe - — a pipe running from the company's
gas mains in the street to the meter in the house — is put down
by the gas company, as often happens, it belongs to the owner of
the real estate, and the company may not remove it upon the con-
ies chamberlain V. Summit Gas N. E. Rep. 545; reversing 2 Ohio
Co.. 3 Penn. (Pa.) 261. Cir. Ct. Pvep. 286.
179 Pennsylvania Gas Co. v. War- If a consumer owns two sets or
ren, etc., Co., 3 Pa. Dist. Rep. 67. lines of pipes and two meters, lie
ISO Pennsylvania Gas Co. v. War- may discontinue one and use the
ner, etc., Co.. 3 Pa. Dist, Rep. 67. other. He may discontinue the use
181 Steinau v. Cincinnati Gaslight of illuminating gas entirely, and
and Coke Co., 48 Ohio St. 324; 27 use fuel gas. State v. New Orleans,
etc., Co. (La.), 32 So. Rep. 179.
616
OIL AI^D GAS.
sumer or owner of the premises ceasing to be a customer ; and
this was hekl true even when the company had a steady rnle in
force when it put down the pipe that " the connecting pipes and
works from the street mains to the consumer's premises shall at
all times be under the control and management of the corpora-
tion, and shall be deemed to belong to them." ^^" This was the
case of a water company which put down a lead supply pipe,
which poisoned the Avater ; and it was held that inasmuch as the
supply pipe belonged to the customer the company was not
liable.'^'
i82Milne3 v. Hudersfield, 11 App.
Cas. 511; 56 L. J. Q. B. 1 ; 55 L. T.
617; 34 W. R. 761; 50 J. P. 676;
affirming L. R. 12 Q. B. Div. 443;
which affirmed L. R. 10 Q. B. Div.
124.
183 A rule of the gas company re-
serving to it the right to make all
taps of or connections with its
mains is a reasonable one. Poca-
tello Water Co. v. Stand ley
(Idaho), 61 Pac. Rep. 518.
Only the company owning the
supply pipe can use it. Pough-
keepsie Gas Co. v. Citizens' Gas Co.,
20 Hun 214.
CHAPTER XXVI.'
METERS AND MIXERS.
§551. Definitions.
§552. Who must furnisli.
§553. Control of meter.
§554. Unreasonable requirements.
§555. Inspection of iiieters by company.
§556. Official inspection and tests.
§557. Officially tested meters conclusive.
§558. Measurements of quantity of gas used.
§559. Delivery of gas.
§560. Rules and regulations concerning.
§561. Extra charges for meters and mixers. — Government tax.
§562. Requiring use of a certain quantity of gas per month or pay a
meter rent.
§563. Discrimination in use of meter.
§564. Removal of meters.
§551. Definitions.
A meter (often spelled metre) may be defined as an instru-
ment, apparatus or machine for measuring fluids, gases, air
electrical currents, etc., and recording the results obtained. A
dry meter is a gas meter not containing fluid as an essential
part of it.^ A water meter is one in which water is kept through
which the gas passes. A gas mixer is a cylindrical instrument
by which air is mixed Avith natural gas as it enters the burner,
thereby securing greater combustion and producing a higher
degree of heat with the same quantity of gas.
§552. Who must furnish.
It is almost the universal practice of gas companies to furnish
gas meters whenever they are used ; but this is a matter subject
to local usage. Frequently statutes or ordinances require them,
1 Standard Dictionary, " Meter."
617
618
on. AND GAS.
to do SO, free of charge. Probably the rule ^vith respect to gas
mixers is not so general as that with respect to gas meters, and
patrons frequently furnish their own. Where an ordinance or
statute requires them to furnish meters, a company cannot make
an extra charge for them; and this occurs where a company is
compelled to furnish gas at so much a thousand feet, nothing
being said about who shall furnish the meter, it being considered
the duty of the company to furnish and attach it to the pipes
in a proper manner, in order to ascertain the amount of gas
furnished.^ But the company is not required to furnish more
than one meter for a house — not one for each floor — unless the
house is occupied by different tenants who have independent
service pipes. When that is the case, each apartment is re-
garded as an independent house.^ And if the company have the
right to require a consum^fr to furnish a meter before it will
supply him with gas, it has no right to insist that he shall furnish
a meter when it does not make that requirement of others ; for
all must be treated alike. Xor has it the right to require a
customer to furnisli expensive meters when a meter costing less
will correctly measure the gas.*
2 Louisville Gas Co. v. Dulaney,
100 Ky. 405; 38 S. W. Rep. 703; 36
L. R. A. 125 ; 6 Am. and Eng. Corp.
Cas. (N. S.) 241; Albert v. Davis,
49 Neb. 579; 68 N. W. Rep. 945;
Capital, etc., Co. v. Gaines, 20 Ky.
L. Rep. 1464; 49 S. W. Rep. 462;
Sheffield W. W. Co. v. Carter, L. R.
8 Q. B. 632. Contra, Sheffield W.
W. Co. V. Bingham, L. R. 25 Ch.
Div. 443; 48 L. T. 604; 52 L. J.
Ch. 624. See State v. Sedalia Gas
Co., 34 Mo. App. 501 ; and Ladd v.
Boston, 170 Mass. 332; 49 N. E.
Rep. 627; 40 L. R. A. 171.
3 Ferguson v. Metropolitan Gas
Co., 37 How. Pr. 189; Young>\\ Bas-
ton, 104 Mass. 95.
The meters in use are a part of
the plant, for the purposses of tax-
ation. Com. V. Lowell Gaslight Co.,
12 Allen 75.
4 State V. Jersey City, 45 N. J.
L. 246; 2 Am. and Eng. Corp. Cas.
233. It is not unreasonable to re-
quire the company to furnish a
meter. Spring Valley W. W. v.
San Francisco, 82 Cal. 286; 22 Pac.
Rep. 910, 1046; 6 L. R. A. 756; 16
Am. St. Rep. 116. Such a statute
is constitutional. Buffalo v. Buffa-
lo Gas Co., 80 N. Y. Supp. 1093;
citing Louisville Gas Co. v. Du-
laney, 100 Ky. 405; 38 S. W. Rep.
703; 36 L. R. A. 125. and State v.
Columbus, etc., Co.. 34 Ohio St.
579; 32 Am. Rep. 390, and also
People V. Budd, 117 N. Y. 1; 22
N. E. Rep. 682; 5 L. R. A. 559; 15
Am. St. Rep. 460; Spring Valley
W. W. Co., 110 U. S. 353; 4 Sup.
Ct. Rep. 48 ; Cotling v. Kansas City,
etc., Co., 183 U. S. 85; 22 Sup. Ct.
Rep. 30; Munn v. Illinois, 94 U. S.
METERS AND MIXERS.
619
§553. Control of meter.
The gas company, where it owns the meter, has the absolute
control of it and the lead pipes used to make connections with
it, subject to the use of it by the patron. If the patron ow^ns it,
the company cannot remove it if he cease using gas, but it can
if it owns the meter. Their remedy is to cut the gas off where
it does not own the meter, before it enters on the patron's prem-
ises, in case of non-user. Where the company own it and place
it in position, attached to the pipes, this is not a bailment of it.
In such an instance the patron or consumer has no right to in-
terfere with it without notice to the company, unless in a case
of emergency to prevent damages. Xor has he any right to
place a governor upon it to regulate the pressure of the gas, or
113, as directly in point in princi-
ple.
The English cases seem to hold
that although a water company is
not bound to furnish a meter, yet
the consumer is also not bound to
furnish one; for he may prove the
amount of water he receives inde-
pendent of meter measurement. " I
do not intend to decide that a
meter is necessary. ... I am
not going to decide that any par-
ticular meter must be used. . . .
All I am going to decide is that
Mr. Brigham must at his own ex-
pense measure the water and re-
cord that measurement, and that
he must give, of course, all facili-
ties to the company to ascertain
that he has measured the water,
and that he has measured it in
some way or other which is an ac-
curate way of taking the measure-
ment." Sheffield W. W. Co. v.
Bingham, 25 Ch. Div. 443. and 446
(36 Gas J. 769); Sheffield W. W.
Co. V. Carter, 8 L. R. Q. B. Div.
632; 51 L. J. M. C. 97; 30 W. R.
889; 46 J. P. .548. See also Levy
V. Water Works Co., 38 La. Ann.
29; Ernest v. Xew Orleans W. W.
Co., 39 La. Ann. 550.
A city charter authorized its
council to legislate for the protec-
tion of the city water works and
the use of water taken from them,
and also as to the means of ascer-
taining the amounts to be paid as
water rates, and the water system
was such that the consumer, at his
own expense, made connections with
the mains. It was held proper for
the council to adopt an ordinance
requiring the consumers, at their
own expense, to provide meters for
measuring the water they took, and
that the ordinance might provide
that only those using supply pipes
over a certain diameter should be
compelled to use meters. State v.
Goswell (Wis.). 93 N. W. Rep.
542; citing Sheffield W. W. Co. v.
Bingham, supra; Red Star S. S. Co.
V. .Jersey City, 45 N. J. L. 246;
Spring Valley W. W. v. San Fran-
cisco, supra ; Sheffield W. W. Co.
V. Carter. L. R. 8 Q. B. Div. 6.32;
51 L. J. M. C. 97; 30 W. R. 889;
46 J. B. 548.
620 OIL AND GAS.
uiDoii the supply pipe leading to the meter, if it belong to the
company ; and if he do, or any one else, the act is such a trespass
as may be enjoined and the removal of the governor be com-
pelled. In such an instance the court will readily interfere by
an injunction ; for as gas is a dangerous article, which if it escape
may produce great injury or damages, the necessity for issuing
an injunction is much more urgent and necessary than in an
ordinary trespass. Even the defense of laches will not prevail
in such an instance. And if a third person has placed the gov-
ernor on the meter, he may be enjoined and compelled to remove
it ; and in such an instance it is not necessary to make the owner
of the premises a party. In such an instance the owner cannot
object to its removal. But the owner of the premises has a right
to put a governor on his pipes after the gas has passed through
the meter; or to attach it to±lie end of his pipe nearest the com-
pany's meter; and perhaps so much of the supply pipe as he
owns and which is on his premises ; and even here the company
have a right to adopt reasonable regulations.^ A consumer,
however, is not relieved from all care of a meter entrusted to his
care ; for he is required to take proper care of it ; and if he
permit it to get out of repair through his neglect of duty he owes
toward it, he may be bound by the result of its measurements,
in case there is a substantial dispute over the amount furnished.''
5 Blondell v. Consolidated Gas is not kept in the meter, the com-
Co.. 89 Md. 732; 43 Atl. Eep. 817; pany will be liable for the dam-
46 L. K. A. 187. The secretary's ages occasioned. Ellis v. London
consent to attach the meter is not Gaslight Co., 32 Gas J. 849.
the company's. De Mattos v. Gib- That the owner of the premises,
son, 4 De G. & J. 276. See Biaen whether he or his tenant uses gas,
Avon Coal Co. v. McCuUoh, 59 Md. has no right to interfere with a
403 ; 43 Am. Rep. 560. meter or mixer without notice to
A rule that the governor shall be the company, see Pennsylvania Gas
connected with the pipe one foot Co. v. Warren Gas Co., 3 Pa. Dist.
from the meter is a reasonable one. Rep. 67.
Foster v. Pliiladelphia Gas Works Where a city infringed a patent
Trustees, 12 Phila. 511. by using disks in its water meters,
6 Preston v. Hayton, etc.. Gas it was required to remove them,
Co., 25 Gas J. 889; Victoria Docks although it took time and trouble
Gas Co. V. Burton, 16 Gas J. 103. to locate and do so. National Me-
If an explosion is occasioned be- ter Co. v. Poughkeepsie, 75 Fed.
cause a sufficient quantity of water Rep. 405.
METERS AXD MIXERS. 621
§554. Unreasonable requirements.
An ordinance required a gas company to furnish natural gas
by meters or through mixers, at the option of the consumer ; but
it was held void for unreasonableness, for the reason that the
company may be able to use other appliances, at less cost to it,
and without injury to the company.^
'555. Inspection of meters by company.
The company has the right to enter on the premises at reason-
able times, upon notice first given of its intention, to inspect
the meter, and especially to ascertain the amomit of gas used.*
In this respect, however, there are mutual rights and obligations
that must be observed. The company has no right to visit the
premises at unseemly hours — perhaps not out of business hours
— except in a case of emergency ; nor to visit them more than
actually necessary, nor to remain on the premises for a lenger
period than is necessary to make the inspection or necessary re-
])airs. Xor can the owner or consumer deny them the right to
make all necessary inspection ; for if he do, the gas company
would be justified in removing the meter and refusing to supply
him wath gas, or cutting off his supply ; or it might bring an
action to compel him to allow an inspection. But wdiere it ap-
peared that the defendant, in an action to compel him to permit
the gas company to inspect a gas meter, was the lessee of the
grounds and cellar floor of the Imilding, the upper floor of wdiich
was occupied by other tenants ; that the gas meter for this upper
floor was in the cellar, having been placed there by the owmer of
tlie premises before the defendant took his lease, in which no
mention was made of the meter ; and it did not a]^pear it would
be impracticable to place the meter on the upper floor, it w^as
held that the company must fail in its action.''
" Toledo V. X. W. Natural Gas s Shepard v. Milwaukee Gaslight
Co., 5 Ohio Cir. Ct. 557 ; 3 Ohio Cir. Co., 6 Wis. 539 ; 70 Am. Dec. 479.
Dec. 273. See Indiana, etc. Gas Co. 9 Wilkcs-Barre Gas Co. v. Turner,
V. State. 158 Ind. 516; 63 N. E. 7 Kulp 399.
Rep. 220; 57 L. R. A. 761.
622 OIL AND GAS.
§556. Official inspection and tests.
In many instances statutes or ordinances require official in-
spection and tests, or insj^ections and tests by state or municipal
authority. Usually these statutes or ordinances provide for
sealing the meter, if found correct, and that a certificate of
approval he furnished. In such an instance mandamus lies to
compel the state or municipal official to make an inspection and
test of a meter placed in proper position.^" A statute providing
that the gas companies of the State should pay the salary of a
State gas inspector was held valid, it not being a tax for the
purpose of general revenue within the meaning of a provision
of the constitution requiring that taxes should be assessed upon
property by a uniform rule, but a charge for a special purpose
growing out of the suj^ervisorv power of the State over their bus-
iness, and was not a tax on property. ^^
§557. Officially tested meters conclusive.
In New Brunswick a meter examined, tested and stamped by
a government official is conclusive in its measurements when a
contest arises over the amount of gas furnished ; but the gas
company has the burden to show that it was examined, tested
and stamped as correct and accurate in its measurements.^'
But in Xew York the consumer may shoAV by reliable testimony
that he did not receive the amount of gas registered by an offi-
cially inspected meter. ^^ For instance, he may show that the
gaslight went out by air passing through the tubes, as affecting
the quantity of gas consumed.^* And where the consumer had
entered into a contract to take the meter measurement as the
measure of the quantity of gas furnished ; it was held that the
consumer would not be bound by the registration of the meter
if it had not been examined and certified to by the official in-
10 7u re McDonald, 16 Misc. (N. is sickles v. Manhattan Gaslight
Y.) 304; 39 N. Y. Siipp. 367. '*" Co., 66 How. Pr. 314; Tarrytown.
11 Cincinnati Gaslight and Coke etc. Gaslight Co. v. Bird, 65 Hun
Co. V. State, 18 Ohio St. 237. 621 ; 19 N. Y. Supp. 988.
12 St. John Gas Co. v. Clarke, 17 i* Tarrytown, etc., Gaslight Co.
N. B. 307. V. Bird, supra.
METEKS AXD MIXEKS. 623
spector/^ Where there is a dispute over the accuracy of the
meter's measurements, an injunction lies to prevent the com-
pany cutting off the gas until the accuracy of the charge can be
determined by a suit at law.^**
§558. Measurements of quantity of gas used.
The correct measurement of gas is a subject of im}X)rtance
both to the gas company and consumer. Usually, if not univer-
sally, in the case of artificial gas, the amount consumed is deter-
mined by a meter. And it may be laid do^vn as a general rule
that the amount registered by a meter is presumed to have been
supplied and to be a correct measurement, unless there be evi-
dence to cast a doubt upon its correctness. Thus where the
question was whether the meters had registered correctly, in an
action to recover back money paid for gas in excess of what was
due, and the evidence showed that they registered correctly at
a level, but registered in favor of the company at a high-water
level, and in favor of the consumer at a low-water level ; and
that since dry meters had been put in, the bills diminished, it
was held that taking into account the fact that the consumers
must take proper care of their meters, and the conflict of the
evidence, the decision must be for the defendant — the gas com-
pany. ^^ So where the action was to recover for gas converted
by the consumer to his own use, and it appeared that in some
way the meter became tilted, and the gas passed through with-
out registry, and the action was to recover the price of the gas
it was estimated had passed through the meter without registry,
and the consumer contended he had used only the amount regis-
tered ; and for this he had paid ; yet the jury found for the
plaintiffs.^* While it is true the meter measurement is prima
facie correct, yet the consumer may show it is incorrect; and
that too, even though a statute provides that such measurement
15 Manhattan Gas Co. v. Flamme, Co., 25 Gas J. 889.
12 N. Y. Weekly Dig. 245. is Victoria Docks Gas Co. v. Bur-
16 Sickles V. Manhattan Gaslight ton, 16 Gas J. 103. See also Hack-
Co., supra. er v. London Gaslight Co., 32 Gas
I'? Preston v. Hayton, etc., Gas J. 781.
624 OIL AND GAS.
shall be taken as prima facie evidence of its correctness/®
Where the action was to recover for gas alleged to have been fur-
nished and not registered because of its having been tampered
with, and it appeared that the defendant had increased the num-
ber of his burners at a certain date, although the gas thereafter
sensibly diminished; and six years thereafter the meter was
tested by the gas inspector and found to be correct, but after-
wards it was discovered that the water in the meter was kept too
low, a simple fact easily discovered ; and a part of the meter
machinery was so arranged tliat it did not register; it was held
that the plaintiff could recover for no gas used before the date ol
the inspection. "° In the case of a wet meter, it seems to be the
duty of the gas company to keep it properly supplied with
water. "^
§559. Delivery of gas. it
When gas has passed through the meter it is delivered to the
consumer ; and the title to it then vests in him. So that if after
that period of time a third person obtains the use of it, the gas
company is not liable for the consumer's loss, and he must pay
for all registered by the meter."'
§560. Rules and regulations concerning.
A gas company has full power to adopt reasonable regulations
and rules concerning meters and their use. And so has a
municipality furnishing gas to private consumers. An order
that all regulators or governors shall be attached to the gas pipes
19 Alliance, etc., Co. v. Taaffe, 27 ond meter of his own, he was fined.
Gas J. 206. In re Gaslight and Coke Co., 57
20 Imperial Gas Co. v. Porter, 5 Gas J. 1196.
Gas J. 372, 403. 22 Chouteau v. St. Louis Gasliglit
21 Hacker v. London Gaslight Co., Co., 47 Mo. App. 326. See Schmeer
'62 Gas J. 781. v. Gaslight Co., 147 N. Y. 529; 42
Where a statute forbade any one N. E. Rep. 202; 70 N. Y. St. Rep.
to lay any pipe to communicate 92; 30 L. R. A. 653; Blondell v.
with the company's pipe without Consolidated Gas Co., 89 ]Md. 732 ;
its consent, under a penalty, and 43 Atl. Rep. 817; 46 L. R. A. 187;
a consumer being dissatisfied with Indiana, etc., Co. v. Anthony, 26
the company's meter, put up a sec- Ind. App. 307; 58 N. E. Rep. 868.
METERS AND MIXERS. 625
or to the meter, unless placed upon a by-pass so as the flow of gas
may be directed through the pipes without passing through the
governor regulator, is a just and reasonable regulation.'""
§561. Extra charges for meters and mixers. — Government tax.
A company cannot make a charge for meter rent, where its
rate is fixed by a statute or an ordinance. Thus where a com-
pany by its charter was authorized to supply customers with
gas, " under reasonable regulations," at a price not to exceed
one dollar and thirty-five cents a thousand cubic feet, it was held
it could not charge a meter rent in addition if less than a certain
quantity was used. The compa:ny Avas bound to furnish the
meter to measure the gas the court said, and could not charge
for such a necessity."* But where neither a statute nor an ordi-
nance, nor the company's charter impose any restriction upon
the company concerning its charges, it may charge small cus-
tomers more than large ones, and such charges are not invalid
because they are called meter rents ; when in fact the charges are
charges up to a certain amount."^ Adding the amount of the
government's tax to the price is a legitimate charge."®
23 Foster v. Philadelphia Gas Buflfalo v. Buffalo Gas Co., 80 N. Y.
Works, 12 Phila. 511; Blondell v. Supp. 1093 ; State v. Columbus, etc.,
Consolidated Gas Co., supra. Co., 34 Ohio St. 579 ; 32 Am. St.
Using meters in some of the sup- Rep. 390.
ply pipes of a building by a water -^ State v. Sedalia Gas Co., 34
company to determine whether or Mo. App. 501.
not move than 150 gallons per day 2g gt. Louis Gaslight Co. v. St.
are being used in violation of a Louis, 11 Mo. App. 55; 84 Mo. 202.
provision regvilating the amount of Where the company's charter con-
Avater that may be used, does not tained no reference to its right to
violate a statute requiring the scale charge a meter rent, a subsequent
of water rates to be general and statute provided that " no gas com-
vmiform. Frothingham v. Bensen, pany shall have the right to charge
20 Misc. 132 ; 44 N. Y. Supp. 879. rent for meters, when 500 cubic feet
24 Louisville Gas Co. v. Dulaney, per month have been consumed " ; it
100 Ky. 405; 38 S. W. Rep. 703; was held that the statute was bind-
36 L. R. A. 125 ; 6 Am. and Eng. ing on the company. State v. Col-
Corp. Cas. (N. S.) 241; Capital, imibus Gaslight and Coke Co., 34
etc., Gas Co. v. Gaines, 20 Ky. L. Ohio St. 572; 32 Am. Rep. 390.
Rep. 1464; 49 S. W. Rep. 462;
626 OIL AND GAS.
§562. Requiring use of a certain quantity of gas per month or
pay a meter rent.
Where a gas company cannot charge a meter rent, it cannot
evade the prohibitory clause by indirection. Nor can it adopt
a rule that if a certain amount of gas is not consumed within a
month or other period of time, the consumer shall pay a certain
amount regardless of the amount consumed. To permit such a
charge is in fact to allow the company to charge a meter rent,
and thus cast a burden on the consumer it is bound to carry."^
§563. Discrimination in use of meter.
A company cannot show discrimination between two patrons
by requiring one of them to take gas by meter measurement and
permit the other to take it by a " flat " rate, if the discrimination
is, in some measure, unjust and oppressive. But there must be
something more than mere discrimination. The discrimina-
tion prohibited must not only be an actual one, but it must be
both unjust and oppressive, to some extent. Thus where an
ordinance provided that a gas company might charge twenty
cents per thousand cubic feet, or a certain named " flat " rate,
it was held in a proceeding for a mandamus to compel it to fur-
nish the applicant gas at the " flat " rate, as it was furnishing all
its other patrons, instead of the meter rate, that the applicant
was not entitled to the writ unless he showed that the meter rate
was a higher rate than the '' flat " rate.'^
ST' Buffalo V. Buffalo Gas Co.. 80 his own expense and pay by meter
N. Y. Supp. 1093. measurement instead of a " flat "
28 Indiana, etc., Gas Co. v. State, rate is valid; and he cannot be de-
158 Ind. ,516; 63 N. E. Rep. 220; nied his right to exercise the option
57 L. R. A. 761. given him. State v. Joplin W. W.,
That a discrimination must be 52 Mo. App. 312. An ordinance is
both unjust and oppressive, see not invalid that gives a householder
Cleveland, etc., ti. R. Co. v. Closser, the option to require a meter and
126 Ind. 348, 354; 26 IST. E. 159, pay for water used at rates which
Itil; 9 L. R. A. 754; 22 Am.-'-St. are different from the fixed house
Hep. 593. rates. Spring Valley W. W. v. San
An ordinance of a municipality Francisco, 82 Cal. 286; 22 Pac.
or a rule of tlic company that a Rep. 910. 1046. See State v. Gos-
consumer may put in a meter at well (Wis.), 93 N. W. Rep, 542.
METERS AND MIXERS. 627
8564. Removal of meters.
So long as a patron complies with the rules and regulations of
the company, and pays his bills, the company cannot remove the
meter from his premises, unless it be to replace it with another.
But where a company was not required to put in service pipes,
yet entered into an agreement with the o'wner of the premises to
do so, such owner (who was the consumer) agreeing to pay the
cost thereof ; it was held that the company had the right to re-
move its meter on the owner refusing or failing to pay for the
pipes."" And where a consumer resorts to other methods of
light, as the introduction of electric lights, and thereafter uses
gas only occasionally, he ceases to be a consumer, and the com-
pany may recover his meter."** And where a company charged
meter rent, though other consumers were not charged such a
rent, and the customer refused to pay it, and did not use enough
gas by a sixth part to pay the meter rent, it was held that the
company had the right to refuse him gas.'^^ Permitting a com-
pany to remove its meter pending a dispute as to the liability of
the company to a penalty incurred by its refusal to supply the
consumer, does not prevent such consumer enforcing the re-
placement of the meter, after the dispute is settled.^"
29 Detroit Gas Co. v. Moreton 3i Smith v. Capital Gas Co., 132
Treich, etc., Co., Ill Mich. 401; 69 Cal. 209; 64 Pac. Rep. 258.
N. W. Rep. 659. In this case it 32 Jones v. Rochester Gas, etc.,
was held that replevin lay to re- Co., 7 App. Div. 474; 39 N. Y.
cover the meter. Supp. 1110.
See Glasgow v. Patrick, etc., Co., If the company is bound to re-
22 Gas J. 54. move the meter on notice, the con-
so Adams Express Co. v. Cincin- sumer cannot remove it ; and if he
nati Gaslight and Coke Co., 10 Ohio ao or attempt it, the company may
Dec. 389; 21 Wkly. Law Bull. 18; enjoin him. Glasgow v. Patrick,
Fleming v. Montgomery Light Co., etc., Gas Co., 22 Gas. J. 54.
100 Ala. 657; 13 So. Rep. 618.
CHAPTER XXVII.
FIXTURES.
Art. 1. Domestic fixtures.
Art. 2. Trade fixtures.
Art. 3. Oil and gas lease fixtures.
§565. Division of subject.
The subject of fixtures relative to gas or oil necessarily
follows the lines laid clo^\^l i^ text books on that subject; such
as whether the question is one between vendor and vendee,
lessor and lessee, landlord and tenant, and mortgagor and
mortgagee. Another division is whether the article in dispute
is a domestic or trade fixture ; or whether it is one used upon
oil or gas producing territory in the production or supply of
oil or gas. The fixtures used in the latter instance usually have
reference to the production of petroleum or natural gas. The
subject, therefore, can be divided into three general subjects.
AETICLE 1.
DOMESTIC FIXTUEES.
§;)65. Division of subject.
§566. Intent. — Common law. — Public policy.
§567. Agreement. — Innocent purchaser. — Injury to freehold.
S568. Gas chandeliers. — Stoves. — Meters, etc.
S.")6n. Judicial sale of premises.
is.lTO. Gas fixtures may pass to vendee.
§566. Intent. — Common law. — Public policy.
The question of the intent with which an article is affixed
to the premises or building is one that must always be consid-
628
FIXTURES. 629
ered in determining whether or not it is a fixtnre.
The intent must often be gathered from the kind of article
in controversy, and how it is attached to the premises. If
an article is so attached to the premises by the owner of them
that it cannot be removed without material injury to the free-
hold, and there is no contract with reference to it, then it is a
part of the freehold, and will pass to a purchaser of the premises
or be covered by a mortgage given by the owner of the free-
hold. '' The united application of three requisites is regarded
as the true criterion of an immovable fixture : ( 1 ) Real or
constructive annexation of the article in question to the freehold.
(2) Appropriation or adoption to the use or purpose of that part
of the realty with which it is connected. (3) The intention of
the party making the annexation to make the article a perma-
nent accession to the freehold." ^
Continuing the court says : " According to the elementary
rule of the common law whatever is annexed to the freehold be-
comes, in legal contemplation, a part of it, and is thereafter sub-
ject to the same incidents and conditions as the soil itself. But
the diversity of trade and the development of manufactures re-
quire that the strict rules of the common law be measurably
relaxed, and it may now be said that the nature of the article
and the manner in which they are affixed, and the intention of
the party making the annexation, together with the policy of the
law, are controlling factors in determining whether an article,
which may or may not be a fixture, becomes a part of the realty
by being annexed to the freehold. The purpose or intention of
the parties, the effort and mode of annexation, and the public
policy in relation thereto, are all to be considered."'
1 Binkley v. Forkner, 117 Ind. "Mere physical annexation is no
176; 19 N. E. Rep. 753; citing Teatf longer the rule. . . . The inten-
V. Hewitt, 1 Ohio St. 511, 530; tion to annex, whether rightfully or
Potter V. Cromwell, 40 N. Y. 287 ; wrongfully, is the legal criterion."
McRea v. Central Nat'l Bank, 66 See also ITayford v. Wentvvorth
N. Y. 489, quoted in Parker Land (Me.), 54 All. Kep. 940. where it
Improvement Co. v. Reddick, 18 was held that a " wash-down syphon
Ind. App. 616; 47 N. E. Rep. 848. water closet, and its appurtenances,
2 In Shellar v. Shivers, 171 Pa. put into a business office in the
St. 569, 33 Atl. Rep. 95, it is said: usual manner by a tenant at will
630 OIL AND GAS.
^567. Agreement. — Innocent purchaser. — Injury to freehold.
In the case already quoted from it is said concerning agree-
ments relating to fixtures: "When the parties immediately
concerned, by an agreement between themselves, manifest their
purpose that. the property although it is annexed to the soil, shall
retain its character as personalty, then, except as against persons
who occupy the relation of innocent purchasers without notice,
the intentions of the parties will prevail, unless the property be
of such a nature that it necessarily becomes incorporated into,
and a part of, the realty by the act and manner of annexation.^
Thus, if, in the course of constructing a house, brick should be
placed in the walls, and joists and beams in their places, the
brickmaker and sawyer would not be permitted to despoil the
house by asserting an agreemcj^t with the owner that the brick
and beams were to retain their character as personalty notwithr
standing their annexation. In such a case the mental attitude
of the parties cannot modify the legal effect from the annexa-
tion.* But when chattels are of such a character as to retain their
identity and distinctive characteristics after annexation, and
do not thereby become an essential part of the building, so that
the removal of the chattels will not materially injure the build-
ing, nor destroy or unnecessarily impair the value of the chat-
tels, a mutual agreement in respect to the manner in which the
chattels shall be regarded after annexation will have the effect
to preserve the personal character of the property between the
parties to the agreement." Accordingly, the proposition is well
for his own use. and which could be Ind. 511, and Yater v. Mullen, 24
removed without material injury to Ind. 277.
the realty, did not become merged 4 Citing Campbell v. Roddy, 44
in the realty unless it was so put in X. J. Eq. 244; 14 Atl. Rep. 279;
with an intention to make a per- Henkle v. Dillon, 15 Ore. 610; 17
iiianent accession to the realty." Pac. Rep. 148.
As to what gas fixtures are cov- s Citing Rogers v. Cox, 96 Ind.
ered by a ])olicy of insurance, see 157; Price v. Malott, 85 Ind. 266;
New York Gaslight Co. v. Mechan- Hendy v. DinkcrshoflF. 57 Cal. 3;
ics' Fire Ins. Co.. 2 Hall lOS. Haven v. Emery. 33 N. H. 66; Ma-
3 Citing Taylor v. Watkins, 62 lott v. Price, 109 Ind. 22; 9 N. E.
Rep. 718.
FIXTURES. 631
sustained that one who purchases machinery with a view that it
shall be annexed to, or placed in, a building of Avhich he is the
o-wiier, and who executes a chattel mortgage on the property so
purchased, thereby evinces his intention that the property shall
retain its character as j>ersonalty, regardless of the manner in
which it may be annexed to the freehold." Except where the
rights of innocent purchasers are involved, it is the policy of
the law to uphold such contracts in the interest of trade." ' It
was also held in this case that if the detachment of the fixtures
covered by the chattel mortgage would occasion some diminution
in value of the freehold, as it would have stood had the attach-
ment not been made, then the depreciation must be made whole
by the chattel mortgagee to a junior mortgagee of the freehold,
and the rights of the parties adjusted by the court according to
the equity of the case.^
§568. Gas chandeliers. — Stoves. — Meters, etc.
But while the quotations made in the preceding sections
seem to lay down rules easily understood, yet trouble arises in
6 Citing Eaves v. Estes, 10 K&n. standing their annexation, and those
314; Ford v. Cobb, 20 N. Y. 344; which necessarily become absorbed
Sisson V. Hibbard, 75 N. Y. 542; or merged in the realty by being
Tift V. Horton, 53 N. Y. 377; Camp- annexed must be kept in view."
bell V. Roddy, 44 N. J. Eq. 244; 14 s Binkley v. Forkner, 117 Ind.
Atl. Rep. 279; Henkle v. Dillon. 15 176; 10 N. E. Rep. 753.
Ore. 610; 17 Pac. Rep. 148. Electric lighting fixtures used in
7 Binkley v. Forkner. 117 Ind. and alx)ut a theatre that can be de-
176; 19 N. E. Rep. 753. The court tached without injury to the build-
cites and comments on Pierce v. ing. such as switchboard to connect
George. 108 Mass. 78, where a sub- a dynamo to the permanent wiring
.sequent mortgage of the real estate of such building, chandeliers, and
took precedence of a previous chat- electric signs, are chattels and not
tel mortgage of machinery attached part of the realty in New York,
to the building; and also cites Hunt New York Life In^. Co. v. Allison,
v. Bay State Iron Co., 97 Mass. 279. 107 Fed. Rep. 179; 46 C. C. A. 229.
See Lnited States v. New Orleans The retention of the title to a port-
R. R., 12 Wall. 362, and Fosdick able furnace by the vendor gives
V. Schall, 99 U. S. 235. " The dis- him an implied right to retake it if
tinction," said the court in Binkley not paid for. even after it is set up ;
V. Forkner, supra, "between chat- so that it is not included in a prior
tels whose completeness and iden- mortgage on the realty. DuflTus v.
tlty as separate and distinct ar- Howard Furnace Co., 8 N. Y. App.
tides may be preserved notwith- Div. 567; 40 N. Y. Supp. 925.
632
OIL AND GAS.
tlieir application. Thus, it lias been held that gas chandeliers
in a house, attached by screws to pipes conveying the gas are not
part of the reakj. '* Gas fixtures," said the court, " whether in
the form of chandeliers suspended from the ceiling at the top of
the room, or projecting as brackets from the perpendicular walls,
though attached to pipes by screws and made tight by cement,
are in the nature of furniture, and do not lose their character as
chattels by reason of the manner in which they are affixed." ^
Accordingly, therefore, to the greater number of authorities, gas
fixtures, chandeliers, gaseliers, candelabra, sconces, and other
instruments used as substitutes for oil lamps and candles in
lighting a house, and gas stoves, will not pass to the vendee of
the realty as a part of it. They are regarded as personal prop-
erty, and do not pass by the ordinary deed of conveyance.^*'
Towne v. Fiske, 127 Mass. 125;
34 Am. Rep. 353. So it was held,
because of the character of the ar-
ticle, that an action of tort would
not lie for their conversion. Guth-
rie V. Jones, 108 Mass. 191.
10 Rogers v. Crow, 40 Mo. 91; 93
Am. Dec. 299; Shaw v. Lenke, 1
Daly 487. In this last case it is
said that, " the adjustment of the
bracket or chandelier to the gas
pipe is not such an actual annexa-
tion to the freehold as is contem-
plated by law." Kirchman v. Lapp,
19 N. Y. Supp. 831; Vaughen v.
Haldeman, 33 Pa. St. 522; 75 Am.
Dec. 622; Jarechi v. Philharmonic
Society, 79 Pa. St. 403; 21 Am.
Rep. 78; Penn. Mut. Life Ins. Co.
V. Thackara (Pa.), 10 Wkly. W. N.
C. 104; 11 Wkly. W. N. C. 391; 13
Reporter 731 ; McLean v. Palmer, 2
Kulp (Pa.) 349 (oil lamps) ; Wil-
son V. Freeman, 7 Wkly. W. N. C.
(Pa.) 33 (chandeliers in a saloon^;
Voorhis v. Freeman, 2 Watts, and
b. 116; 37 Am. Dec. 490; Heysham
V. Dettre, 89 Pa. St. 506 (heaters).
In England a statute authorized
a gas company to let for. hire to
the user of gas " any fittings for
the gas," and declared that such
" fittings " should not be the sub-
ject of distress when let to his ten-
ant. This statute was held to cover
a gas stove, used for heating pur-
poses only, and rented to a tenant.
Gaslight and Coke Co. v. Hardy,
17 Q. B. Div. 619; 56 L. J. Q. B.
168; 55 L. T. 585; 36 W. R. 50; 51
J. P. 6. And the same rule was
adopted where a stove was used for
cooking, " containing besides the
burners and the chamber in which
the gas was consumed, other cham-
bers together with grates, hot plates
and arrangements for the reception
of cooking utensils." Gaslight and
Coke Co. V. Herbert Smith, 3 Times
Law Rep. 15. Gaslight and Coke
Co. V. Hardy, 56 L. J. Q. B. 168.
Meters put upon premises by a
gas company, and attached to the
gas pipes by solder, and by means
of those pipes to the company's
main, belong to the company. Re-
gina V. Inhabitants of Lee, L. R. 1
Q. B. 241; 35 L. J. M. C. 105; 12
Jur. (N. S.) 225; 13 L. T. (N. S.)
704; 14 W. R. 311. City removing
FIXTURES. 633
Gas eliaiideliers so far partake of the nature of personal prop-
erty, that a thief who severs and immediately carries them away
may be convicted of larceny/^
§569. Judicial sale of premises.
The rule as between vendor and vendee is applicable to an
instance where the premises are sold under judicial or other
like process ; and the right of the former owner and purchaser
at such sale are determined exactly the same as if the former
owner had himself sold the premises to the purchaser under the
enforced sale.^" And this is true even though the sale is one
conducted under the provisions of a mortgage.^^
§570. Gas fixtures may pass to vendee.
As intimated in a previous section, the ordinary gas fixtures
may pass to the vendee. In a l^ew York case it is said that
they may pass as a part of the realty, if the intent that they shall
so pass is shown by acts and declarations of the vendor.^* But
some of the cases go farther than this. Thus in England it was
said: " The gaseliers (chandeliers) are a part of the gas pipes,
and, to use a legal expression, they take their nature and are
water meter after building had been sonal property. Nisbet v. Mitchell-
prepared for its use. Ladd v. Bos- Innes, 7 R. 575.
ton, 170 Mass. 332; 49 N. E. Rep. 12 Vaughen v. Haldeman, 33 Pa.
627; 40 L. R. A. 171. Gas puri- St. 522; 75 Am. Dec. 622; Towne
fiers, gas holders, pumps and ex- v. Fiske, 127 Mass. 125; 34 Am.
hausters are taxed or rated as fix- Rep. 353; McNally v. Connolly, 70
tures in England. Regina v. Lee, Cal. 3; 11 Pac. Rep. 320.
swpra. 13 Montague v. Dent, 10 Rich.
11 Smith V. Commonwealth, 14 135; 67 Am. Dec. 572.
Bush. (Ky.) 31; 29 Am. Rep. 402. In Pennsylvania shares of stock
For instance, where gas fixtures in an oil company, an oil lease and
are held to be realty, see Ex parte an interest in the fixtures thereon
Acton, 4 L. T. (N. S.) 261; Ex cannot be attached, under Act of
parte Wilson, 2 Mont, and Ayr. 61 ; July 12, 1842, for wages. Dawson
4 Dea. and Chit. 143; 4 L. J. (N. v. Kirby, 6 Pa. Dist. Rep. 13; 27
S.) Bank. 24; and Central Trust, Pitts. L. ,J. (N. S.) 234.
etc., Co. V. Cincinnati, etc., Co., 26 i* Funk v. Brigaldi. 4 Daly 359;
Wkly. Law Bull. 149; 11 Ohio Dec. Central Trust, etc., Co. v. Cincin-
Rep. 348. nati. etc., Co., 26 ^Ykly. Law Bull.
In Scotland gas fixtures are per- 149; 10 Ohio Dec. Rep. 348.
634 on. AND GAS.
included in the fixtures which go with the house under the lease.
They are as much a part of the gas pipes as the mill stones are
part of the mill. Although the gaseliers may be unscrewed and
taken off Avithout injuring the freehold, they are necessary to the
enjoyment of the gas pipes, Avhich are of no practical use when
separated from them." ^"^ And in America are cases holding
gas fixtures to he a part of the realty. Thus in ^ew Jersey it
was said: ''Gas burners are fixtures. They are in no sense
furniture, but are mere accessories to the mill. The apparatus
for the manufacture of gas (called a generator) is situated in
a pit made expressly for it in a small building built for it a
short distance from the main building. It is connected Avith a
gas pump in the building, and the pipes are attached to the
beams and girders by hooks, and in some places pass through
the holes in the side walls, borad for the purpose. The genera-
tor and its appurtenances, and the pipes are. fixtures." ^^ What
is said about " gas burners " may he regarded as a dictum; but
it is evident that the court Avould have held them to be a part
of the realty if there had been a controversy over them. In
Kentucky it is held that chandeliers, affixed by means of screws
to iron pipes let into the walls of the house, in order to conduct
gas to the burners, even though they could be moved Avithout
injury to the Avails or ceilings, and Avhich formed an ornamental
addition to the house, belong to the vendee as between him and
the vendor, being a part of the real estate.^' And in ]Srew York
it Avas held that gas logs may be fixtures if the intention of the
OAAmer was to make them such ; and that the intention Avas to be
determined from such oAvner's acts and conduct, and from all
the circumstances of the transaction.^® So in the same State it
15 Sewell V. Angerstein, 18 L. T. it Johnson v. Wiseman, 4 Met.
(N. S.) 300. See also Hutchinson (Ky. ) 357; 83 Am. Dec. 475.
V. Kay, 23 Beav. 413. isCosgrove v. Troescher, 02 App.
inKeeler v. Keeler, 31 N. J. Eq. Div. (N. Y.) 123; 70 N. Y. Supp.
ISl. 191. In Hays v. Doane. 11 N. 764. Same rule applied to gas H\--
.1 Eq. 84, it is held that a gas- tures. Daniels v. Detwiler, 14 Mont,
ometer and apparatus for generat- Co. L. Rep. 58; 15 Lane. L. Rev,
ing gas, are movable property, and 165.
not fixtures, as between landlord
and tenant.
FIXTURES. 635
was held that gas pipes passed to the vendee of a store, although
they were put in by the tenant of the vendor, who had a right to
remove them as against his landlord/** In Ohio it was held by
the nisi pi-ius court that where chandeliers and gas brackets were
affixed to a building in a manner to indicate an intention on
the owner's part to make them a part of such building, they
were fixtures and passed to the vendee.^" So in Pennsylvania a
gas machine, a part of a suburban dwelling house, put in at the
time the house was built, and connected with it by underground
pipes running through the foundation walls and joining in the
house permanent machinery ; and to this machinery was connect-
ed the ordinary gas pipes of a house, was held to be subject to
a mechanic's lien, and therefore part of the realty."^ But it
has also been held in that State that gas fixtures do not pass to
the vendee of the realty, in the absence of an intent that they
shall be included in the sale.^^ In California a hotel was con-
veyed " Avith the appurtenances thereunto belonging." This
conveyance was made in pursuance of a written agi'eement pro-
viding that the vendor might remove his furniture, carpets and
pictures, but none of the " permanent fixtures and appurte-
nances." Under these facts the court considered that there was
a special agreement concerning the gas fixtures and fittings, the
kitchen range, water filter, tanks and mosquito screens, to the
effect that they were to go with the real estate.'^
19 Smyth V. Sturges, 108 N. Y. 22 Daniels v. Detwiler, 15 Lane.
495; 15 N. E. Eep. 544; affirming L. Eev. 165; 14 Mont. Co. L. Rep.
30 Hun 89. 58.
20 Central Trust, etc., Co. v. Cin- 23 Fratt v. Whittier, 58 Cal. 126;
cinnati, etc., Co., 26 Wkly. Law 41 Am. Rep. 251.
Bull. 149; 10 Ohio Dec. Rep. 348. Of course, a special agreement su-
80 in Pennsylvania. Daniels v. persedes the general rule and con-
Detwiler, supra. trols the right to remove gas fix-
21 Light Co. V. Gill, 14 Pa. Co. tures. Wall v. Hinds, 4 Gray 256;
Ct. R. 6. 64 Am. Dee. 64.
(536 OIL AND GAS.
AKTICLE 2.
TRADE FIXTUEES.
§571. Between mortgagor and mortgagee.
§572. Gas pipes in houses.
§573. Landlord and tenant.
§574. When tenant must remove.
§571. Between mortgagor and mortgagee.
The rule between mortgagor and mortgagee is not sensibly
different from the rule between vendor and vendee. It is there-
fore held that gas fixtures and gas ranges are personal property
as against the mortgagee of the realty, and can be removed by
the mortgagor."*
tr
§572. Gas pipes in houses.
Gas pipes fixed within the walls of houses, and also those lead-
ing from the premises ' in the street to the house, are clearly fix-
tures, and pass with a conveyance of the house or premises."^
Thus where a water pipe w^as laid across adjoining land to sup-
ply a house with water, it was held that it passed with a con-
veyance of the house. '^ But pipes may be placed in a house
24 Cosgrove v. Troescher, 62 App. nace, where vendor retained the
Div. (X. Y.) 123; 70 N. Y. Supp. title); McKeage v. Hanover Fire
764; Rogers v. Prattville Mfg. Co., Ins. Co., 81 N. Y. 38; 37 Am. Rep.
81 Ala. 483; 1 So. Rep. 643 (ma- 471; Capehart v. Foster, 61 Minn.
chinery) ; New York Life Ins. Co. 132; 63 N. W. Rep. 257; 52 Am.
V. Allison, 107 Fed. Rep. 179; 46 St. Rep. 582 (also an electric an-
C. C. A. 229 (dynamos and engine nunciator, but not a steam radia-
for driving the dynamos); Vail v. tor; criticising National Bank v.
Weaver, 132 Pa. St. 363; 19 Atl. North, 160 Pa. St. 303; 28 Atl.
Rep. 138 (electrical machinery Rep. 394).
placed in the building for the pur- 25 Smyth v. Sturges, 108 N. Y.
pose of supplying light, after the 495; 15 N. E. Rep. 544; affirming
mortgage was executed, with no ^n- 30 Hun 89 ; Ex parte Wilson, 2
tent to make it a part of the real- Mont, and Ayr. 61; 4 Dec. and Chit,
ty) ; Keeler v. Keeler, 31 N. J. Eq. 143; 4 L. J. (N. S.) Bank 24.
ISl. 191; Duffus V. Howard Fur- 20 philbrick v. Ewing, 97 Mass.
nace Co., 8 N. Y. App. Div. 5G7 ; 133.
40 N. Y. Supp. 925 (portable fur-
TRADE FIXTURES. 637
under such circumstances as to show an intent that they should
remain jDersonal property. Such was the case where the owner
of a store room contracted wnth an electric lighting company to
put electric wires and fixtures in his store room, and agreed to
use the light for one year and pay for it " in conformity with
the regulations endorsed " on the written and signed contract.
One of these regulations was that tlie comj)any should have ac-
cess to the premises for the removal of the lamps or wire.
Channels were dug in the plastering of the walls of the rooms,
the wires placed in them, fastening them with staples, and then
covered over by filling such channels with mortar, restoring the
Avails as nearly as possible to their former condition. It Avas
held that the ownership of the wires Avas a question of the in-
tention of the parties, and was for the jury."^
§573. Landlord and tenant.
The right of a tenant to remove fixtures from the rented
premises practically stands on a contract betAveen him and his
landlord, usually an implied one, but not infrequently an ex-
press one. The laAV does not presume that fixtures placed by
the tenant on the rented premises, in order to enable him to use
or enjoy them, and Avhich can be remoA^ed Avithout injury to
such premises, were intended either by him or his landlord to
become a part of the realty, and to remain after the tenancy
had expired. If there is an express contract concerning their
removal, that Avill control ; but in the absence of such a contract,
the law raises an implied contract that the tenant can remove
them if he perform the act of remoA^al at a proper time and in
a proper manner. Usually he must remoA^e them during the
term of the tenancy. " A great part of the gas fixtures, such as
the gasometers and the apparatus for generating gas, as between
landlord and tenant, are movable property. They would, it is
27 Harrisburg, etc., Co. v. Good- fixtures as between landlord and
man, 129 Pa. St. 206; 19 Atl. Eep. tenant. Gas mains. Poughkeepsie
844. See Wall v. Hinds, 4 Gray Gas Co. v. Citizens' Gas Co., 20
256, 04 Am. Dec. 64, where gas Hun 214.
pipes were held to be removable
638 OI"L AND GAS.
true, pass to the heirs-at-law with the inheritance, or between
grantor and grantee, as fixtures to the real estate ; but as between
landlord and tenant, the latter has a right to remove them during
the term." ''^ Such fixtures are regarded as his personal prop-
erty during the term of the lease, especially if they are trade
fixtures."'' Thus gas pipes passing from the cellar through the
fioors and partitions, retained in their places by Inetal bands, are
such fixtures as a tenant may remove, even though some of
them pass through wooden ornaments of the ceilings, which are
cut away for their removal. ^° If an incoming tenant purchase
from his landlord the fixtures upon the demised premises, they
of course become personal property, and he may remove them.^^
8574. When tenant must remove.
One line of authority expressly limits the right of the tenant
to remove the fixtures to the term of his lease, giving him the
right to remove them at any time during the lease, or while he
continues tenant ; but after the expiration of such lease and the
surrender of the premises to the landlord, he cannot enter on
such premises to remove the fijctures. And the reason of this
rule is said to be that when he quits the premises, leaving his fix-
tures behind him, it will be presumed that he intended to aban-
28 Hays V. Doane, 11 N. J. Eq. in as good condition as it was at
84; Elliot v. Bishop, 10 Exch. 512; the beginning of the lease. Ross
Childs V. Hurd, 32 W. Va. 66; 9 v. Campbell, 9 Colo. App. 38; 47
S. E. Rep. 362; Seeger v. Pettit, 77 Pac. Rep. 465.
Pa: St. 437; Guthrie v. Jones, 108 That a tenant may remove, see
Mass. 191. Wilde v. Waters, 16 C. B. 637; 24
20 Kile V. Giebner, 114 Pa. St. L. J. C. P. 193; 1 Jur. (N. S.)
381; 7 Atl. Rep. 154; Ex parte 1021; Elliott v. Bishop, 24 L. J.
Morrow, 1 Lowell's Dec. 386; 2 N. Exch., p. 39; 42 L. J. Exch., p.
B. R. (2d ed.) 665. 229; 10 Exch. 496.
•foWall V. Hinds, 4 Gray 256; si Ryall y. Rolle, 1 Atk., p. 175.
64 Am. Dee. 64. This is particu- Generally, that a tenant may re-
larly true if there be an agreement move gas fixtures he puts in, see
to that effect. *■ Elliott v. Bishop. 10 Exch. 496; 24
A tenant may remove a tile floor L. J. Exch., p. 39; 42 Id., p. 229;
and an electric light apparatus D'Eyncourt v, Gregory, L. R. 3 Eq.
placed in a building for business 382.
purposes, if he leave the building
TRADE FIXTURES. 639
don them.^" But the rule that he must remove them during the
tenancy may be modified by an express agreement. Thus where
property by an express agreement between the tenant and land-
lord was made personal property, it was held that it could not
be contended that it was the tenant's fixtures, and therefore
movable, only during the tenancy.^^ So where it was agreed
when the lease was surrendered, that the landlord should sell
the fixtures for the tenant's benefit, and at the request of the
landlord the tenant left them on the premises, it was held that
the latter had not lost his right to them, and that the former was
liable for their conversion.^* So acceptance of a new lease by
the tenant is not a waiver of his right to the trade fixtures he
has placed upon the premises, although there be no agreement
with respect to them, unless such new lease in clear terms cover
the fixtures upon the premises leased.^^ But some autliorities
extend the rule farther than those just cited would indicate.
Thus it was decided in J^ew York that trade fixtures did not
cease to be the tenant's property by reason of the mere fact that
he did not remove them during his term ; and that he could " re-
move them after his term expired without subjecting himself
to any damages for such removal, even though he be liable to an
action for trespass for an entry on the premises demised." It
was also held that the tenant could mortgage them by
a chattel mortgage, and that they could be levied upon
with an execution against him.^*' In Illinois it was held
that the tenant had a reasonable time within which to
remove trade fixtures, and what was a reasonable time
was a proper question for the jury, under the instructions of
32Childs V. Hurd, 32 W. Va. 66; 236; 25 N. E. Rep. 362. reversing
9 S. E. Eep. 362; Friedlander v. 4 N. Y. Supp. 694 ; East Sugar Loaf
idder, 30 Neb. 783; 47 N. W. Rep. Coal Co. v. Wilbur, 5 Pa. Dist. Rep.
83; Wall v. Hinds, 4 Gray 256; 64 202.
Am. Doc. 64; Hays v. Doane, 11 N. 35 Second National Bank v. O. E.
J. Eq. 84. Merrill Co., 69 Wis. 501; 34 X. W.
s'-Lake Superior Ship Canal, etc.. Rep. 514; Wright v. McDonell.
Co. V. McCann. 86 Mich. 106; 48 88 Tex. 140; 30 S. W. Rep. 907.
N. W. Rep. 692. ?g Lawrence v. Kemp, 1 Duer.
34 Thorn v. Sutherland. 123 X. Y. 363.
640 OIL AND GAS.
the court."'' This is undoubtedly true where a forfeiture of the
lease takes place ; and if the tenant is denied the right after the
forfeiture to remove them, he may bring an action therefor,
especially if the lease contain an agreement giving him the right
to make such removal.^^
ARTICLE 3.
OIL AND GAS LEASE FIXTUEES.
§575. Coal and mineral leases.
§576. Oil and gas lease fixtures.
§577. Conveyance or mortgage of fixtures.
§578. Special contract controls.
§579. Gas and oil pipe lines.
§575. Coal and mineral leases.
The right of a lessee in an oil or gas lease does not differ from
the right of a tenant, in an ordinary agi'eement for the renting
of premises for trade purposes. There is no difference, taking
into consideration the character of the fixtures, in this respect,
between a lease to bore for oil or gas and one to dig for coal
or other minerals. In the case of a mere parol license to mine
for coal, and the license is revoked, the licensee may remove his
fixtures within a reasonable time ; and there is no reason why the
same is not applicable to an oil or gas license or lease.^^ Thus
a steam engine, boilers, and pumps, sunk into a ledge of rock in
order to get a level, and covered by a shed for shelter, used in
working a mine, is a trade fixture, and may be removed by the
tenant, unless the right to remove it is controlled by an agi'ee-
ment, or by some local usage.*** The rule extends not only to
"~ Berger v. Hoerner, 36 111. App. Springfield, etc., Co. v. Cole, 130
360; Nigro v. Hatch (Ariz.). 11 Mo. 1; 31 S. W. Rep. 922.
Pac. Rep. 177. 4o Merritt v. Judd, 14 Cal. 60;
38 Sattler v. Opperman, 30 Pittsb. Wake v. Hall. 7 Q. B. Div. 295; 8
Leg. J. CN. S.) 205. See also Pot- App. Cas. 195; Hewitt, etc., Co. v.
ter V. Gilbert, 177 Pa. St. 159; 35 Watertown, etc., Co., 65 HI. App.
Atl. Rep. 507; 35 L. R. A. 580. IS.S.
39Desloge v. Pearce, 38 Mo. 588;
OIL AND GAS LEASE FIXTURES. 641
a steam engine and machinery connected therewith, but to all
fixtures or appliances used for the purpose of hoisting coal from
the mine. These remain the property of the lessee.'*^ Thus a
sale of a seller's interest in a '' colliery " includes " all the
movable property belonging to and used at the place in mining-
coal " ; and it is not error to so instruct the jury, and add " that
the word ' colliery ' is a collective compound including many
things, and is not limited to the lease and fixtures of a tunnel,
drift, shaft, slope, or vein from which coal is mined."*' Where
a lease was made for the purpose of mining iron ore, and it was
provided that the lessee would, at its termination, peaceably sur-
render the premises, " and other improvements and erections
that may be thereon — engine, boilers, machinery, tools, imple-
ments, and other movable ]Tersonal chattels excepted ; it was
held that this agreement made engines and boilers personal
property as between the lessor and an execution creditor of the
lessee, and that they could not be treated as trade fixtures.^^
Where A. entered into an agreement with B. to put in machinery
to bore a salt well on the latter's land, in consideration of which
he was to have a share of the property and business, but never
sunk the well, and B. sold and conveyed the lands to C. ; it was
hold that the machinery did not pass by the conveyance ; for the
reason that the machinery was put on the premises for a tem-
porary purpose, to sink a well, and as it would be removed with-
out injury to the freehold, it did not become realty, not being
so intended or especially adapted for permanent use as a part of
the freehold.'** So a sale of a coal mine does not include, im-
41 Dobschuetz v. Holliday, 82 111. ^3 Lake Superior Co. v. McCann,
371; Hewitt, etc., Co. v. C4eneral 86 Mich. 106; 48 N. W. Rep. 692.
Electric Co., 61 111. App. 168; Au- A mining flume running along the
denried v. Woodward, 4 Dutch. (X. bank of a river to a mine was held
J.) 265; Davis v. Moss, 38 Pa. St. not exempt from taxation under a
306; Heffner v. ' Lewis, 73 Pa. St. statute exempting mining claims.
302 (a railroad to the mine) ; Wil- " It is not affixed to the claim so as
liams' Appeal, 1 Monaghan (Pa.), to become a part of it. It is rather
274; ]Montooth v. Gamble. 123 Pa. to be regarded as machinery, or as
St. 240; 16 Atl. Rep. .504 (houses) ; apparatvis useful in mining." Hart
Ritchie v. McAllister, 14 Pa. Co. Ct. v. Plum, 14 Cal. 148.
Rep. 267 (railroad). 44 Bewick v. Fletcher, 41 Mich.
42 Carev v. Bright. 58 Pa. St. 70. 625.
642 OIL AND GAS.
plements, tools, and movable articles of the mine ;'*^ but it does
include the machinery and fixtures of the mine, the trouble
generally beino,' to determine what is and what is not a fixture/"
to
§576. Oil and gas lease fixtures.
A lessee of land, to bore for oil, wdio does not find any oil has
a right to remove not only the machinery used in sinking the
well but also the casings in the wells, unless there be a contract
to the contrary concerning their removal.*^ And a levy of an
execution upon " all right, title and interest of the defendant
[lessee] of, in and to a certain lease-hold estate situate," etc.,
" together with the oil wells, engines, boilers, engine houses,
derricks," etc., etc., " and all the machinery and fixtures be-
longing to said well and lease," covers the fixtures of the lease-
hold.*'^ Where a lease of sround was given for three years and
as much longer as oil or gas was found in paying quantities,
Avith the right to remove all fixtures " at any time," it was held
that the fixtures must be removed within a reasonable time after
the expiration of the three years' period, or within a reasonable
time after the time it was determined that neither oil nor gas
could be secured in paying quantities ; and that the phrase '" at
any time" could not be stretched so as to include an unreasonable
length of time after the lease had in fact terminated. " The
lease was for a fixed period," said the court, " to be extended to
an indefinite period, and the extension to depend upon wdiat the
future might develop. The right to enter at any time, and the
right to remove machinery at any time, was predicated on that
part of the term that was uncertain, that is, after three years the
45 Fisher v. Dixon, 12 CI. and F. set on rock work, with the ordinary
312. connections with the engine, were
40 Dudley v. \Yarde, Amb. li;5. fixtures. Roseville Alta :Mining- Co.
In Colorado a statute provides v. Iowa Gulch Mining Co., 15 Colo,
that the terms "land" and "real 29; 24 Pac. Rep. 920.
estate " shall embrace claims. Un- 47 Siller v. Globe Window Glass
der this statute it is held tl»at an Co.. 21 Ohio C. C. 284; 10 Ohio Cir.
engine placed in an engine house Dee. 784.
on a framo bolted down to timbers 48Titusville Novelty Iron Works'
sunk in tlio ground and earth Appeal, 77 Pa. St. 103.
tamped around them, and a boiler
OIL AXD GAS LEASE FIXTURES. 643
lessee had the right at any time to enter and drill additional
wells, if oil or gas "was being produced in paying quantities;
and had the right, although the three years had passed, to re-
move the machinery and fixtures after or when the well would
cease to produce oil or gas in paying quantities. If this con-
struction is correct, then the rule of law as to removal of fix-
tures, as when it depends upon a contingency, and that is, that
the removal mast be made within a reasonable time ; or in other
words, the law in such cases allows the tenant a reasonable time
for the removal of the fixtures. Here the lessees, if oil or gas
lias been found in paying quantities, would have had a reasona-
ble time within which to draw their casing and remove their
derricks after it had become apparent that the operation of the
wells was no longer profitable, let this be soon or long after the
expiration of three years ; at any time when they thought it
would no longer pay to operate their wells which had been pro-
ducing oil or gas in paying quantities, they had a right to re-
move the fixtures connected with such wells. Under the facts
as we have them in this case, however, oj^ierations ceased on this
lease in Aj>ril, 1887; a dry hole was found, nothing was done
between the completion of this well and the time when the lease
expired in Xovember, 1888, and after that four years were
allowed to expire before an attempt to remove these fixtures
was made. In our opinion, this was too late. If, under the
words ' at any time ' the lessee could take four years after the
expiration of the lease to remove his fixtures, he could as well
take twenty years. To say that the lessor could prevent this
by giving notice that the fixtures must be removed within a cer-
tain time, is to read something into the contract that is not
there." *""* Contingencies may arise that will not require the
lessee to remove his fixtures at the expiration of the lease, or
even within what would have otherwise been a reasonable time.
Thus where there arose a dispute between the lessor and lessee
as to when the lease expired and the controversy was taken into
the courts, and was decided against the lessee, it was held that
the lessee could remove the fixtures at the termination of the
49Shellar v. Shivers, 171 Pa. St. 569; 33 Atl. Rep. 95.
644 OIL AND GAS
suit, although the lease had long before exjDired ; and if the lessor
had refused to permit the lessee to so remove them, he was
liable in damages.^** A covenant on the part of the lessee to de-
velop gas or oil land leased is separate and apart from an agree-
ment of the lessor that the lessee might remove the fixtures at
the expiration of the lease or within a reasonable time there-
after ; and if the lessor seize the fixtures for the reason that the
lessee has failed to keep his covenant, he will be liable in
damages.''^
§577. Conveyance or mortgage of fixtures.
A conveyance of the lands whereon are gas or oil wells owned
and worked by the owners of the land will carry with it those
fixtures attached to the freehold necessarily used in such work ;
and so a conveyance of the*[easehold interest by the lessee will
also carry such fixtures, unless there be an agreement to the
contrary.^" But it will not carry oil in tanks on the leased
premises. ^^ Tanks for holding the oil, placed by the owner of
the land upon a foundation of earth and lumber, are presumed
to be such permanent accessions to the land as will subject the
land to a mechanic's lien, and of course pass with a conveyance
thereof."* In Pennsylvania an Act of the legislature ^" provides
that it shall " be lawful for every lessee for a term of years of
any colliery, mining land, manufactory, or other premises, to
50 Sattler v. Apperman, .30 Pitts. Thomas, 25 Ore. 539 ; 36 Pac. Rep.
L. J. (N. S.) 205. See also Wright 036.
V.' McDonnell, 88 Tex. 140; 30 S. VV. 52 Roseville Alta Mining Co. v.
Rep. 907. Iowa Gulch Mining Co., 15 Colo.
51 A steam engine in a coal mine 29; 24 Pac. Rep. 920; Ritchie v.
for the use of the tenant, and re- McAllister, 14 Pa. Co. Ct. Rep. 267.
movable without injury to the mine, s.'. JMcQuire v. Wright, 18 W. Va.
is not a fixture. Hewitt, etc., Co. 507.
V. Watertown Steam Engine Co., si Parker Land, etc., Co. v. Red-
Go 111. App. 153. dick, 18 Ind. App. 616; 47 N. E.
A derrick erected by a tenant in Rep. 848. Contra, Seider's and
a quarry, by placing a post upright International, etc., Co. v. Lewis, 7
in a socket in the ground, is a trade Pa. Dist. Rep. 278; 21 Pa. Co. Ct.
fixtui'o. and is not subject to a Rep. 80.
mechanic's lien. Iloneyman v. 55 Act of April 27, 1855; P. L.
369.
OIL AXD GAS LEASE EIXTUEES. 645
mortgage his or her lease or term in the demised premises, with
all buildings thereon, to the lessee belong [ing] and thereunto
appurtenant, with the same effect as to the lessee's interest and
title, as in the case of mortgaging a freehold interest and title
iis to lien, notice, evidence and priority of payment " ; but
the mortgage and lease must be placed of record in the proper
oounty, and the mortgage can in no wise interfere with the land-
lord's right, priority or remedy for rent.^*^ After the passage
of the Act it was held that in a mortgage of the leasehold, in-
cluding " all machinery and fixtures thereon — one boiler, one
engine, two tanks, etc. — ■ and all and singular the appurtenances
thereunto belonging," was included a leather belting; and that
it was competent to show by parol evidence that the belting was
actually on the leasehold premises wdien the mortgage was ex-
ecuted, and was embraced therein.^" The word " fixture " as
used in this Act has been held to include mine cars and all such
machinery and appliances as are essential to the operation of a
colliery, but not prop-timber.^* The mortgage of an electric
lighting plant, including boilers, engines and dynamo, " with all
the appurtenances thereunto belonging," includes masts erected
in the street and wires strung thereon, along which the electric
current was conducted to electric lamps.^" Without the aid of
a statute, a tenant may so mortgage his leasehold as to cover the
fixtures upon it.*''' And he may bring under a mortgage of the
56 This act was construed to ap- sold " to the second grantee " all
ply to oil land or gas leases. Gill the buildings, tanks, derricks, pipes,
V. Weston, 110 Pa. St. 312; 12 pipe lines, fixtures, and all other
Atl. Rep. 921. personal property whatsoever " sit-
5T Gill V. Weston, supra. uated upon any portion of the
58 Baker v. Atherton, 15 Pa. Co. ranch, it was held not to be a mere
Ct. Rep. 471. conveyance of these as chattels, but
so Fechet v. Drake (Ariz.), 12 it gave the right to occupy suffi-
Pac. Rep. 694. cient land for the use of the prop-
W'here the owner of a ranch con- erty for the purpose and in the way
veyed a part of it, excepting " all it had theretofore been operated,
oils, petroleum, asphaltum. and Dietz v. ^Mission Transfer Co., 9.5
other minerals," and then conveyed Cal. 92; .30 Pac. Rep. 380.
to another the remaining part of the co Lawrence v. Kemps, 1 Duer.
ranch, reserving the minerals ; and 363.
the first grantee "granted and In Bainbridge on Mines and Min-
(j4:Q
OIL AND GAS.
existing machinery and plant of a leasehold, after acquired ma-
chinery or fixtures placed upon the premises during the con-
tinuance of the security ; ^^ but the terms of the mortgage must
expressly include such after acquired property, for a mere
mortgage of existing property will reach after acquired prop-
erty.''
erals (edition of 1900, 5th), 263,
the English law with respect to
mining fixtures is stated as fol-
lows: "And regarding the remov-
ability of fixtures properly so
called, and their sale or devolution
separately from the land or mine,
the following points appear to be
established, namely — Firstly, as be-
tween an executor or administrator
and the devisee or heirs — whether
the deceased was the owner in fee
of the land or of the mine, the de-
visee or heir will, as a general rule,
be entitled to the machinery also,
which has been annexed to the free-
hold, and which has become a part
of the inheritance — as e. g., in the
case of a salt mine or salt works
(Lawton v. Salmon, 1 H. B. 259) ;
and the special circumstances must
be shown to alter that rule (Low-
ther V. Cavendish, 1 Eden 99; Wood
V. Gaynon, 1 Amb. 395; Lushing-
ton V. Sewell, 1 Sim. 435) ; also,
where the corpus of any machinery
or fixture belongs to the heir or
devisee, he is entitled to all the
parts capable of being used in a de-
tached state, if they really belong
to it. (Fisher v. Dixon, 12 CI. and
F. 312). But, secondly, as between
the tenant for life and the person
entitled in remainder or reversion
— the executor of the tenant foi^lif^
will, as a general rule, be entitled
fo the machinery and fixtures. Thus,
\\liere a fire engine for working a
collier had been set up by the tenant
for life; and it was proved to be
customary to remove such works;
but it appeared also that the engine
could not be removed without tear-
ing up the soil and destroying the
brick work — Lord Hardwicke de-
cided tiuit the engine was part of
the personal estate of the late ten-
ant for life, and went to his execu-
tor (Lawton v. Lawton, 3 Atk. 13) ;
and he applied the same rule in a
subsequent case to a deceased ten-
ant in tail (Dudley v. Warde, Amb.
113; Lawton v. Salmon, 1 H. Black
259). And, thirdly, as between a
mining lessee and his lessor, a still
greater liberality in favor of the
lessee or of his executor prevails
(Grymes v. Boweren, 6 Bing. 439)
subject only to this condition, name-
ly, tliat. the lessee or his executor
nnist exercise his right to remove
the fixtures during the continuance
of the term or during what has
been termed the excrescence of the
tei'm (Heap v. Barton, 12 C. B.
274; Penton v. Robart 2 East 88)
— scil., because he will otherwise be
considered to have relinquished his
claim (IMinshull v. Lloyd. 2 M. and
^^^ 459 ; Weston v. Woodcock, 7
M. and W. 14)." See also Hewitt
v. ^^'atertown Steam Engine Co.,
05 111. App. 153 (steam engine in
coal mining for use of tenant).
■• Holyrod v. Marshall, 2 GifT.
382; 2 DeG. F. and J. 596; 3 L. J.
Ch. 055; 30 L. J. Ch. 385; 3 L. J.
Ch. 193.
"-Beeve v. Whitmore, 33 L. ,1.
Ch. 63.
OIL AXD GAS LEASE FIXTURES. 647
^578. Special contract controls.
Special agreements relating to fixtures contained in leases,
especially in mining leases — often settle the rights of the
])arties with reference to machinery and fixtures. Thus where
a lease of land and salt mines gave the lessee the right to erect
a warehouse, build quays, salt pits and other works, reserving
a certain rent for every salt pan then or thereafter erected by
the lessee; and the lessee covenanted to leave all the buildings,
quays and salt worhs in good repairs — it was held that he could
not remove any salt pans he had built. *^^ ^Yhere a lessee cove-
nanted to leave all the '' fixed materials," except the salt pans
and other movable articles used at the salt works; and he as-
sigiied the lease ; and in a renewal of the lease the assignee
covenanted to give up possession of the premises, with all im-
provements, cisterns, doors and other fixtures and appurte-
nances, stipulating for the right to take away the salt pans and
other articles used, it was held that he had only the right to
take such fixtures as could properly be called tenant's fixtures.*'*
But where a lessee of a coal mine and iron works covenanted to
yield, at the end of his term, all " ways and roads " in good
repairs, and fit for immediate future use ; it was held that the
agreement did not cover tram plates and wooden sleepers of
the railroad laid down by the lessee, which had been seized
under an execution against him, but that it did cover rails and
sleepers in place at the time of the lease, it being the intention
of the lessor and lessee to bind only those in existence at the
As against a trustee in bankrupt- the fixtures before he can claim
cy, the mortgagee of a mine, with them. Mather v. Fraser, supra ;
engines and other fixtures, is in gen- Regbie v. Fenwick, L. R. 8 Ch. App.
eral, entitled to all the machinery 1075, note; Ex parte Daglish, In re
fixed to the freehold (Mather v. Wilde. L. R. 8 Ch. App. 1072; Ex
Frazer, 2 Kay and J. 536; 25 L. J. parte Barclay. In re .Joyce, L. R.
Ch. 361; Whitmore v. Empson, 23 Ch. App. 576; Batchelor v. Yates.
Beav. 313; 26 L. J. Ch. 364); but 38 Ch. Div. 112.
not to the movable fixtures, which 63 Earl of Mansfield v. Black-
vest in the trustee. Whitmore v. burne, 3 Scott (X. S.) 820; 6 Bing.
Empson, supra. Usually, however, X. C. 427.
the mortgage must contain a clause C4 Summer v. Bromilow, 34 L. J.
authorizing the mortgagee to sever Q. B. 130.
us
OIL AND GAS.
time of the lease and not those thereafter acquired ; and that it
was not the intention to hind the lessee to continue for a long
term of years the repairs of railroads which might have become
useless. It was considered that the terms of the covenant were
satisfied by the railroad being left in a proper state for the re-
laying of rails by the lessor,''^
§579. Gas and oil pipe lines.
We have already seen that a water pipe laid across an ad-
joining lot to supply a house with water passes with a convey-
c5 Beaufort (Duke) v. Bates, 3
DeG. F. and J. 381; 31 L. J. Cli.
481; Bird v. Crabb, 30 L. J. Ex.
318.
So if a tenant purchase the fiX(|
tures of his landlord, he may re-
move them. Ryall v. Rolle, 1 Atk.,
p. 175. See also Handforth v. Jack-
son, 150 Mass. 149; 22 N. E. Rep.
6.34.
The owner of mineral land leased
it for the purpose of mining, the
lease providing that all timbers
placed in the shafts should be re-
garded as fixtures; and in case of a
surrender of the lease the lessee
would permit a re-entry before the
actual surrender to install pump-
ing machinery, and that the lessor
should have the right to buy all
mining machinery and buildings
erected during the term, and if he
did not purchase them, the lessee
should have sixty days after the
termination of the lease within
which to make a renewal of them.
Another clause provided for a leas-
ing by the lessor of the premises,
machinery and appurtenances. It
was held that the machinery '•and
appliances on the land were trade
fixtures, placed there by the lessee,
did not at once become a part of
the freehold, but that the lessee had
such an interest in them that he
could place a chattel mortgage
upon ; yet upon the lessor recover-
ing possession of the land by sum-
mary proceedings for non-payment
of rent, before the removal of such
trade fixtures and without an asser-
tion of a right by the lessee to re-
move them or his mortgagee, they
became the lessor's property as a
jjart of the freehold, and the mort-
gagee could not thereafter remove
them. Massachusetts National Bank
V. Shinn. 18 N. Y. App. Div. 276;
46 X. Y. Supp. 329.
One who erects a building on an-
other's land by license may remove
it, if its removal be practicable and
works no serious injury to the land,
on the termination of the license.
Ingalls V. St. Paul, M. and M. Ry.
Co., 39 Minn. 479; 40 N. W. Rep.
524.
If one in possession of land, un-
der contract of purchase, volun-
tarily erects a house thereon, with-
out either an express or implied
agreement with the land owner that
it shall remain personal property,
it becomes part of the realty, and
belongs to the owner of the soil.
Kingsley v. McFarland. 82 Me. 231;
19 Atl. Rep. 442.
OIL AND GAS LEASE FIXTURES. 649
ance of the house."" A gas compam' which has condemned a
right of way for its line may enter and remove its pipe line
when the supply of gas has failed ; hut it must remove them at
a time and in a manner least harmful to the land owner, and
subject to the payment of a compensation for any actual injury
to growing grain or grass. Should the field be a meadow, then
it must pay for all substantial injuries to the turf beyond the
mere opening and filling of the trench in which the pipe lies."'
The right to remove them is made to hinge on the failure of
gas.""* Pipe lines of artificial and natural gas companies laid in
the street, with the consent of the municipality, remain the per-
sonal property of the company."" But where the pipe line was
Iniried two and a half to three feet on land of persons from
whom the pipe line company had, by deed, acquired a right of
way, and was used to carry crude petroleum, it was held that it
was '' real estate " within the meaning of the I^ew Jersey tax
law.'" A gas company that lays a pipe line through lands with-
out permission of the owner is not entitled to maintain a suit
against the land owner to enjoin him from removing it; for
by its act of placing it in the soil he became the owner of it, and
the pipe line cannot be treated as a fixture.^^
C6 Philbrick V. Ewing. 97 Mass. C. 466; Regina v. West Middlesex
133. W. W. Co., 1 E. and E. 71G; Shef-
«i- Clements v. Philadelphia Co., field United Gas Co. v. Sheffield, 4
184 Pa. St. 28; 38 Atl. Rep. 1090; B. and S. 13.5.
28 Pitts. L. J. (N. S.) 344; 41 W. eo Memphis Gaslight Co. v. State,
N. C. 321; 39 L. R. A. 532. 6 Coldw. (Tenn.) 310.
OS In England gas pipes in the "o State v. Berry, 52 N. J. L. 308;
ground are taxed or rated to the 19 Atl. Rep. 665.
proprietors in the parish where they In Texas poles, wires and lampa
are laid, although the ownership of of an electric lighting company
the land itself may be in other in- erected in the street for lighting
dividuals. It is held that the pro- purposes, are real property. Keat-
prictors of the pipes are in the pos- ing, etc., Co. v. Marshall, etc., Co.,
session of the space they occupy. 74 Tex. 605 ; 12 So. W. Rep. 489.
Regina v. Rockdale W. W. Co., 1 7i Windfall, etc.. Co. v. Terwilli-
M. and S. 634; Regina v. Birming- ger, 152 Ind. 364; 53 N. E. Rep.
ham Gas Co., 1 B. and C. 506; Re- 284.
gina V. Brighton Gas Co., 5 B. and
CHAPTER XXVIII.
NUISANCES.
§580. Scope of chapter.
§581. Pollution of well or spring by artificial gas.
§582. Pollution of running streams.
§583. Pollution of subterranean waters.
§584. Damages occasioned by storing or bringing oil on land.
§585. Gases destroying trees and vegetation.
§586. Noisome smells. ^
§587. Odors from operation of oil wells and works.
§588. Other disagreeable odors in neighborhood.
§589. Degree of annoyance. — Question for jury.
§590. Gas or oil well near house or building.
§591. Business authorized by government no defence.
§592. Duty of owner to prevent continuance of damages.
§593. Evidence.
§594. Injunction.
§595. Enjoining erection of gas plant.
§596. Former recovery a bar.
§597. Indictment for nuisance.
§598. Waste of natural gas or oil.
§580. Scope of chapter.
This chapter is limited to instances affecting gas and oil,
without any general discussion of the principles applicable to
ISTuisances, except as they may incidentally be noticed in con-
sidering particular instances.
§581. Pollution of well or spring by artificial g-as.
Most cases of nuisances with reference to the manufacture
and supply of gas have arisen out of the pollution of wells or
springs. Tf a company permit gas to escape from its reservoir
or pipes, and it percolates through the soil and enters a well or
650
NUISANCES. 651
spring, injuring the quality of the water, or poUuting the water
before it enters such well or spring, the gas company will be
liable to the owner for the damages thus done, and the fact that
other causes contributed to the injury of the water will not bar
an action for damages, though it may be shown to affect their
amount/ So if the wastings from the refuse of its gas worlcs
enter the well of an adjoining property owner, rendering it unfit
for household purposes or stock it will be liable, such pollution
being considered a nuisance." The company is liable where the
rains wash the deleterious substances from the refuse of the
works and the water runs along and enters the well or spring at
its mouth, corrupting the well or spring water, the same as if it
had soaked through the soil.'' A city operating gas works is
liable for the pollution of a well the same as a private corpora-
tion or an individual would be if it had l^een operating such
works.* A stockholder in the company injured by its act
may maintain a suit to abate the nuisance, even to enjoin
the continuation of the pollution.^ A lessee may also maintain
an action for the pollution of a well upon the demised prem-
ises ; *^ but his right of action is limited to recover for the
injury to his possessory interest, while the landlord must bring
the action for any injury to the reversion. '^ Directors of a gas
1 Sherman v. Fall River Works 228. In this case the court said:
Co., 5 Allen 213; Columbus Gas- "A municipal corporation owning
light Co. V. Freeland, 12 Ohio St. and occupying property for public
.392; Millington v. Griffiths, 30 L. uses is as much svibject as a private
T. 65; 23 Gas J. 215; Ottawa Gas- person to the rule, sic utere tiio ut
light Co. V. Graham, 28 111. 73; alienum non laedas. The city is as
Brown v. Illius, 25 Conn. 583; Kin- much bound as an individual owner
naird v. Standard Oil Co., 89 Ky. of a lot, to find an outlet for the
468; 12 S. W. Eep. 937; 7 L. R. A. water on it, without encroaching on
451. his neighbor."
- Pensacola Gas Co. v. Pebley, 25 s Hendrie v. Lea Bridge, etc., Co.,
Fla. 381; 5 So. Rep. 593; Hendrie 21 Gas J. 949, 989.
V. Lea Bridge, etc., Co., 21 Gas J. ^'S Hendrie v. Lea Bridge, etc., Co.,
949, 989. 21 Gas J. 949, 989.
3 Brown v. Illius, 27 Conn. 84 ; 6 Sherman v. Fall River Iron
Pottstown Gas Co. v. Murphy. 39 Works, 2 Allen 524. See Chapman
Pa. St. 257; Grange v. Pately, etc., v. South, etc., Co., 61 Gas J. 359,
Co., 14 Gas J. 309. 415, 460.
4 Shuter v. Philadelphia, 3 Phila.
652 OIL AT^^D GAS,
company have been held personally liable for damages caused
to a well by noxious substances escaping from the works of the
company of which they were such officers/ Where a statute
rendered a gas company*liable to a penalty which should " suffer
any wastings, etc., to be conveyed into any well," this was held
to render it liable though the well contaminated had been dis-
used by the owner for several years. It was also held that the
facts of non-user and the closing of the well because of its having
been polluted, even though coupled with the acceptance by the
owner of the use of substituted wells of the company, was not
such an abandonment of the former as to alter its character and
make it no longer a well, nor could a license to pollute it be
inferred from such a state of facts.^ The word " suffer " as
above quoted was applied to an instance of this kind, and the
company held liable. In 1854 a gas company erected a tank for
gas about one hundred and thirty feet from the plaintiff's well,
the site being selected by the company's engineer, and the tank
erected on solid sandstone with proper materials. The gas com-
pany knew mines in the neighborhood had been worked, but did
not know that they had been worked under or near any part of
their land. In 1838 there had been workings under half of the
company's land, and from 1848 to 1855 these workings had been
brought to within one hundred and eighty feet of the company's
tank. In consequence of these facts the bottom of the gas tank
cracked, and the wastings in it flowed out and through the soil to
the plaintiff's well. It was held that the gas company had suf-
fered the wastings to flow into the plaintiff's well, and were
liable within the meaning of the statute quoted.®
7Millington v. Griffiths, etc., Co., 10 Jur. (N. S.) 172; 9 L. T. (N.
30 L. T. 65; 23 Gas J. 215. See S.) 694; 12 W. R. 212.
Rex V. Medley, 6 C. and P. 292. Where the defense was that the
sMillington v. Griffiths, 30 L. T. plaintiff did not use the water be-
65; 23 Gas J. 215. fore it was befouled for domestic
9 Hipkins v. Birmingham, etc., purposes, but for washing and
Co., 5 H. and N. 74 ; 6 H. and ^. flushing purposes, and for such pur-
250; 9 Gas J. 63. 778; 30 L. J. poses it was as fit as if it had not
Exch. 60; 9 W. R. 168. See also been fouled, the judge trying the
Parry v. Croydon Gas Co., 15 C. B. case said: "A man is entitled to
(N. S.) 568; 11 C. B. (N. S.) 578; have the water for use in his own
XUISAXCES.
653
§582. Pollution of running streams.
Questions of the pollution of running streams raise more dif-
ficult questions than those relating to the pollution of wells or
springs. It is often difficult to reconcile the right of an upper
riparian land o^\mer to the use of the Avater passing in a stream
through his estate, in the development of his land, with the right
of a lower owner to receive the stream free from pollution. But
a distinction must be drawn between the use and abuse of a
running stream ; as for instance, w^here it has become polluted
by a usage of a part of the water which is returned to the stream
in a polluted state, and where deleterious substances are thrown
into it without any other use of it being made. Thus where
manufacturers of gas threw coal tar and other noxious sub-
stances on their gas works premises near a stream and they
percolated through the soil, into an adjoining river and rendered
its water impure, it was held that the lower riparian land owner
house, even though for the purpose
of washing or for the purpose of
flushing his drains, uncontaminated
by a disgusting smell of gas."
Batchellcr v. Tunbridge Wells Gas
Co., 6.5 J. P. 680; 84 L. T. 765.
A license to take water from a
well gives the licensee a riglit of
action for the disturbance of his
easement, but not for the well's
pollution. Ottawa Gaslight Co. v.
Thompson. 39 111. 598.
For similar cases, see Merrifield
V. Lombard. 13 Allen 16; Richmond
Mfg. Co. V. Atlantic DeLain Co.,
10 R. I. 106; Stockport W. W. Co.
V. Potter, 7 H. and X. 160; 7 Jur.
(N. S.) 880; 31 L. J. Exch. 9;
Pennington v. Brinsop Hall Co.. L.
R. 5 Ch. Div. 769; 46 L. J. Cli.
773. The owner of a well polluted
is not bound to cement it in order
to keep out the odors of gas or
drainage from the gas works. Co-
lumbus, etc., Co. V. Freeland, 12
Ohio St. 392.
In Ottawa Gaslight and Coke Co.
V. Graham, 28 111. 73, it was held,
in an action to recover damages for
pollution of a well, that in ascer-
taining the true measure of dam-
ages the jury must consider all tae
circumstances connected with the
injury, including the cost of secur-
ing a sufficient quantity of water
equally pure with that supplied
from the well before its injury,
the cost of keeping the conductors
and other machinery for so doing
in repair, and the depreciation of
the value of the property by reason
of the erection of the gas works,
but if the property would sell for
the same amount, independent of
a rise in similar property, then
there would be no loss, but if it
would not, then the difference would
be the damages sustained. See also
Ottawa Gaslight and Coke Co. v.
Graham, 35 111. 346.
654 OIL AND GAS.
was entitled to have the water in a pure condition ; and that the
gas company was liable." Pollutions arising from the working
of coal mines furnish very good instances of the first class of
instances we have referred to above. Thus where a mine owner
used the water of a stream running through or by his premises
to wash iron ore taken from his mine, without which right to so
use the water the mine would be valueless, the stream being the
only available water, and after using the water taken from the
stream returned it, there being no other outlet for it, he resort-
ing to the customary and best means of purifying it before
permitting it to flow back into the stream, it was held that the
interest of the public and of an important industry was such
that the general rule with reference to the pollution of streams
must be modified so as not to destroy that interest and such
industry. '' But there is a limit," said the court, " to this duty
to yield, to this claim and rignt to expect and demand. The
water course must not be diverted from its channel, or so dimin-
ished in volume, or so corrupted and polluted, as practically
to destroy, or greatly to impair its value to the lower riparian
owner." ^^ In a Pennsylvania case it appeared that a coal mine
owner, in the operation of his mine, pumped the water from a
stream and returned it in such a state as to render the entire
stream useless for domestic purposes ; and it was held that the
lower owner was without a remedy, his rights ex necessitate giv-
loCarhart v. Auburn Gaslight merer, 144 Pa. St. 509; 22 Atl. Rep.
Co., 22 Barb. 297; Rex v. Medley, 970; Elder v. Lykens Valley Coal
6 C. and P. 292 (indictment) ; Rob- Co., 157 Pa. St. 490; 27 Atl. Rep.
inson v. Coal Co., 50 Cal. 460; Peo- 545; Hindson v. Markle, 171 Pa. St.
pie V. Gold Run, etc., Co., 66 Cal. 138; 33 Atl. Rep. 74.
138; 4 Pac. Rep. 1152. A city, under a statutory power
11 Tennessee, etc., Co. v. Hamil- to sue to restrain a nuisance to
ton, 100 Ala. 252; 14 So. Rep. 167; water courses connected with its
Bear River, etc., Co. v. N. Y. Min- water works, cannot, as a public
ing Co., 8 Cal. 327; Satterfield v. agent, sue to restrain a public
Rowan, 83 Ga. 187; 9 S. E. Rep. nuisance, such statute merely au-
677; Edwards v. Allouez Mining thorizing it to sue as an individual
Co., 38 Mich. 40; Nelson v. 0'Ne»l, might for the protection of its pri-
1 Mont. 284 ; Columbus, etc., Co. v. vate property. Newark, etc., Board
Tucker, 48 Ohio St. 41; 26 N. E. v. Passaic, 45 N. J. Eq. 393; 18
Rep. 630; Brown v. Torrence. 88 Atl. Rep. 106.
Pa. St. 186; Gallagher v. Kern-
NUISANCES. 655
ing way to the interests of the community, in order to permit
the development of the natural resources of the country. In
passing on the case the court said : " It will be observed that
the defendants have done nothing to change the character of
the water, or to diminish its purity, save what results from the
natural use and enjoyment of their own property. They have
brought nothing on to the land artificially. The water as it is
poured into Meadow Brook is the water which the mine nat-
urally discharges ; its impurity arises from natural, not artificial
causes. The mine cannot, of course, be operated elsewhere
than where the coal is naturally found, and the discharge is a
necessary incident to the mining of it. It must be conceded,
we think, that every man is entitled to the ordinary and natural
use and enjoyment of his property. The defendants, being the
owners of the land, have a right to mine the coal. It may be
stated, as a general proposition, that every man has the right to
the natural use and enjoyment of his own property, and if whilst
lawfully in such use and enjoyment, without negligence or
malice on his part, an unavoidable loss occurs to his neighbor,
it is damnum absque injuria, for the rightful use of one's own
land may cause damage to another without any legal wrong.
Mining in the ordinary and usual form is the natural user of
coal lands ; they are, for the most part, unfit for any other use.
' It is established,' says Cotton, L. J., in West Cumberland Iron
Co. V. Kenyon,^- ' that taking out mineral is a natural use of
mining property, and that no adjoining proprietor can complain
of the result of careful, proper mining operations.' In the same
case, Brett, L. J., says : ' The cases have decided that where
the maxim sic utere tuo ut alienum non laedas is applied to
landed property, it is subject to a certain modification ; it being
necessary for the plaintiff to shoAv, not only that he has sustained
damage, but that the defendant has caused it by going beyond
what is necessary in order to enable him to have the natural use
of his own land.' The right to mine coal is not a nuisance in
itself. It is, as we have said, a right incident to the ownership
of coal property, and when exercised in the ordinary manner,
12 L. R. 11 Ch. Div. 782; 48 L. J. Ch. 793; 40 L. T. 703.
656 OIL AND GAS.
and with due care, the owner cannot be held liable for permit-
ting the natural flow of mine water over his own land, into the
water course, by means of which the natural drainage of the
country is affected. There are, it is well known, percolations of
mine water into all mines ; whether the mine be operated by tun-
nel, slope or shaft, water Avill accumulate, and, unless it can be
discharged, mining must cease. The discharge- of this acidu-
lated water is practically a condition upon which the ordinary
use and enjoyment of coal lands depends ; the discharge of the
water is therefore part and parcel of the process of mining, and
as it can only be effected through natural channels, the denial of
this right must inevitably produce results of a most serious char-
acter to this, the leading industrial interest of the State. The
defendants were engaged in a perfectly lawful business, in
which they had made large expenditures, and in which the inter-
ests of the entire community w€ffe concerned ; they were at lib-
erty to carry on that business in the ordinary way, and were not,
while so doing, accountable for consequences which they could
not control ; as the mining operations went on, the water by the
force of gravity ran out of the drifts and found its way over
the defendant's own land to the MeadoAv Brook. It is clear that
for the consequences of this flow, which by the mere force of
gravity, naturally, and without any fault of the defendants, car-
ried the water into the brook and then to the plaintiff's pond,
there could be no responsibility as damages on the part of the
defendants. But it does not appear from any evidence in this
cause, that the mine was conducted by the defendants, in any
but- the ordinary and usual mode of mining in this country.
The deeper strata can only be reached by shaft, and no shaft
can be worked until the water is drawn. A drift is in some
sense an artificial opening in the land and accumulates and dis-
charges water in a greater volume and extent than would other-
wise result from purely natural causes, yet mining by drift has,
as we have seen, been held to be a natural user of the land. So,
too, we think, according to tire present practice of mining, the
working of the lower strata by shaft, in the usual and ordinary
way, must be considered the natural user of the land for the
taking out of the coal, which can be reached by shaft only;
NUISAlSrCES.
657
and, as the water cannot he discharged by gravity alone, it must
necessarily, as part of the process of mining, be lifted to the
surface by artificial means, and thence be discharged through the
ordinary natural channels for the drainage of the country. We
do not say that a case may not arise in which a stream, from
such pollution, may not become a nuisance, and that the public
interests as involved in the general health and well being of
the community may not require the abatement of that nuisance.
This is not such a case ; it is shown that the community in and
around the city of Scranton, including the complainant, is
supplied with abundant pure water from other sources ; there
is no complaint as to any injurious effects from the water to the
general health ; the community does not complain on any
grounds. The plaintiff's grievance is for a mere personal in-
convenience, and we are of opinion that mere private personal
inconvenience, arising in this way and under such circum-
stances, must yield to the necessities of a great public industry,
which, although in the hands of a private corporation, sub-
serves a great public interest. To encourage the development
of the great natural resources of a country, trifling inconven-
iences to particular persons must sometimes give way to the
necessities of a great community." ^^ A case of polluting a
stream of water in the operation of an oil well arose in this
same State. The owner of the well in boring it pumped a
large quantity of salt water from it, into a storage tank, and
this he drew off and allowed to flow by a natural depression
over plaintiff's adjoining land. The plaintiff afterwards di-
verted it into a neighbor's brook, by plowing a ditch on his own
land along the line of depression, thus rendering the water in
the brook unfit for use. The owner of the well claimed he was
exempt from liability under the case just quoted from, but the
court did not so consider the matter, and in passing on the case
said: " If the expense of preventing the damage ... is
such as practically to counterbalance the expected profit or bene-
fit, then it is clearly unreasonable, and beyond what he could
13 Pennsylvania Coal Co. v. San- ed in 86 Pa. St. 401, and in 94 Pa.
derson, 113 Pa. St. 126; 6 Atl. Rep. St. 302.
453; overruling same case as report-
658 OIL AND GAS.
justly be called upon to assume. If, on the other hand, how-
ever, large in actual amount, it is small in proportion to the
gain to himself, it is reasonable in regard to his neighbor's
rights, and he should pay it to prevent damage, or should make
compensation for the injury done. Between these two extremes
lies a debatable region where the cases must stand u^wn their
own facts, under the general rule that can be laid down in ad-
vance, that the expense required would so detract from the
purpose and benefit of the contemplated act as to be a sub-
stantial deprivation of the right to the use of one's own prop-
erty. If damages could have been prevented short of this, it is
injuria which will sustain an action." ^* But where the rights
of the public are concerned, a different rule prevails than in
instances of a private character. Thus where oil land owners
in operating the land for oil, after the separation of the oil
from the salt water, permitted tile latter to run out upon the
surface, and then to run into a stream from which a city drew
its water supply, which was thereby rendered unfit for domestic
use, the rules laid down above were held t'^ not apply, the rights
of the public standing on higher groimd than the personal in-
convenience and injury of a private citizen. The fact that the
city was furnished water by a private corporation was held not
to lessen the right of the public to insist that the water should
not be polluted ; but the court, in reversing the case, ordered
an intpiiry into the extent and value of the oil operations,
whether the wells could be worked without the pollution of the
stream, whether the water works company could obtain a sup-
ply elsewhere, and the probable expense. ^^
§583. Pollution of subterranean waters.
A somewhat different rule applies to liability for the pollu-
tinu of subterranean currents or streams of water. An English
"'PfoifTor V. Brown, 105 Pa. St. Indictment lies for a pollution
'-• (i7 : :iO Atl. Rep. 844; Hindson v^ of a river with the refuse of gag
^^[■.iiklo. 171 Pa. St. 138; 33 Atl. works. Rex v. Medley, 6 C. and
Kep. 74. P. 292. See Manhattan Gaslight
15 Commonwealth v. Russell, 172 Co. v. Barker, 7 Robt. (N. Y.) 523.
Pa. St. 506.
NUISANCES. 659
case furnishes an illustration of the modern rule with reference
to the pollution of underground currents. The water for two
wells, owned by two persons, was drawn from the same strata.
The water in the lower well rose by natural pressure to within
twenty-seven feet of the surface, and was then pumped out.
This well was befouled by sewerage poured into the upper well
by its owner. It was held that the owner of the lower well
was entitled to an injunction tx3 restrain the owner of the upper
well from pouring sewage into it, or permitting it to run in —
to prevent him so using his well as to pollute the lower well —
and to recover damages for the injury he had already suffered.
In passing on the case the court used the following language,
from which it appears that the true cause of action was that the
owner of the polluted well allowed his impure sewage to escape
from his premises to the lower premises ; and the fact that it
reached the lower premises by an underground current instead
of a surface stream was quite immaterial . " But it is equally
clear that everyone has a right to appropriate percolating
water, at all events whilst it is under his land. Xo one has any
property in it — no one has any right to have it come on to
his land, but everyone has an unlimited right to appropriate it
whilst it is under his land, and may take it all, so as to prevent
it going on to the land of others. His neighbor also below
him has an equal right, before the person above has taken and
appropriated it, to take it all. He has a right to take it to the
extent that he may cause the water of the land above to come
upon his land and to take it so, as to absolutely dry the land
above. Therefore no one has any property in percolating
water, but everyone has a right to appropriate the whole of it.
Then arises the question as to whether, in respect of such water,
any of those persons has any right whatever as against the
others. I take it that this percolating water is a common reser-
voir or source in which no one has any property, but from which
anyone lias a right to appropriate any quantity,-. Then the
question is whether anyone who has that unlimited right at ap-
propriation, but has no greater rights than any of the others
who have it, has a right to contaminate the common reservoir,
or whether he is bound not to do anything which shall prevent,
660 OIL AND GAS.
not only his immediate neighbors, but anyone of those who have
that unlimited right, from obtaining its true value. It is said
that the defendant in polluting this common source, did not pol-
lute that in which the plaintiff had any property. That is
true. If all the plaintiff can show is that the common source
was contaminated, he cannot before he has appropriated any
part of it, maintain any action in respect of the contamination.
I do not think that a man can, by experimenting off or on his
own land, and finding that the water was contaminated before
it came on to his land, maintain an action, for the water did not
belong to him, and he had not appropriated it. But it docs not
follow that he cannot maintain an action when he has appropri-
ated it, and finds that the water which he had a right to ap'-
propriate, has been contaminated by that Avliich another person
has done to the common source ; that is, although no one has
any property in that source, yet4inasmuch as everyone has a
right to appropriate it, he has a right to appropriate it in the
natural state, and no one has a right to contaminate the common
source so as to prevent his neighbor having his right of ap-
propriation. The next point was that, assuming that to be true,
yet, if the person who has that right of appropriation can only
exercise it, or has done so by artificial means, the water he
took would not have been contaminated, then the percolate''
water Avhich he got, must be said to have been polluted by his
act, and, therefore, he could not maintain an action. I cannot
think that that is a true proposition. The question of natural,
as distinguished from unnatural user, never applies to a plain-
tiff. ' A man has a right to exercise that natural user with all
the skill of which he is capable. That question is applicable to
a defendant. Therefore, it seems to me, that as long as a plain-
tiff does not use any means which, as regards his neighbor, are
unlawful, but only uses lawful means, however artificial or
extensive those means may be, he has a right to use them, and
tlic right to appropriate the common source is not diminished
hy reason of using those meaits. Therefore, however he may
appropriate the water from the common source, he has a right
to have that source uncontaminated by any act of any other per-
son. The question of natural or unnatural user only goes to
NUISANCES. 661
this, that, although a defendant does contaminate water or any-
thing else which goes on to his neighbor's land, yet, if that act
is only the natural user of the land, then, although by that act
he does injure his neighbor, he is not liable, because otherwise
he cannot use his land at all. I must say, further, with regard
to this common source in respect of Avhich a right of appropria-
tion belongs to every one, the question does not depend upon
persons being contiguous neighbors, but if it can be shown that
in fact the defendant has contaminated the common source, it
signifies not how far the plaintiff is from him, if it is proved
that he has been injured by what the defendant has done." ^^
There are cases, however, which hold that a land owner is not
liable to another land owner injured by noxious substances
placed on his land which penetrate to subterranean streams and
are carried on to the land of such other land owner by such
streams, to his damage ; and the fact that he continues to place
such noxious substances on his land after he is informed of the
damage they are inflicting upon his neighbor, will not render
him liable for tlie damage inflicted after receiving such notice. ^^
But the true rule would seem to be that the pollution of subter-
ranean streams will not render anyone causing it liable until
he is informed of the damage such pollution is causing, and
from thence on he will be liable.^"*
§584. Damages occasioned by storing or bringing oil on land.
Every one who brings oil or stores it on land must confine it
securely in pipes, tanks or reservoirs, or at least not permit ii
to escape on to the land of another, whether by flowing over
16 Ballard v. Tomlinson, 29 Ch. Dillon v. Acme Oil Co., 49 Hun
Div. 115; 54 L. J. Ch. 454; 52 L. 5G5.
T. 942; 33 W. R. 533; 49 J. P. is Pennsylvania Coal Co. v. San-
692; 24 Am. L. Reg. 634. See derson, 113 Pa. St. 126; 6 Atl. Rep.
Womersley v. Church, 17 L. T. (N. 453. See Kennard v. Standard Oil
S.) 190; King V. Oxford Co-opera- Co., 89 Ky. 468; 12 S. W. Rep.
tive Society, 51 L. T. 94; Ball v. 937; 7 L. R. A. 451, where knowl-
Nye, 99 Mass. 582; Carhart v. An- edge that its oil was damaging a
burn Gaslight Co., 22 Barb. 297. spring of water was held not neces-
17 Brown v. lUius, 27 Conn. 84; sary, in order to render the oil com-
pany liable.
662 OIL AND GAS.
the surface or percolating through the soil, and if he do not,
even though guilty of no negligence, he will be liable for what-
ever damages is suffered by the oil escaping.^" This is true
of a refining company, although the business of relining oil is
perfectly legitimate ; yet it must not permit the oil to escape
from its premises. '" If the owner of the oil contaminate on
his own ground the sources of a spring or well on the ground of
another, by spilling or pouring oil upon his own ground, he will
be liable to the owner of such spring or well, to the extent of
the damage done.^^
§585. Gases destroying trees and vegetation.
The fumes and gases flowing from the manufacture of gas are
often so strong and noxious as to destroy or injure vegetation
and crops. When such is the case the person injured is not only
entitled to recover damages which he has thus suffered, but also
may maintain an action to enjoin the further manufacture of
gas in a manner injurious to his trees, vegetation or crops ; and
usually mere delay in bringing the suit cannot be taken as an ac-
quiescence in the conduct of the gas manufacturer.'^ But where
vapors from large copper works were injurious to trees, the
court instructed the jury that, although every man must so use
his property as to not injure the property of another, yet the law
did not regard trifling inconveniences ; that everything must be
looked at from a reasonable point of view, and therefore in a
case of injury occasioned by noxious vapors from a manufac-
tory, to be actionable, the injury must be such as to visibly
19 Hauck V. Tidewater Pipe Line lis, etc., Co., 60 Minn. 296 ; 62 N. \V.
Co., 153 Pa. St. 366; 26 All. Rep. Rep. 336; Brady v. Detroit, etc.,
644; 20 L. R. A. 642; McGregor v. Co., 102 Mich. 277; 62 N. W. Rep.
Camden, 47 W. Va. 193; 34 S. E. 687; 26 L. R. A. 175.
: Rep. 936. 22 Broadbent v. Imperial Gaslight
2oGavigan v. Atlantic Rep. Co., Co., 7 H. L. Cas. 600; 3 Jur. (N.
186 Pa. St. 604; 40 Atl. Rep. 834; S.) 221; 5 Gas J. 342; 9 Gas J.
Contra, Dillon v. Acme Oil Co., 49^' 751; affirming 7 DeG. M. and G.
Hun 565. 436; 26 L. J. Ch. 276; 5 Jur. (N.
siKennard v. Standard Oil Co., S.) 1319; Sholts Iron Co. v. Inglis,
89 Ky. 468; 12 S. W. Rop. 937; 7 L. R. 7 App. Cas. 518.
L. R. A. 451; Berger v. Minneapo-
NUISANCES. 663
diminish the value of the property ; that the locality and all other
circumstances must be taken into consideration, and in vicini-
ties where great manufacturing works had been and were being
carried on, parties niust stand on extreme rights. On appeal
this direction was held to be a correct statement of the law."^
Where the damages are slight, or out of all proportion to the
damages that would be inflicted by enjoining the manufacture
of the product sought to be enjoined, the court will refuse the
injunction and leave the complainant to his action for dam-
ages.^* Damages have been allowed for grain injured by gases
escaping from a brick kiln,"^ so from coke ovens.^®
§586. Noisome smells.
Unwholesome and noisome smells proceeding from the manu-
facture of gas will render the manufactor liable in damages,
if sufficient to produce deleterious results upon the persons liv-
ing in the region affected by them. " Gas works," said the
court, " are to be placed in the class of erections which are not
within the ordinary and usual purposes to which real estate is
applied, and whenever they create a special injury they are to
be regarded as a private nuisance, for which an action will lie
in respect to the special injury, e. g., a swine sty,"^ a lime kiln,^^
a dye house, "^ a tallow chandler, a furnace,^" a coke oven,'^^"
a brew liouse.^^ a fertilizing plant, *^^ or a tannery.^" It is suf-
23 St. Helen's Smelting Co. v. bell v. Seaman, 63 N. Y. 568; 20
Tipping, 11 H. L. Cas. 642; 35 L. J. Am. Rep. 567.
Q. B. 66; 11 Jur. (N. S.) 785; 12 2g Robb v. Carnegie, 145 Pa. y^^.
L. T. (N. S.) 776; 13 W. R. 1083. 324; 22 Atl. Rep. 649; 14 L. R. A.
See Sturges v. Bridgman, 11 Ch. 329.
Div. 852; 48 L. J. Ch. 785; 41 L. T. 27 9 Rep. 59.
219; 28 W. R. 200. 28 2 Black 141.
24 Cooke V. Forbes, L. R. 5 Eq. 29 Hutt 136.
166; 37 L. J. Ch. 178; 17 L. T. so Cro Car 570.
(N. S.) 371; Attorney General v. *3o McClung v. North Bend, etc.,
^Manchester Corporation [1893], 2 Co., 31 Wkly. L. Bull. 9; 9 Ohio
Ch. 87; 62 L. J. Ch. 459; 68 L. T. Cir. Ct. Rep. 259; 6 Ohio Cir. Dec.
608; 41 W. R. 459; 57 J. P. 343; 3 243; 1 Ohio Dec. 247.
R. 427. 31 R. Pal. 139; Hutt 136.
25 Fogarty v. Junction City, etc., *3i Fertilizing Co. v. Hyde Park,
Co., 50 Kan. 478; 31 Pac. Rep. 97 U. S. 659.
1052; 18 L. R. A. 756. See Camp- 32 Carhart v. Auburn Gaslight
664 OIL AND GAS.
ficient that the manufacture of gas creates smells, smokes, and
noxious odors, so annoying to an individual residing near the
company's works as to render his premises uncomfortable for
habitation. In such an instance there is a private nuisance, for
which the company is liable.^^ It is immaterial that the gas
company used due care to prevent the escape of gas; for it is
the invasion of the premises of another that gives the right of
action.^* The rule extends even to the manufacturers of fer-
tilizers and phosphates from which gases escape and affect the
paint of houses nearby, and eat the nails of shingles so as to
render them loose, and make living in the house uncomfortable
and unhealthy, or has driven away customers from the plain-
tiff's store.^''^ Mere annoyance may not, however, be sufficient,
especially if the action is to enjoin the use of the plant. Some
gas will necessarily escape ; and anjr'smell of gas is annoying,
though not necessarily unhealthy to that degree that it will
affect the health of the person it reaches.^*' Indeed, the rule has
been laid down that to entitle the owner of a dwelling to dam-
ages from the storing of oil adjacent to his house, he must suffer
substantial and actual injuries in the necessary and reasonable
use of his house, his physical comfort or his health, and that
mere discomfort and inconvenience are not sufficient to entitle
Co., 22 Barb. 297, citing Thomas v. Jarvis Gas Co., 122 N. Y. 18; 25
Braekney, 17 Barb. 654. See Butch- N. E. Rep. 246; 9 L. R. A. 711;
ers' Union Co. v. Crescent, etc., Co., Rosenheimer v. Standard Gaslight
111 U. ■ S. 746. Co., 36 N. Y. App. Div. 1; 55 N. Y.
33 Ottawa Gaslight Co. V. Thomp- Supp. 192; People v. New York,
son, 39 111. 598; Pottstown Gas Co. etc., Co., 64 Barb. 55; Carmichael
V. Murphy, 39 Pa. St. 257; Cleve- v. Texarkana, 94 Fed. Rep. 561;
land V. Citizens' Gaslight Co., 20 Grange v. Pately, etc., Co., 14 Gas
>i. J. Eq. 201; McGregor V. Camden, J. 309; Ottawa Gaslight Co. v.
47 \V. Va. 193; 34 S. E. Rep. 936
Robb V. Carnegie, 145 Pa. St. 324
•<2 Atl. Rep. 649; 14 L. R. A. 329
Graham, 28 111. 73; Friburk v.
Standard Oil Co., 66 Minn. 277; 68
N. W. Rep. 1090.
Dorr V. Dansville Gaslight Co., 18 <*• 35 Susquehanna Fertilizer Co. v.
Hun 274. Spangler, 86 Md. 562; 39 Atl. Rep.
34 Hauck V. Tidewater, etc., Co., 270.
153 Pa. St. 366; 26 Atl. Rep. 644; 30 Pottstown Gas Co. v. Murphy,
20 L. R. A. 642; Bohan v. Port 39 Pa. St. 257.
NUISAXCES. 665
him to relief.^^ If the manufacture of the gas be a continuing
injury, a court of equity will restrain its manufacture in a
manner injurious to the plaintiff or his property.^^ Injunc-
tion, however, w^ill not be granted to restrain the drilling of a
gas well near a dwelling house, on account of the prospective
noise, stench, pollution of the air, and the danger from fire,
explosion, and lightning that would result from the operation of
the well at that place, or on account of the overflow of water or
oil from it, at least where it is not certain that any water, oil,
or gas will be found there ; and it is not shown that the gas well
could not be so managed as not to be more than slight or barely
possible danger or annoyance.^^
§587. Odors from operation of oil wells and works.
The owner of property injured by the operation of oil wells
or works is not confined to instances where the oil actually en-
ters upon his premises ; but he may recover because of noxious
odors occasioned by their operation, rendering his premises un-
healthy or objectionable to live upon. Slight evidence is suffi-
cient to make out a case for the jur)\ Thus where it was
shown that an oil company spilled oil on its own land adjoining
a lot on which a residence was located, and the wind blowing
from the direction of the oil premises rendered the residence
37 Gavigan v. Atlantic Refining Bend, etc., Co., 9 Ohio Cir. Ct. Rep.
Co., 3 Lack. L. News 371. See this 259.
case on appeal. See Friburk v. so Windfall Mfg. Co. v. Patter-
Standard Oil Co., GG Minn. 277; 68 son, 148 Ind. 414; 47 N. E. Rep.
N. W. Rep. 1090. 2; 37 L. R. A. 381; 62 Am. St. Rep.
38 Broadbent v. Imperial Gaslight 532.
Co., 7 H. L. Cas. 600; 3 Jur. (N. The gas company cannot escape
S.) 221; 9 Gas J. 751; affirming 7 liability by showing that the plain-
De Gex, M. and G. 436; 26 L. J. tiff' produced other noxious odors in
Ch. 276; 5 Jur. (N. S.) 1319; his business which contributed to
Wragg V. Commercial Gas Co., 33 render his premises unwholesome,
Gas J. 119, 313; Attorney General unless it is also shown that the
V. Gaslight Co., L. R. 7 Ch. Div. injury complained of was the re-
217; 47 L. .J. Ch. 534; 37 L. T. suit of the combinations of both of
746 ; 26 W. R. 125. See Butt v. the noxious odors, and that those
Imperial Gaslight and Coke Co., L. created by the gas company were not
R. 2 Ch. 1.58; 14 L. T. R. 349; 15 independently offensive. Brown v.
Gas J. 139; McClung v. North Illius, 27 Conn. 84.
666 OIL AND GAS.
unhealthy to the occupants, his family suffering in consequence
thereof, it was held that there was a case made for the jury.*"
Anything that deprives the occupant of the full use and enjoy-
ment of his property, as making him or his family sick, is ac-
tionable, even though the business be a lawful one.*^ The
damages may be occasioned merely by the offensive odors, the oil
never reaching the premises of the plaintiff, and "the recovery
may be not only for discomforts suffered,*' but even damages
to his business, by driving away customers.*^ Naphtha tanks
may give such offensive odors as to render damages to a nearby
residence, and give the owner a cause of action for them.** In
order to entitle an owner of a dwelling to damages occasioned
by the storage of oil adjacent it, he must show that he has
suffered actual and substantial injuries in the reasonable and
necessary use of his home to his physical comfort or his health,
and it is not enough to show mere^inconvenience and discom-
fort.*'
§588. Other disagreeable odors in neighborhood.
On the principle that one man cannot justify his conduct by
the wrongful conduct of another, it is no defense, in an action
to enjoin the operation of gas works in a certain manner, that
the neighborhood already contained establishments devoted to
noxious and disagreeable trades, unless by long continuance
such neighborhood has been so entirely given up to such estab-
40 Friburk v. Standard Oil Co., 44 Bohan v. Port Jervis Gas Co.,
66 Minn. 277; 68 N. W. Rep. 1090; 122 N. Y. 18; 25 N. E. Rep. 246;
Hauck V. Tidewater Pipe Line Co., 9 L. R. A. 711.
153 Pa. St. 366; 26 Atl. Rep. 644. 45 Gavigan v. Atlantic Refining
4iGavigan v. Atlantic Ref. Co., Co., 3 Lack. L. News 371; 2 Lack.
186 Pa. St. 604; 40 Atl. Rep. 834. L. News 239. See this case in 40
42Berger v. Minneapolis, etc., Co., Atl. Rep. 834; 186 Pa. St. 604.
60 Minn. 296 ; 62 N. W. Rep. 336. Merely allowing oil to stand in a
43 Brady v. Detroit, etc., Co., 102 pipe line lawfully laid beneath the
Mich. 277; 60 N. W. Rep. 687; 26 ^surface of the street is not a nuis-
L. R. A. 175. There must be evi- ance, even so volatile oil as naph-
dence to show the loss to the busi- tha. Lee v. Vacuum Oil Co., 54
ness. Keiser v. Mahanoy Gas Co., Hun 156; 7 N. Y. Supp. 426.
143 Pa. St. 276; 22 Atl. Rep. 759.
NUISANCES.
667
lishments thati an addition to them would not add to the dis-
comfort.**^ And the fact that the well, for the pollution of
which the action was brought to recover damages, had also been
polluted by another substance getting into it, will not prevent
the owner recovering such damages as the gas company actually
caused by its negligent conduct.*'
§589. Degree of annoyance. — Question for jury.
It is not every annoyance that will give a right of action to
the person annoyed. A nuisance is a " thing which will offend
an ordinary man, and not a delicate-nosed person." ** There
are many persons who would be annoyed by gas works being
built in the near neighborhood to their dwelling, while others
would regard it as a matter of indifference. In instances of
charges of nuisance the question is whether the acts done would
annoy the average man — they might annoy some and not annoy
others like situated ; and it is a question for the jury *^ what
amount of annoyance will constitute a nuisance that will give a
cause of action to the person annoyed. A property owner is
entitled to enjoy his property as it was before the gas works
were erected ; but it is error to say that he, in the enjoyment of
his property is entitled to the same enjoyment as that ordinarily
enjoyed by other persons in his neighborhood similarly situated,
for the actual question for the jury is not a comparison of his
condition with that of his neighbors, but whether the conduct of
the gas company caused him an actual damage.^" A gas com-
pany is responsible in damages for the ordinary smells that
usually proceed from such works if they constitute a nuisance ;
and the fact that it is not negligent does not protect it from
liability, if, even in its usual course of business, it injure
others. ^^
46 Cleveland v. Citizens' Gaslight Co.. 17 Gas J. 231. See Pottstown
Co., 20 N. J. Eq. 201. v. Murphy. 30 Pa. St. 257.
47 Sherman v. Fall River Iron 4n Rex v. Medley, 6 C. and P. 292.
Works, 2 Allen 524 ; 79 Am. Dec. so Columbus, etc., Co. v. Freeland,
/99. 12 Ohio St. 392.
48 Tilly V. Slough Gas and Coke si Pottstown Gas Co. v. Murphy,
39 Pa. St. 257.
668 OIL AND GAS.
§590. Gas or oil well near house or building.
The operation of a gas or oil well in close proximity to a
dwelling house or store may amount to a nuisance, the same as
the operation of a noisome trade. Each particular case must
stand upon its own facts. Thus, in one of the Circuit Courts
of Ohio it was held that the drilling and operation of an oil
well on a city lot, close to a dwelling house situated on the ad-
joining lot, was dangerous and annoying, practically destroying
the house for the purpose of living in it so long as the well was
operated ; and if it were shown that an action for damages would
he inadequate, a perpetual injunction would be granted, pro-
hibiting its operation.^" In Pennsylvania it was held that an
oil well located seventy feet and an oil tank eighty feet from a
dwelling house was not a nuisance pei' se ; but if the escape of
gases from it was so great as to re(]4iire the fires at times in the
house to be extinguished in order to prevent an explosion, then
the well became a nuisance in fact, and its operation might be
enjoined.^^ So in Indiana it was held that the drilling of a gas
well within one hundred and fifty-two feet of a dwelling house
would not be enjoined on account of the noise, pollution of the
air, danger from fire or explosion that would result from the op-
eration of the well, or on account of water or oil from the well,
if it be not shown with certainty that water, oil, or gas would
be found, and also if it be not shown that the gas well could not
be operated in such a manner as to avoid the injuries appre-
hended. '' In the case at bar," said the court, " the appellant,
in locating its brick and tile works, for which natural gas was
to be used as fuel, selected a place retired from all residences,
and there erected its plant and machinery at great expense.
The business so commenced was continued three years before
the appellees came and erected their dwelling upon land across
the highway from appellant's land and within 200 feet of its
])rick and tile works. Certainly, therefore, unless the works
should constitute a nuisance peruse, or unless they were so con-
ducted as to become a nuisance in fact, the appellees arc not
r.2 Cline v. Kirkbindoe. 12 Ohio C. Rs McGregor v. Camden, 47 W.
C. Dec. 517; 22 Ohio Cir. Kep. 527. Va. 193; 34 S. E. Rep. 936.
NUISANCES. 669
in a position to demand that equity restrain the appellant in the
use of its property. A nuisance per se, as the term implies, is
that which is a nuisance in itself, and which, therefore, cannot
be so conducted or maintained as to he lawfully carried on or
permitted to exist. Such a nuisance is a disorderly house, or
an obstruction to a highway, or to a navigable stream. But a
business lawful in itself cannot be a nuisance per se, although,
because of surrounding places or circumstances, or because of
the manner in which it is constructed, it may become a nuisance.
Certain kinds of business or structures, as powder houses, or
nitroglycerine works, are so dangerous to human life that they
may be maintained only in the most remote and secluded lo-
calities. Others, as slaughter houses and certain foul-smelling
factories, are so offensive to the senses that they must be re-
moved from the limits of cities and towns, and even from the
near neighborhood of family residences. Yet there must be
some proper place where every lawful business may be carried
on, without danger of interference on the part of those who, in
some slight degree, may be annoyed or endangered by the near-
ness of the objectionable occupation. Of course, all persons
have the right to insist that a business in any degree offensive
or dangerous to them shall be carried en with such improved
means and appliances as experience and science may suggest or
supply, and with such reasonable care as may prevent unneces-
sary inconvenience to them. By such care and improved meth-
ods and appliances, many occupations formerly regarded as
nuisances may now be carried on, even in populous neighbor-
hoods, without annoyance to anyone. So, an establishment in
some degree offensive, as a livery stable, may be kept so cleanly,
so free from anything to offend the sense of sight or of smell,
that the proprietor may invite his most fastidious visitors to
any part of it ; although the same establishment might also be
so kept as to be an abomination even to the passerby upon the
highway. It cannot be said that a plant for the manufacture
of brick and drain tile, or even a gas well sunk to supply fuel
for such a plant, is a nuisance per se. The business is lawful,
and, if located in a proper place, and conducted and maintained
670 OIL AND GAS.
in a proper manner, neither the plant nor the well can be treated
as a nuisance. Appellees voluntarily selected the neighborhood
of appellant's plant for their residence, three years after the ap-
pellant began business there ; and while this circumstance is
not controlling, yet it is one that must be taken into considera-
tion. iSTor will it be sufficient answer that appellant's gas well
was on the east side of the brick yard at the time the appellees
selected their home on a lot within 200 feet of the factory. Ex-
perience has shown that gas wells are of short life, and that,
after the failure of one well, another, in order to be successful,
must be located at a considerable distance from the first. It is
averred that there was room for but two wells on this twenty-
two-acre tract, and that the location of the proposed well is the
farthest possible from the first well and the best that could be
selected. It is, besides, admitted by the demurrer to the an-
swer that the appellee, Willard E^ Patterson, agreed that the
second well should be located within 150 feet of his house; and,
while it is possible that such agreement might not bind his co-
appellee, yet the circumstance shows that the appellant, in locate
ing its wells at the distance of 152 feet from the appellees'
dwelling, was proceeding carefully and with due regard to ap-
pellees' rights. Unless, therefore, it should be made to appear
that the gas well could not be so managed and maintained as
not to be of more than slight or barely possible danger or an-
noyance to appellees, it does not seem that they could have any
sufficient cause to ask that the sinking of the well be restrained.
The record does not show, nor have we any means of knowing,
that' a well at a distance of 152 feet, or over nine rods, from
a dwelling house, cannot be so maintained and cared for as not
to cause the injury and annoyance claimed to be threatened to
appellees in this case. It is remembered that before a court of
equity will restrain a lawful work, from which merely threat-
ened evils are apprehended, the court must be satisfied that the
evils anticipated are imminent, and certain to occur. An in-
Junction will not issue to prevent supposed or barely possible
injuries. In the case before us, it is not shown that even if the
gas well were in operation it could not be so managed and cared
NUISANCES.
G71
for as to avoid all the injuries apprehended. But, more than
this, there might never be any gas found in the well. This,
the appellees practically concede, when they recite that, al-
though gas might not be found, yet that oil, or even water,
coming from the well would be dangerous to their residence.
This is altogether too speculative. If the appellant company
is willing to invest its money in a well from which may be
brought to the surface of the earth an uncontrollable element
productive of the evils feared by appellees, it must be allowed
to do so at the hazard to itself of all the consequences for which
it would thus become liable. But if the well may be sunk, and
the gas, oil or water therefrom, if any, can be so controlled and
managed as to cause no appreciable injuries to appellees or to
any one else then such reasonable and lawful use of property
ought not to be prevented by the courts. To do so would be
sheer usurpation of arbitrary power." '^*
§591. Business authorized by government no defense.
A gas company cannot successfully defend against the charge
of a nuisance on the ground that its business has been author-
ized by the government or by the legislature, even though it be
chartered by a special act of the legislature and empowered to
conduct its business where its works are located. Such a char-
ter authorizes it to conduct its business in a lawful and not an
unlawful manner. Works authorized by the legislature and
carried on without negligence may in fact involve a nuisance
for which the company will be liable. Thus where in a special
act of parliament incorporating a gas company it was enacted
that the gas should be of a certain purity, it was held that the
company was not justified in causing a nuisance, even if the gas
could not be made of a sufficient purity without so doing.'^
54 Windfall Mfg. Co. V. Patterson, Rail Co., L. R. 4 H. L. 171; 38
148 Ind. 414; 47 N. E. Rep. 2; 37 L. J. Q. B. 265; 21 L. T. (N. S.)
L. R. A. 381; 62 Am. St. Rep. 532. 238; 18 W. R. 12 (vibration caused
55 Attorney General v. Gaslight without negligence, by the passing
and Coke Co.. L. R. 7 Ch. Div. 217; of trains after the railway is
47 L. J. Ch. 5.34; 37 L. T. 746; 26 brought into use) ; London, etc., R.
W. R. 125; Brand v. Hammersmith R. Co. v. Truman, 11 App. Cas. 45;
G72 OIL AND GAS.
But if the particular location of tlic gas company's works has
been expressly authorized by its charter or a statute, then the
person damaged must show that the company has been guilty
of negligence in the conduct of its works/'" The fact that a gas
company has a contract to light the streets of a city and that if it
bs enjoined it will not be able to carry out its contract with the
city, and virtually with the public, is no defense/^
^592. Duty of owner to prevent continuance of damages.
The o^\^ler of property whose rights to it have been wrongfully
invaded by a gas company is not required to take active steps
to abate the nuisance created or to lessen the damages. It can
neither justify its conduct nor lessen its liability by setting up
the property owner's failure to assume an active role in order
to reduce its liability. Thus, it was held that a - 'ell owner was
not bound to cement his well in owler to prevent foul water en-
tering it from the gas Avorks.^^ But if he does take active steps
to abate the nuisance or prevent the incurring of damages, in
an action for such damages as he has suffered, he may recover
whatever outlay he was put to, whether successful or not, in so
far as the efforts made might reasonably be expected to remedy
the evil.^" But he cannot recover for damages to his horses
occasioned by their drinking water polluted by a gas company,
55 L. J. Ch. 354; 54 L. T. 250; 34 IQZ; People v. N. Y. Gaslight Co.,
W. R. 657; 50 J. P. 388 (a yard 64 Barb. 55; 6 Lans. 467; Watson
for cattle traffic which was a nuis- v. Gas Co., 5 U. P. Q. B. (Can.)
ance to neighbors) ; Metropolitan 262; Bohan v. Port Jarvis Gaslight
Asylum District Managers v. Hill, Co., 45 Hun 257 ; Batehelder v. Tun-
6 App. Cas. 193; 50 L. J. Q. B. oridge, etc., Co., 84 L. T. 765; 65
353; 44 L. T. 653; 29 W. R. 617; J. P. 680.
45 J. P. 664 (a water right) ; Parry 56 Bohan v. Port Jarvis Gaslight
V. Croydon Gas Co., 15 C. B. (N. Co., 45 Hun 257.
S.) 568; 11 C. B. fN. S.) 578; 10 57 Terre Haute Gas Co. v. Teel,
Jur. (N. S.) 172; 9 L. T. (N. S.) 20 Ind. 131.
u94; 12 W. R. 212 (penalty); 58 Cleveland v. Citizens' Gaslight
Pottstown Gas Co. v. Murphy, 39 Co., 20 N. J. Eq. 201.
Pa. St. 257 ; Bohan v. Port Jarvis 59 Sherman v. Fall River Iron
Gas Co., 122 N. Y. 18; 25 N. '^ Works. 2 Allen 524; 79 Am. Dec.
Rep. 246; 9 L. R. A. 711; Rosenhei- 799. See Ottawa Gaslight and Coke
mer v. Standard Gaslight Co., 36 N. Co. v. Graham, 28 111. 73.
Y. App. Div. 1; 55 N. Y. Supp.
NUISANCES. 6T3
if he permit them to drink the water after he knows of its pollu-
tion/''*
§593. Evidence.
Evidence on the part of the gas company is not admissible to
show that it has so improved its works that they no longer are
a nuisance, where the improvement is made after the suit, unless
it is sought to recover damages claimed to have been incurred
after such improvement was made, and then, of course, only in
rebuttal of the claim that damages were incurred during that
period. In other words, if the defendant admit that the dam-
ages were incurred, then the evidence is not admissible, for, as
we have seen, the operation of gas works in a city is a nuisance
if they cause a special injury.*'^ And the claim that they were
not a nuisance at the time the injury was rendered, because
of improvements introduced, is not admissible in evidence as a
defense."' If the action is to recover damages because of the
contamination of a well, testimony concerning the condition of
water in wells on other premises in the neighborhood is ad-
missible, in order to show the extent and character of the injury
sustained by the plaintiff, and also as tending to show that the
operation of the gas plant could produce the injury of Avhich
complaint is made.*''^ On the part of the defense " it may be
shown that other substances contaminated the well other than
those coming from the gas works, in order to reduce the dam-
ages ; for the plaintiff cannot recover for injuries inflicted by
others, although they were incurred at the same time the inju-
ries were inflicted by the defendant.^*
§594. Injunction.
An action for an injunction lies to prevent the continuance of
6 Sherman v. Fall River Iron es Belvidere Gaslight and Fuel Co,
Works, 2 Allen 524; 79 Am. Dec. v. Jackson, 81 111. App. 424; Ot-
799. tawa Gaslight and Coke Co. v. Gra-
61 Carhart v. Auburn Gaslight ham, 35 111. 346.
Co., 22 Barb. 297. «* Sherman v. Fall River Iron
62 Watson V. Gas Co., 5 U. P. Works Co., 5 Allen 213.
Q. B. (Can.) 262.
674
OIL AND GAS.
a nuisance caused by tlie operation of gas works/^^ nsnally
against the manner in which they are being conducted and not
generally against their operation. *^'^ And if necessary to afford
full relief the court may issue a mandatory injunction. '^^ But
it must be borne in mind that an injunction will not be granted
where the alleged injury is trifling and transient."** Thus,
where it appeared, owing to the company's precautions, that
only on three occasions had an appreciable escape of gas taken
place, and then only from accidental defects which were im-
mediately remedied, an injunction was refused, without preju-
dice to bring an action at law to recover the damages sustained.*^"
Any one seeking to restrain an alleged future nuisance must
make a strong case of probability, that the apprehended mis-
chief will in fact arise.'^" Of course, an actual befouling of a
stream may be enjoined in a proper case,'^ especially where the
damages would be inadequate.^^ If the contaminated water
will be deprived of its noxious qualities before it reaches the
land of the plaintiff an injunction will be denied.^^
65 Imperial Gaslight Co. v. Broad-
bent, 7 H. L. Cas. 600; 29 L. J.
Ch. 377; 5 Jur. (N. S.) 1319; 7 De
Gex MacN. and G. 436; 5 Gas J.
342; 9 Gas J. 751; Manhattan Gas-
light Co. V. Barker, 7 Kobt. (N.
Y.) 523; Tenant V. Goldwin, 1 Salk.
21, 360; 2 Ld. Raym. 1089; New Or-
leans V. Gaslight Co., 5 La. Ann.
439.
CO Cleveland v. Citizens' Gaslight
Co., 20 N. J. Eq. 201; Wragg v.
Commercial Gas Co., 33 Gas J. 119,
313; Attorney General v. Gaslight
and Coke Co., 7 Ch. Div. 217; bO
Gas J. 791, 827; Butt v. Imperial
Gaslight Co., L. R. 2 Ch. 158; 14
L. T. Rep. 349; 15 Gas J. 139.
c7 Hendrie v. Lea Bridge, etc., Co.,
21 Gas J. 949, 989.
8 Attorney General v. Cambridge,
etc., Co., L. R. 4 Ch. 71; 38 L. J.
Ch. 94; 19 L. T. (N. S.) 508; 17
W. R. 145.
C9 Cooke V. Forbes, L. R. 5 Eq.
166; 37 L. J. Ch. 178; 17 L. T. (N.
S.) 371.
"0 Attorney General \. Manches-
ter Corporation [1893], 2 Ch. 87;
62 L. J. Ch. 459; 68 L. T. 608; 41
W. R. 459; 57 J. P. 343; 3 R. 427.
See Windfall Mfg. Co. v. Patterson,
148 Ind. 414; 47 N. E. Rep. 2; 37
L. R. A. 381; 62 Am. St. Rep. 532.
Where a prescriptive right to be-
foul a stream has been acquired,
the fouling must not be enlarged to
the prejudice of others. Crossley v.
Lightowler, L. R. 2 Ch. 478; 36 L.
J. Ch. 584; 16 L. T. (N. S.) 638;
15 W. R. 801 ; Baxendale v. Mc-
Murray, L. R. 2 Cn. 790; 16 W.
R. 32.
"1 Clowes V. Staffordshire W. W.
Co., L. R. 8 Ch. 125; 42 L. J. Ch.
107; 27 L. T. 521; 21 W. R. 32.
"2 Pennington v. Brinsop Coal Co.,
5 Ch. 769; 46 L. J. Ch. 773; 37 L.
T. 149 ; 25 W. R. 874.
73 Elmhirst v. Spencer, 2 MacN. &
xuisAjxcES. 675
§595. Enjoining erection of gas plant.
An action Avill not lie to enjoin the erection of gas works
near a dwelling, on the theory that the reservoirs to contain the
gas are liable to explode and injnre snch house and those resid-
ing in it. It is the manner in which the gas works will be con-
ducted that must be shown in order to obtain an injunction ;
for it is a matter of notoriety that gas works can be so con-
ducted as to not seriously annoy those in the neighborhood, al-
though persons sensitive to the odors necessarily escaping may
object.'* Xor will the drilling of a gas or oil well be enjoined,
especially when it is doubtful if either gas or oil will be found. ^^
§596. Former recovery a bar.
If the plaintiff has already recovered a judgment for damages
because of the deterioration of his real estate by the main-
tenance of the gas works in "its vicinity and for the pollution
of the water thereon and rendering it unfit for use, such judg-
ment is a bar to any further prosecution for the same cause,
the continuance of the works being the sole basis of the second
claim for damages."* But where an action was brought for
damages incurred by injury to croj>s occasioned by the erection
and maintenance of gas works, and the noxious vapors and
smells created thereby ; and the action was referred to an arbi-
trator to determine the injury, and '^ what should be done "
between the parties ; and nearly two years elapsed before he
G. 4.5; Wood V. Waud, 3 Exch. (48; 148 Ind. 414; 47 X. E. Rep. 2;
18 L. J. Exch. 305; 13 L. T. 212; 37 L. R. A. 381; 62 Am. St. Rep.
13 Jur. 742. 532.
An action lies to prevent hot If a gas company becomes a nuis-
water being poured into a stream ; anee the nuisance may be abated,
yet if it reaches a natural tern- Walla Walla v. Walla Walla Water
perature before entering on the Co., 172 U. S. 1; 19 Sup. Ct. Rep.
plaintiff's land, there is no damage. 77 ; Fertilizing Co. v. Hyde Park,
Jlklason V. Hill, 3 B. and Ad. 304; 5 97 U. S. 659; Butchers' Union Co.
B. and Ad. 1.; 2 N. and M. 747: 2 v. Crescent, etc.. Co.. Ill U. S. 746;
L. J. K. B. 118. 4 Sup. Ct. Rep. 652; Coates v.
74 Cleveland v. Citizens' Gaslight Mayor, 7 Cow. 585.
Co.. 20 N. J. Eq. 201. tg Decatur Gaslight and Coke Co.
75 Windfall Mfg. Co. v. Patterson, v. Howell, 92 111. 19.
676 OIL AXD GAS.
made his award with respect to the damages sustained up to
the date of the award ; and no evidence was given with respect
to prospective damages; an entry was made in regard to the
award the same as if it had been a verdict; and subsequently
the gas company increased their works and altered their method
of manufacture ; it was held, on a bill filed by the plaintitf two
months after the award, that he was entitled to a perpetual
injunction to restrain the further manufacture of gas in a
manner injurious to his crops, and that there had been no
acquiescence on his part to deprive him of his right to an in-
junction. The award was treated as equivalent to the verdict
of a jury.^^
§597. Indictment for nuisance.
An indictment for the creation of a nuisance in the conduct
of its works lies against a gas cor4pany, even though it has been
authorized by a special act of the legislature to conduct its
works in the town or city where located ; and the fact that it has
been so authorized is no defense.^^ But if the company, under
such authority, has erected its buildings in the best manner pos-
sible, and used the best known methods of making, storing and
distributing gas, it will not be liable, although it may be liable
to a private person injured by the operation of the works in
the manner described.^"
§598. Waste of natural gas or oil.
In Indiana a statute provides that it shall be unlawful for
any one having possession or control of a gas or oil well " to
allow or permit the flow of gas or oil from " it " to escape into
the open air, without being confined Avithin such well or proper
pipes, or other safe receptacle for a longer period than two
days next after gas or oil shall have been struck in such well ;
T7 Imperial Gaslight Co. v. Broad- L. T. (N. S.) 694; 12 W. R. 212;
bent, 7 H. L. Cas. 600; 29 L. J. Ch. 11 C. B. (N. S.) 578; Rex v. Med-
377; 5 Jiir. (N. S.) 1319; 7 De ley. 6 C. and P. 292.
G. ]McN. and G. 43G; 9 Gas J. 751. to People v. K Y. Gaslight Co.,
78 Parry v. Croydon Gas Co., 15 64 Barb. 55 ; 6 Lans. 467.
C. B. 568; 10 Jur. (N. S.) 172; -
NUISANCES.
C77
and thereafter all such gas or oil shall be safely and securely
confined in such well, pipes or other safe and proper recep-
tacles." ^^ It was not only held that this statute was consti-
tutional, hut also that the State could maintain an action to
restrain the waste of gas in violation of its provisions, where it
w^as alleged that the penalties for the M^asting of gas w^ere wholly
inadequate, and that the injuries occasioned by the wrongful
and unlawful conduct of the defendant, if permitted to continue,
would be irreparable. It was considered that permitting gas
to escape in violation of the statute was a nuisance. In pass-
ing upon the case the court said :
" Appellee's counsel have conceded that the pressure in gas
wells since the discovery of gas in this State has fallen from
350 ]X)unds *to 150 pounds. This very strongly indicates the
possibility, if not the probability, of exhaustion. In the light
of these facts, one who recklessly, defiantly, persistently, and
continuously wastes natural gas, and boldly declares his purpose
to continue to do so, as the complaint charges appellee with
doing, all of which it admits to be true by its demurrer, ought
not to complain of being branded as the enemy of mankind.
But appellee tries to excuse its conduct on the score that it
cannot mine and utilize oil under and in its land without wast-
ing the gas. But there is nothing in the record to hear out that
claim. However, if there was, it would not furnish a valid
excuse. It is not the use of unlimited quantities of gas that is
prohibited, but it is the waste of it that is forbidden. The
object and policy of that inhibition is to prevent, if possible,
the exhaustion of the storehouse of nature, wherein is deposited
an element that ministers more to the comfort, happiness, and
well being of society than any other of the bounties of the earth.
Even if the appellee cannot draw oil from its wells without
wasting gas, it is not denied that it may draw gas therefrom,
and utilize it without wasting the oil. But, even if it cannot
draw oil from such wells without wasting gas, and is forbidden
80 Burns' Stat. 1901, Sec. 7510;
Thornton's Rev. Stat. 1897, Sec.
678 OIL AND GAS.
by injunction so to do, it is only applying the doctrine that the
owner must so use his own property as not to injure others.
It may use its wells to produce gas for a legitimate use, and must
so use them as not to injure others or the connrmnity at large.
The continued Avaste and exhaustion of the natural gas of In-
diana through appellee's wells would not only deny to the in-
habitants the many valuable uses of the gas, but the State,
whose many quasi-public corporations bave many millions of
dollars invested in supplying gas to the State, and its inhab-
itants, will suffer the destruction of such corporations, the loss
of such investments and a source of* large revenues. To use
appellee's wells as they have been doing, they injure thousands
and perhaps millions of the people of Indiana, and the injury,
the exliaustion of natural gas, is not only an irreparable one,
but it will be a great public calamity. The oil appellee pro-
duces is of very small consequence as compared with that ca-
lamity which it mercilessly and cruelly holds over the heads of
the people of Indiana, and, in effect, says : ' It is my property
to do as I please with, even to the destruction of one of the
greatest interests the State has, and you people of Indiana help
yourselves if you can. What are you going to do about it ? '
We had petroleum oil for more than a third of a century before
its discovery in this State, imported from other States, and
we could continue to do so if the production of oil should
cease in this State. But w^e cannot have the blessings of nat-
ural gas unless the measures for the preservation thereof in this
State are enforced against the lawless. We therefore conclude
that the facts stated in the complaint make a case of a public
nuisance which the appellant has a right to have abated by in-
junction, and that the complaint states facts sufficient to consti-
tute a cause of action." ^^
81 state V. Ohio Oil Co., 150 Ind. 21; 149 N. E. Rep. 809.
CHAPTER XXIX.
LEAKS AND EXPLOSIONS.
§509. Duty of gas companies in general.
§600. Care required of gas companies.
§601. Gas company must keep its gas constantly under control.
§602. Degree of care required of gas company.
§603. Night watchman.
§604. Gas company's act or neglect must have caused the damage.
§605. Two or more defendants liable.
§606. Statute permitting recovery although there is no negligence.
§607. Explosion occasioned by a violation of a statute.
§608. Laying gas main in navigable river.
§609. Overwhelming disaster.
§610. Burden of proof.
§611. Presumption of negligence does not arise from proof of e.xplosion.
§612. Presumption of negligence arising from proof of e.xplosion.
§613. Stop-cock' on street line.
§614. Intervening agency.
§615. Inspection of pipes or mains.
§616. Duty to make repairs immediately. — Available force.
§617. Notice of leaks.
§618. Notice. — Failure to discover place of leak.
§619. Notice of leak, when not necessary to fix liability.
§620. Evidence of notice to gas company of danger to mains.
§621. Evidence of other leaks.
§622. Evidence of leaks.
§623. Breaks occasioned by ordinary use of streets.
§624. Action of frost.
§625. Pipes breaking from lack of support. — Excavations near pipe lino.
§626. Property owner's duty to notify gas company of leaks.
§627. Company misleading plaintiff as to extent of danger.
§028. Municipality operating plant.
§629. Gas following supply pipe from main. — Percolating through soil. —
Sewer.
§630. Withdrawing gas from mains without notice.
§631. Undue pressure in mains.
§632. Evidence of undue pressure at other places.
§633. Explosion caused by act of servant of gas company.
679
680 OIL AND GAS.
§634. Company undertaking to repair consumer's pipes or fixtures.
§635. Injury to shade trees. — Shrubbery.
§636. Illuminating gas driving sewer gas into house.
§637. Explosion caused by act of third person.
§638. Gasfitter igniting escaping gas.
§639. Negligence of fellow servant.
§640. Person on premises by license.
§641. Guest or inmate of family may recover from gas company wlrere
owner is negligent.
§642. Lessee's right of action against the gas company.
§643. Third person causing gas to escape, liability.
§644. Gas turned on by owner or stranger.
§64.5. Landlord's right of action against tenant.
§646. Tenant's right of action against landlord.
§647. Owner of premises liable to injured person.
§648. Plaintiff must show due care on his part. — Contributory negligence.
§649. Owner removing from his premises to avoid injury.
§650. Duty of property owner to cut off supply of gas.
§651. Searching for leaks with a light.
§652. Contributory negligence a questien for the jury.
§653. Negligence of parent, wife or servant.
§654. Contributory negligence of tenant may bar landlord, — reversionary
interest.
§655. Negligence of contractors. — Lessee.
§656. Right of action over.
§657. Liability of gasfitter.
§658. Evidence to show due care on gas company's part.
§659. Expert evidence to show effect of electrolysis.
§660. Evidence in cases of inhalation of gas.
§66L Expert evidence on inhalation of gas.
§662. Proof of effect upon growing vegetation or grass.
§663. What acts of negligence a question for the jury.
§599. Duty of gas companies in general.
In speaking of the duty of a gas company supplying a city
and its inhabitants with gas, the Supreme Court of Massachu-
setts has used the following language: "The defendants [a
gas company], under their charter, were in the enjoyment of a
great and peculiar privilege, that of supplying the means of
light to all parts of the city. This devolved upon them a cor-
responding degree of responsibility in the conduct of their busi-
ness and in the preservation of every part of their apparatus
from defects by which the public might be subjected to great
inconvenience, and individuals be exposed to imminent peril
LEAKS AND EXPLOSIONS. 681
and danger in respect to property and their lives. They are
therefore under the highest degree of obligation to be at all
times in a state of the most ample preparation to meet, with
all reasonable promptitude and despatch, whatever exigency
might occur. It is manifestly impossible that they should have
at their service, at every moment and at every point of exposure,
an adequate force to overcome a sudden fracture of their pipes,
or any other casual and unexpected obstacle in the conduct of
their affairs in the shortest possible time. All that they are
required to do is to afford ample opportunities to all parties in-
terested to make communications to them, to institute and main-
tain an efficient system of oversight and superintendence, and
to be prepared with a sufficient force ready to be put in action,
and fully competent to supply and furnish a prompt remedy for
all such accidents, defects, and interruptions in their affairs, as
from experience and character of their works there was reason-
able ground to anticipate might occur." ^
§600. Care required of gas companies.
In Massachusetts the following rule was laid down by the
Supreme Court, relative to the care required of a gas company
furnishing a city and its inhabitants with gas : " It is the duty
of gas companies, which are invested, for their own profit and
advantage, with the great and important privilege of supplying
the community Avith light for private habitations, and for other
places devoted to public or private use, to exercise due care
and diligence in keeping the gas constantly under their control
and preventing it from escaping into a dwelling house or place
of business, where the inmates or occupants are in such cases
involuntarily subjected to its effects, whether they are positively
1 Holly V. Boston Gaslight Co., against its liability for damages
8 Gray 123; 69 Am. Dec. 233. occasioned by an explosion brought
Where water is used in a meter, about by its negligence. Bastian v.
the gas company must keep the Keysi-one Gas Co., 27 N. Y. App.
meter so supplied with water that it Div. 584; 50 N. Y. Supp. 537; 4
will not leak. Hacker v. London Am. Neg. Rep. 529; Deckert v. Mu-
Gaslight Co., 32 Gas J. 781. nicipal, etc., Co., 9 N. Y. App. Div.
A gas company cannot contract 573 ; 41 N. Y. Supp. 692.
682 OIL AXD GAS.
injurious or merely disgusting and offensive. If its effect is
noxious as well as disagreeable, the diligence required to take
care of and control it should be still more active and unremit-
ting." "^
§601. Gas company must keep its gas constantly under control.
A gas company operating in the streets of a city or to^^^l is
bound to constantly keep its gas under control, and prevent it
escaping into dwelling houses and places of business ; and if the
gas does escape and cause damages, the company is usually
liable.^ And the fact that the company, in the erection and
operation of its plant, took all reasonable and proper precau-
tion, and used the best and most approved machinery and appli-
ances, added all that a prudent person could do to prevent the
escape of gas from its plant, of itself does not relieve the com-
pany from responsibility, if an injury actually results because
of the escaping gas.* Gas is regarded, and is, a dangerous
substance ; and he who brings it onto his or another's premises
must safely keep it a„ his peril. In this respect it is not unlike
the collection of a large body of water upon one's premises;
the person so doing does so at his peril and must keep it safely
confined. In an Ohio case where a stand-pipe filled with water
fell, causing much damage, the court said : " This brings
us to the consideration of the question of the liability of one
who, for his own purposes, collects upon his premises a substance
likely to injure others in case it escapes.
2 Emerson v. Lowell Gaslight Co., 3 Armbruster v. Auburn Gaslight
3 Allen 410; Parry v. Smith, L. R. Co., 18 N. Y. App. Div. 447; 4G N.
4 C. P. 325; 33 Gas J. 899. Y. Supp. 158; Bastian v. Keystone
Every precaution suggested by ex- Gas Co., 27 N. Y. App. Div. 584 ;
perience and the known dangers 50 N. Y. Supp. 537; Chisholm v.
must be taken. Koelsch v. Phila- Atlanta Gaslight Co., 57 Ga. 28;
delphia Co., 152 Pa. St. 355; 25 Triple, etc., Co. v. Wellman (Ky.),
Atl. Rep. 522; 18 L. R. A. 759; 34 70 S. W. Rep. 49; So. Oil, Langa-
Am. St. Rep. 653. bough v. Anderson, 22 Ohio Cir. Ct.
The fact that other causes cva- Rep. 178; 12 Ohio C. D. 341.
tributed to the injury does not bar 4 Belvidere Gaslight Co. v. Jack-
the action, though it may be shown son, 81 111. App. 424.
to affect the damages. Sherman v.
Fall River, etc., Co., 5 Allen 213.
LEAKS A>'D EXPLOSION'S. 683
" The principle upon which liability rests in such case is
quite unlike that which determines the liability of one who
leaves unguarded, excavations upon his own lands, or one who
negligently constructs a building so that it falls upon his own
premises. In these latter cases no one can be injured unless
he comes upon the premises. If he remains away, he is safe.
In the former, the danger arises from the natural tendency of
the things to escape from the premises where stored, together
with the likelihood of its doing injury if it does escape there-
from. In England it seems to be settled by Fletcher vs. Ry-
lands,** inanimate substances or animate things from the escape
of which injury is likely to follow, to prevent such escape.
While this duty may not extend to trespassers, or those w'ho, for
their own purposes, without express or implied invitation from
the proprietor, chose to come upon the premises, yet that case
(Fletcher vs. liylands, sizpra), should be regarded as extending
this duty to all persons who may be rightfully on adjoining
premises. Blackburn, J., in the course of an able opinion, and
speaking for the wliole court, used the following language :
' We think the true rule of law is that the person, who, for his
own purposes, brings on his land, and collects and keeps there
anything likely to do mischief if it escapes, must keep it in
at his peril, and if he does not do so, is prima facie answerable
for all the damage that is the natural consequence of its escape.
He can excuse himself by showing that the escape was owing to
plaintiff's default ; or, perhaps, that the escape was the conse-
quence of a vis major, or the act of God. . . . The general
rule as above stated seems on principle just. The person whose
grass or corn is eaten down by the escaping cattle of his neigh-
bor, or whose mine is flooded by the water from his neighbor's
reservoir, or whose cellar is invaded by the filth of his neighbor's
privy, or whose habitation is made unhealthy by the fumes and
noisome vapors of his neighbor's alkali works, is damnified with-
out any fault of his own, and it seems but reasonable and just
that the neighbor who has brought something on his own prop-
erty which was not naturally there, harmless to others so long
*4L. R. 1 Exch.
6 Si OIL AND GAS.
as it is confined to bis own property, but wbicb be knows to be
miscbievous if it gets on bis neigbbor's, sbould be obliged to
make good tbe damage wbicb ensues if lie does not succeed in
confining it to bis own property. But for bis act in bringing
it tbere, no miscbief may accrue, and it seems but just tliat be
sbould, at bis peril, keep it tbere, so tbat no miscbief may ac-
crue, or answer for tbe natural and anticipated consequences.
And upon autbority, tbis, we tbink, is establisbed to be tbe law,
wbetber tbe tbings so brougbt, be beasts, or water, or filtb, or
stencbes.'
" Tbis doctrine," resumes tbe Ohio court, " would seem to be
in exact accord justice and sound reason ; but in the case before
us we are not required to apply it to its full extent, because tbe
defendant in error, in her amended petition, expressly avers
negligence in the construction of tbe stand-pipe, as well as knowl-
edge that it had afterward cracl^d and become weakened, a
negligent failure to make repairs, and tbat the accident which
caused her injuries was the direct result of such negligence."
" Therefore, whether or not she could recover in the absence
of negligence on the part of the water company in storing the
water, does not concern us at tbis time, for, however that may
be, certainly one who, like defendant in error, is rightfully on
premises adjoining those upon which such substances are stored,
and is injured by their escape, should, upon the plainest prin-
ciples of natural justice, recover from the proprietor storing the
same, damages for such injury, where tbe escape was caused by
negligence."
'■ While every person has exclusive dominion over his own
property, and may subject it to such uses as may subserve his
wishes and private interests, he is bound to have respect and
regard for bis neighbor's rights."
" The maxim ' sic utere tuo ut alienum non laedas ' limits his
powers. He must make a reasonable use of bis property, and
a reasonable use can never be construed to include those uses
which produce destructive vafbrs and noxious smells, and tbat
result in material injury to the property and to the comfort of
the existence of those who dwell in the neighborhood." '' Tbe
reports are filled with cases where this doctrine has been applied.
LEAKS AXD EXPLOSIONS. 685
and it may be con ftdeiitly asserted that no authority can be pro-
duced holding; that ne^liffence is essential to establish a cause
of action for injuries of such a character." ^
§602. Degree of care required of gas company.
The decisions are not uniform with respect to the degree of
caro required of a gas company to prevent leaks and explosions.
In many cases it is said that the company must use due care to
prevent an injury to person or property, no other qualifications
of the degree of care being used.*' And after notice of a leak
it is said it must use " reasonable diligence " to discover and
stop it, which is an elastic phrase ; and it may be remarked no
one would expect it to use '' unreasonable degree of diligence." ^
In a Pennsylvania case the degree of care required was stated
as follows : " The definitions of negligence which have been
attempted imply that a higher degree of care and vigilance is
required in dealing with a dangerous agency than in the ordi-
nary aifairs of life or business, which involve little or no risk of
injury to persons or property. "WTiile no absolute standard of
duty in dealing with such agencies can be prescribed, it is safe
5 Defiance Water Co. v. Olinger, In Kentucky it is held that a
54 Ohio St. 532; 44 N. E. Rep. 238; natural gas company is not an in-
32 L. R. A. 736 ; 35 Ohio L. J. surer of the safety of its product,
323. 350. so as to be responsible for a failure
The court cites St. Mary's Wool- to keep it confined. It is only iia-
en Mfg. Co. v. Bradford Glycerine ble for a failure to exercise ordinary
Co., 14 Ohio Cir. Ct. Rep. 522; care. Triple State, etc.. Co. v. Well-
Bohan v. Gaslight Co., 122 X. Y. man (Ky.), 70 S. W. Rep. 49.
18; 9 L. R. A. 711; 34 Am. and c pine Bluff, etc., Co. v. McCain,
Eng. Corp. Cas. 57; and Brady v. 62 Ark. 118; 34 S. W. Rep. 549;
Detroit Street, etc., Co., 102 Mich. Louisville Gas Co. v. Gutenkuntz,
277; 60 N. W. Rep. 687; 26 L. R. 82 Ky. 432; Triple State, etc., Co.
A. 175. V. Wellman (Ky.), 70 S. W. Rep.
This is the doctrine of the case 49; 24 Ky. Law Rep. 851.
of Rylands v. Fletcher, L. R. 3, "^ Consolidated Gas Co. v. Crocker,
H. L. 330. which has been held in 82 Md. 113; 34 Ati. Rep. 423; 31
Pennsylvania not to he applicable to L. R. A. 785; Hunt v. Lowell Gas-
a gas company. Strawbridge v. light Co.. 1 Allen 343; Blenkiron v.
Philadelphia, 13 Phila. 173; 13 Great Central Gas, etc., Co., 2 F.
Repr. 216; 36 Leg. Int. 276. and F. 437; 2 Gas J. 292, 776; 3
L. T. (X. S.) 317.
686 OIL AND GAS.
to say, in general terms, that every reasonable precaution sug-
gested by the experience and the known dangers of the subject
ought to be taken. This would require, in the case of a gas
company, not only that its pipes and fittings should be of such
material and workmanship, and laid in the ground with such
skill and care, as to provide against the escape of gas therefrom
when new, but that such system oi inspection should be main-
tained as would insure reasonable promptness in the detection
of all leaks that might occur from the deterioration of the ma-
terial of the pipes, or from any other cause wuthin the circum-
spection of men of ordinary skill in the business. It requires
nothing unreasonable ; it does not require that the company shall
keep up. a constant inspection all along its lines without refer-
ence to the existence or non-existence of probable cause for the
occurrence of leaks or escape of gas." ^ But in an Indiana case,
in speaking of the duty of a nati^ral gas company, the court
said : " Appellant was engaged in dealing in and furnishing to
its patrons a dangerous, deadly explosive, and inflammable ele-
ment. The character of the product it furnished required of
it the highest degree of care and caution, and imposed upon it
a continuing duty of oversight and inspection." ^ These sev-
eral expressions may be all reconciled, probably, by the well
known rule in negligence cases that due care in a particular
instance depends u^wn the existing danger — the care required
increasing with increase of the danger. Or, as it has been
stated, in a particular application, a gas company is bound to
exercise a reasonable degree of care commensurate wdth the dan-
gerous and explosive nature of its commodity.^" This is the
8 Koelseh v. Philadelphia Co., 152 9 Indiana, etc., Gas Co. v. Long,
Pa. St. 355; 25 All. Rep. 522; 18 27 Ind. App. 219; 59 N. E. Rep.
L. R. A. 759; 34 Am. St. Rep. 410; Alton Ry., etc., Co. v. Foulds,
653. " Something like this was said 81 111. App. 322; affirmed 190 III.
in Kiebele v. Philadelphia, 105 Pa. 367; 60 N. E. Rep. 53/ (elctricity) ;
St. 41, and in Holly v. Boston Gas- Bastian v. Keystone Gas Co., 27 N.
light Co., 8 Gray 123; 69 Am. Dec. Y. App. Div. 584; 50 N. Y. Supp.
233; and Smith v. Boston Gaslight*" 537.
Co., 129 Mass. 318; and this prin- lo This was said with reference
ciple is recognized in many kindred to the duty of a gas company in
cases." keeping its meters in a condition
LEAKS AXD EXPLOSIONS. 687
rule laid down in many eases/^ It must be borne in mind tliat
a gas company is a quasi-public corporation, in cities and towns
dealing with the public, and having the right to lay its pipes in
the public streets. Hence there devolves upon it a duty to use
a greater degree of care than if it was merely a private corpora-
tion, especially if the latter is remote from contact with the
public. It is handling a dangerous substance — probably more
dangerous than gunpowder — often in the midst of heavily pop-
ulated districts ; and such a situation calls for a high degree of
care. " Care and diligence," said the Supreme Court of Massa-
chusetts, " should always vary according to the exigencies which
require vigilance and attention, conforming in amount and
degree to the particular circumstance under which they are to
be exercised. But it must be equal to the occasion on which it
is to be used, and is always to be judged of according to the
subject matter, the force and danger of the material under the
defendant's charge and the circumstances of the case." ^'
§603. Night watchman.
It is the duty of a gas company to keep watch not only in the
day time over its plant and the supply of gas, but also at night;
especially where the pressure of the gas in the mains fluctuates,
as in the case of natural gas. " A person or corporation who
furnishes natural gas to customers and negligently causes, suf-
fers or permits the pressure to increase beyond the usual and
free from menace of danger to the App. Div. 447; 46 N. Y. Supp. 158;
persons or property of others. An- Barriokman v. Marion Oil Co., 45
derson v. Standard Gaslight Co., 17 W. Va. 634; 32 S. E. Rep. 327; 44
N. Y. Misc. 625; 40 X. Y. Supp. L. R. A. 92.
671. 12 Holly V. Boston Gaslight Co.,
11 Butcher V. Providence Gas Co., g Gray 123; 69 Am. Dec. 233;
12 R. I. 149; 34 Am. Rep. 626; Holding v. Liverpool Gas Co.. 3 C.
Rockford Gaslight, etc., Co. v. B. 1 ; 10 Jur. 883; 15 L. J. C. P.
Ernst, 68 111. App. 300 (must ex- 301; 5 X. Y. Leg. Obs. 77; Anthon
ercise care in the use of gas in N. P. 356,' note; Koelsch v. Phila-
proportion to the danger); Belvi- delphia Co., supra; Mississinewa
dere Gaslight and Fuel Co. v. Jack- ]\Iining Co. v. Patton, 120 Ind. 472;
son, 81 HI. App. 424; Chisholm v. 28 X. E. Rep. 1113; 28 -Im. St.
Atlanta Gaslight Co., 57 Ga. 28; Rep. 203.
Armbruster v. Auburn, 18 X. Y.
688 OIL AND GAS.
acGJistomed pressure to the extent that it overheats stoves, etc.,
of its customers, and without the hatter's fault, so that damage
resuhs to the customers, such act is a positive wrong, and is
therefore actionable. In. a case of this character it is not suffi-
cient to relieve the gas company from liability for it to show
that its regulators, etc., were in good repair and working order ;
but it must go further and show that it had maintained an effi-
cient system of inspection ; that it provided a watchman or com-
petent servant to control the pressure, etc.^'^ Especially is it
necessary for this to be done during the night, for it has become
a matter of common knowledge that during the night, while
many fire^ are either turned out or down, that receive their sup-
ply of fuel from the same main, the pressure is increased." ^*
§604. Gas company's act or neglect must have caused the
damage.
It is an elementary proposition that the act of the gas com-
pany, or its neglect to perform a duty, must cause the damages,
to make it liable. The damages must be directly traceable to
the act of the gas company ; or they must be directly traceable
to its failure to perform a duty, the word " duty " in this con-
nection implying that the company is under an obligation to
perform the thing, which, omitting to perform caused the in-
jury. In an Indiana case is furnished an illustration of this
statement. A complaint in an action against a natural gas
company to recover damages to the plaintiff, caused by an over-
heated stove, contained the allegations that the plaintiff had con-
trol of all gas appliances within her home, except the mixer, that
the defendant, over her protest, substituted a number seven for
a number five mixer, but there was no allegation that the de-
fendant was bound to furnish such a mixer as the consumer
desired, or that the fire might not have occurred with either
mixer ; that a valve was placed in the pipe to regulate the
13 Citing Koelsch v. Philadelphia Ind. App. 219; 59 N. E. Rep. 410;
Co., 152 Pa. St. 355; 25 Atl. Rep. *-' Indiana, etc., Gas Co. v. New Hamp-
522; 34 Am. St. 653; 18 L. R. A. shire, etc., Co., 23 Ind. App. 298;
759. 53 N. E. Rep. 485.
1* Indiana, etc., Co. v. Long, 27
LEAKS AXD EXPLOSIONS, 689
flow of gas, but that the amount of the flow depended entirely
upon the pressure, which was regulated by the company; that
the " valve was used to turn off and put on the gas," and that
'* she had carefully adjusted the valve to suit the pressure be-
fore her absence." It was held that the complaint failed to show
any negligence on the part of the defendant, and also failed to
show that the plaintiff was free from fault. In passing on the
case the court said: "In the case at bar the complaint fails
to make a case within the above rule. Construing the pleading
most strongly against the pleader we can but conclude that it
fails to show any negligence on the appellee's part, and also
fails to show appellant free from fault. It appears that ap-
pellant had control of all gas appliances within her home except
the mixer. Complaint is made that appellee changed, over
appellant's protest, a number five for a number seven mixer,
but there is nothing to show that appellee wns legally bound to
furnish such mixer as the consumer wished. So far as we are
informed by the complaint, the fire might have occurred with
either mixer. It is not shown where the right to detennine
the size of the mixer lay. Appellee may have had the right
under franchise to require a certain mixer for such a house as
appellant's ; it may have had a perfect right to change the
mixer as it did. It is not claimed the mixer put in was de-
fective, or that any of the appliances were defective. It is
not shown that the change was a negligeut act, or that appellee
did anything wrong-ful in making the change, or that after the
change was made it negligently increased the pressure through
such changed mixer. It is averred that the gas passes out of
the pipe through mixer into an instrument called a burner, and
in the pipe before the point where the gas passes through the
mixer, ' is placed a valve which is opened and closed to regulate
the flow of the gas, but the amount of the flow of gas depends
upon the pressure entirely,' and that the pressure is regulated
by the company. It is also averred that the ' valve is used to
turn off and put on the gas.' Construing these averments to-
gether they mean that the flow of gas, whether the pressure was
great or small, was controlled by this valve. And it seems ap-
090 OIL AND GAS.
pellant knew this and acted upon it, and that she also knew the
pressnre was not uniform, for she avers that ' she had carefully
adjusted the valve to suit the pressure before her absence.' If
she made a mistake and failed to turn the valve low enough,
she cannot complain. It is clear from the pleading that she
knew the manner of regulating the flow of gas, and made an at-
tempt to regulate it." ^^ Where a complaint alleged that the
defendant was guilty of negligence in failing to turn off the
supply of gas from a house after being directed to do so, in order
that a defective pipe within the cellar might be located and
fixed ; and that the plaintiff, who was a plumber, while search-
ing for the defect was injured by an explosion, it was held that
it did not show that the injury was the proximate cause of the
defendant's negligence, as the presumption is that there was
an inteiwening res'ponsible agency for which the defendant was
not responsible.^*' So where it appeared that the gas came into
the cellar through a break at the junction of the service pipe and
the " riser " leading up into the house, and that the gas C(3m-
pany's workmen were engaged in repairing the mains opposite
the house, but there was no evidence to show that their work in
any way affected the service pipe, or it did not connect them
in any way with the condition of the pipe ; it was held that no
negligence was shown on the part of the company or its servants,
and a compulsory non-suit was entered.^'^ Where the gas had
been cut off and the meter in an engine room removed and the
service pipe left open ; and it was charged that gas escaped,
reached a lamp and exploded, causing a fire ; and the only facts
on which the plaintiff's theory was based were that the windows
where the lamp stood were found in the alley alongside of the
15 Ibach V. Huntington, etc., Co., of Philadelphia, 13 Phila. 173; 36
23 md. App. 281; 55 N. E. Rep. Leg. Int. 276; 13 Rep. 216; Straw-
240. bridge v. City of Philadelphia, 2
icMcGahan v. Indianapolis, etc., Penn. 419; State v. Consolidated
Oas Co., 140 Ind. 335; 37 N. E. Gas Co., 85 Md. 637; 37 Atl. Rep.
Rep. 601; 29 L. R. A. 355. With- 263.
out proof of negligence, the dofencit i7 Krzywoszynski v. Consolidated
ant cannot be held responsible for Gas Co., 4 N. Y. App. Div. 161; 38
damages caused by an explosion of N. Y. Supp. 929.
escaping gas. Strawbridge v. City
LEAKS AND EXPLOSIOlSrS. G91
shop, although there was nothing to show that they had been
blown out ; that the lamp was lying on the floor unbroken, and
after the fire a strong odor of gas was noticed near the service
pipe ; and no one saw the commencement of the fire, nor saw
or heard an explosion, although persons were within ninety feet
when the fire broke out; and the windows were the only evidence
to show there had been an explosion ; that the open furnace
under the boilers between the gas pipe and the lamp had an open
fire in it; and the plaintiff claimed that as gas rises, and the
lamp was higher than the furnace, and the fire in the latter was
low, the gas might reach the lamp first ; it was held that the
evidence of an explosion was not sufficient to submit the case
to the jury, even though the contention of the plaintiff that
gas would rise was true, for it would show that that part of the
room above the lamp was filled with gas, and its explosion would
have produced more destruction than was caused by the alleged
explosion/^
§605. Two or more defendants liable.
The circumstances may be such that two or more defendants
may be liable for the damages occasioned by a leak or explosion.
Such would be an instance where an individual negligently set
fire to escaping gas, the company having had ample notice that it
was escaping and having had sufficient time to stop the leak.
Where two companies are jointly sued, but the several grounds
of their liability are wholly separate and distinct, the admis-
18 Benson v. Allegheny Heating low and high pressure line, produc-
Co., 188 Pa. St. 614; 41 Atl. Rep. ing an explosion, which would not
729. have otnerwise occurred. McKenna
A gas company is not liable for v. Bridge Water Co., 193 Pa. St.
injuries caused by an explosion 633; 45 Atl. Rep. 52; 47 L. R. A.
where it is directly caused by the 790. See also Triple State, etc., Co.
gas being introduced into the dwell- v. Wellman (Ky. ), 70 S. W. Rep.
ing by another gas company's em- 49; 24 Ky. L. Rep. 851.
ployee, who, mistaking the line for Evidence of what the pressure of
that of his own company, opened a another company's gauge is, is not
by-pass, which was properly pro- admissible. Barrickman v. IMarion
tected, without the defendant's Oil Co., 45 W. Va. 634; 32 S. E.
knowledge, and which connected its Rep. 327 ; 44 L. R. A. 92.
692 OIL AND GAS.
sions of one company touching the cause of the accident are not
admissible in behalf of its co-defendant; and counsel for one
company cannot comment in argument or admissions made by
the employees of the other defendant touching its responsibility
for the accident, unless it has been shown that such employees
were authorized to make such admissions. In such an instance,
(he one defendant is not entitled to the benefit of an instruction,
given with plaintiff's consent, which is unduly favorable to its
co-defendant, the rulings as to the one defendant being correct in
themselves ; and that admission of a servant of one of the de-
fendants, made after verdict rendered at the close of the plain-
tiff's evidence in favor of his employer, touching the cause of
the accident, is not admissible in favor of the co-defendant com-
pany, since the defendant making the admissions is no longer
a party to the controversy.^^ In the case just cited it was held
that one gas company was liable, even though only a part of
the gas that exploded was its own. So if one carelessly and
negligently applies a light to escaping gas he will be liable
equally with the gas company that negligently permitted it to
escape."" Where gas Avells were drilled by a subcontractor, the
pipes being furnished by the contractor and put together by the
subcontractor ; and after the subcontractor had ceased to use
the pipes and gas for drilling purposes, the agents of the con-
tractor took up the north and south line, which connected Avith
the east and west line, leaving one joint connected with the T,
after which the accident happened, the pipe line then being
solely the property of the contractor ; the latter was held liable
because he had assumed the subcontractor's former charge
to care for the line, which, after the accident, was used as a
part of the permanent line. And where, before the accident,
gas was delivered to the company by the contractor, partly
through the pipe line in question, the company, as well as the
i!»Koplan V. Boston Gaslight Co., 20 pine Bhiff, etc., Co. v. McCain,
177 raass. 1.1 ; 58 N. E. Rep. 18.3; 62 Ark. 118; 34 S. W. Rep. 549;
Schermerhorn v. Metropolitan Gas^ see Flint v. Gloucester Gaslight Co.,
light Co., 5 Daly 144; Burrows v. 3 Allen 343.
March Gas and Coke Co., L. R. 5
Exch. 67; 22 L. T, (N. S.) 24.
LEAKS AND EXPLOSIONS. 693
contractor, was held liable, notwithstanding the fact that he
had not, at the time of the accident, fully completed his con-
tract, nor formally turned over the plant to the company which
was in actual use, for the escape of gas wdiich flowed through
the pipe in question."^ Where a contractor laying gas mains
in a street joined them imperfectly, and the gas company turned
on the gas before the works had been turned over to it, to test
the pipes, and the gas escaped at the imperfect joints, injuring
a workman ; it was held that both the gas company and the con-
tractor were jointly liable — the contractor, because he had
done imperfect work; and the gas company, because it was its
duty to see that the pijies were in a proper condition before
turning gas into them."' A somewhat similar decision was
made in case of escaping oil catchuig fire. In this instance an
oil pipe was connected with an oil car. The oil escaping from
the pipe caught fire, and in order to save the car by pushing it
along from the track it became necessary to disconnect it from
the pipe. A servant went upon the car by direction of another
servant to turn the valve in it in order to cut off the flow of the
oil into the pipe, and upon being advised and assured that the
oil had been cut off, the injured servant disconnected the pipe
from the car, whereupon the oil, by reason of the fact that it
had not been cut off, jwured over him, igniting and burning
him severely. There were no stop-cocks in the pipe, so the oil
could be cut off in case of danger, having l>een removed with-
out notice to the servant sustaining the injuries. The court con-
sidered that it took the combined negligence of the master and
the servant who was directed to cut off the flow of the oil to
produce the injury, and that the master was liable."^
21 Lebanon Light, etc., Co. v. 22 Chicago Economic Fuel Co. v.
Leap, 139 Ind. 443; 39 X. E. Rep. Myers. 168 111. 139; 48 N. E. Rep.
57; 29 L. R. A. 342. 06; affirming 64 111. App. 270; 1
A mining company cannot escape Chic. L. J. Wkly. 276.
by simply placing the management 23 Pullman Palace Car Co. v.
of its mining in charge of a person Laack. 143 111. 242; 32 X. E. Rep.
under a written contract, in which 285; 18 L. R. A. 215, affirming 41
such person is called a " lessee." 111. App. 34.
Consolidated Coal Co. v. Seninger, The action may be brought
79 111. App. 456; affirmed 179 111. against the person operating a
370; 53 X. E. Rep. 733. plant, although another person built
694 OIL AND GAS.
§606, Statute permitting recovery although there is no negli-
gence.
A statute may be so drawn as to render a gas company liable
for damages occasioned by an explosion, although there is no
negligence on the part of the defendant. Thus in Ohio a statute
with reference to a natural gas company provided that it " shall
be liable for any damages that may result from the transporta-
tion of " natural gas. It was held that a natural gas company
transporting natural gas was liable for an explosion, under this
statute, although not guilty of any negligence causing the ex-
plosion, the court saying: "Upon principles of universal ap-
plication, the company would be held liable for any damages
that might result from its negligence in transporting natural
gas through the streets of a city. 4 Therefore, to construe the
statute as the plaintiff in error contends would deny it any
operation or effect whatever. We think that when the subtle
and dangerous properties of this fluid are considered, together
with the long existing, and perhaps still unsettled, controversy
that has claimed the attention of courts and textwriters, both
in England and in this country, respecting the extent of the lia-
bility of those who deal in dangerous substances, for damages
caused by them, and the absence of the word ' negligent,' in the
Act declaring the liability of the plaintiff in error has great
significance, and can only be reconciled with a legislative pur-
pose to impose upon the company the duty of absolutely con-
trolling this substance when it should introduce it into places
where, if it escaped control, it would menace the lives and prop-
erty of others, who had no control over it, and were without
fault themselves contributing to injury." ^*
it. where the action is based on a ^ 24 Ohio Gas Fuel Co. v. Andrews,
defective construction of such plant. 50 Ohio St. 695; 35 N. E. Rep.
Hyde Park, etc., Co. v. Porter, 167 1059; 29 L. R. A. 337. See Belvi-
111. 276; 47 N. E. Rep. 206; affirm- dere Gaslight Co. v. Jackson, 81
ing 64 111. App. 152. 111. App. 424.
LEAKS AND EXPLOSIONS. 695
§607. Explosion occasioned by a violation of a statute.
A gas company may be liable for an injury occasioned by a
violation of a statute prescribing regulations to be observed by
it. Such was held to be the case where a company failed to test
its pipes to a pressure of four hundred pounds to the square
inch, as a statute required, and which forbade it to use a pres-
sure of over three hundred pounds in conveying gas. The gas
escaped because the pipes did not come up to the test pre-
scribed. "° And where the injury was occasioned by gas escap--
ing from a pipe laid by the company on the surface of the
higliway, the company was held liable, although the particular
injury could not have been foreseen."" And where a gas com-
pany unlawfully laid its pipe line in a highway, from wdiich gas
escaped and entered a defective water pij>e of the plaintiff and
polluted the water in his well, the company was held liable,
and it could not escape liability by showing the defect in the
water pipe. " Where a company," said the court, " chooses for
its profit to bring a gas pipe upon the land, they must keep it
there at its own peril." It is no answer to say, " Your pipe is
bad, and the gas for that reason got into it." ^^
§608. Laying gas main in navigable river.
It is an illegal act to lay a gas main on the bottom of a
navigable river, without sinking it beneath the soil of the bot-
tom ; and the company will be liable for all the consequences of
its act in so illegally laying its pipe. Thus, where a gas com-
pany had so laid its pipe on the bottom of a river, and a boat
ran against it, breaking it, whereby gas escaped and, igniting
25 Alexandria Mining, etc.. Co. v. Gas Co., 84 L. T. 765; 65 J. P. 680.
Irish, 16 Ind. App. 534; 44 N. E. A tenant carrying on a livery
Rep. 680. stable without taking out a license
26 Indiana Natural, etc., Co. v. required by an ordinance or a stat-
McMath, 26 Ind. App. 154; 57 N. ute, cannot recover damages occa-
E. Rep. 593; 59 N. E. Rep. 287. sioned by the escape of gas, even
Lebanon, etc., Co. v. Leap, 139 though he might sustain an action
Ind. 443 ; 39 N. E. Rep. 57 ; 29 L. for a nuisance to real estate. Sher-
R. A. 342. man v. Fall River Iron Works Co.,
27 Batcheller v. Tunbridge Wells 5 Allen 213.
696 OIL AND GAS.
from the furnace of tlie boat, set the boat on fire, it was held
that the gas company was liable for its destruction. "** But
where the trailing anchor of a vessel caught and injured a gas
pipe laid upon the bed of a navigable river, it was held that if
the captain of the vessel, upon striking the pipe could, with
proper care and reasonable precaution, have then prevented the
injury, the owners of the vessel would be liable for all injury
which could thus have been prevented. "°
§609. Overwhelming disaster.
Where an overwhelming disaster falls upon a gas company's
works, its efforts to pTevent injuries to the public must be meas-
ured by the extent of the disaster. An illustration is afforded
by the great fire in the city of Boston, J^ovember 0, 1872. A
gas company's mains were broken, by the falling buildings,
causing many leaks ; the gas esc;r|Ded throughout the burnt
district, causing frequent explosions ; and it escaped into
cesspools and sewers in dangerous quantities. Notwithstand-
ing these facts, the gas company on the subsequent day and night
continued to manufacture gas in large quantities ; and on the
morning of that day the company was notified by a porter of
a building that gas was escaping, and especially from the next
adjoining building. The company had many valve boxes in
the vicinity which were not closed, but there was no evidence
that the fire, Avhich burnt the building, for which the suit was
brought and of which its porter had given notice of the leak,
was caused by the leak of which the company was notified in
the morning, or that by shutting the valves in the vicinity the
escape of gas would have been stopped, or that it was practically
possible to get at the valves for that purpose. It was held that
there was no evidence of negligence, and on the evidence the
jury was not warranted in finding for the plaintiff. The court
28 Omslaer v. Philadelphia Co., 31 This is manifestly correct, for no
Fed. Rep. .354; 18 Pittsb. L. J. (N. *• man can excuse his own negligence
S.) 4. by the negligent or illegal act of
20 Milwaukee Gaslight Co. v. another.
Schooner Gamecock, 23 Wis. 144.
LEAKS AXD EXPLOSIONS. 697
did not consider it was the duty of the gas company to shut off
the gas from the entire city, for that would probably have
brought a train of disasters to the inhabitants and caused great
inconvenience, by depriving the city of light and furnishing an
opportunity for thieves and thugs. While the danger was great,
requiring of the company great vigilance and great efforts to
prevent injuries to persons and property, yet the burden de-
volved upon the plaintiff to show that it had not done all it
could do and that it could have prevented the explosion and
consequent fire. In this instance, it was not sufficient to show
an escape of gas, an explosion and a resultant damage, for neg-
ligence could not be inferred from proof of these facts alone.
Something more was required.''"'
§610. Burden of proof.
The plaintiff necessarily must sustain the allegations of his
complaint or declaration ; and this, of course, casts upon him
the burden to prove that the defendant was guilty of the acts of
negligence charged therein. In this respect, cases of injuries or
damages inflicted by gas leaks or explosions do not differ from
other cases of negligence. Facts must be alleged and shown
affirmatively by the plaintiff that the defendant gas company by
its own act or by its omission has violated some duty incumbent
upon it which has caused the injury of which complaint is
made.^^ If the charge be that the defendant gas company failed
to discharge its duty in keeping its mains in a sound and safe
condition for transmitting gas, the burden rests upon it to show
30 Hutchinson v. Boston Gaslight Smith v. Boston Gaslight Co.. 129
Co., 122 Mass. 219. See Koelsch v. Mass. 318; \Yashington Gaslight Co.
Philaaelphia Co., 152 Pa. St. 355; v. EcklofT, 22 Wash. L. Rep. G5G;
25 Atl. Rep. 522; 34 Am. St. Rep. McGahan v. Indianapolis, etc.. Gas
653; 18 L. R. A. 759; Consolidated Co., 140 Ind. 335; 37 N. E. Rep.
Gas Co. V. Crocker, 82 Md. 113; 33 601; 29 L. R. A. 355; 49 Am. St.
Atl. Rep. 423; State v. Consolidated Rep. 199; Hutchinson v. Boston
Gas Co., 85 Md. 637; 37 Atl. Rep. Gaslight Co., 122 Mass. 219; Straw-
263. bridge v. Philadelpliia. 13 Phila.
31 Holly V. Boston Gaslight Co., 173; 36 Leg. Int. 276; 2 Penny.
8 Gray 123; 69 Am. Dec. 233; 419; 13 Rep. 216.
698 OIL AND GAS.
that fact in order to recover.^- Where the owner of a house
dug a tunnel from his cellar, under the street pavement, to a
sewer, and an employee of the city searching for a leak in front
of the house, not knowing that there was a tunnel there, lighted
a paper, and moved it along the surface of the sidewalk, that
being the usual method of discovering leaks, and ignited a jet
of escaping gas, which he extinguished by covering it with dirt ;
and five minutes after an explosion occurred in the cellar, it
was held that the city was not liable.^^ And where the evidence
showed that an employee of a gas company went into the cellar
with a candle to fix the pipes ; that soon after gas began to escape
in large quantities, and some workmen went into the cellar to
rescue the employee, who had become unconscious ; that as they
were about to pick him up "a big flash of fire came around us,
and scattered all over the floor," as one of the witnesses testified ;
and there was no evidence that th^ employee had lighted the
candle, or had any other light with him; nor any evidence as to
the cause of the explosion, it was held that no negligence on
the part of the gas company was shown, ^*
§611. Presumption of neg-ligence does not arise from proof of ex-
plosion.
What will be sufficient proof to make a prima facie case of
negligence must depend on the particulars of each particular
case. Courts judicially know that both illuminating and nat-
ural gas is highly explosive and combustible, and that it will
explode when ignited by fire."^ The courts will also take judi-
32 Holly V. Boston Gaslight Co.. 35 Alexander Mining, etc., Co. v.
supra; Siebrecht v. East River Gas Irish, 16 Ind. App. 534; 44 N. E.
Co., 21 N. Y. App. Div. 110; 47 N. Rep. 680; Brown v. Spillraan, 155
Y. Supp. 262; Heh v. Consolidated U. S. 665; 15 Sup. Ct. Rep. 245;
Gas Co., 201 Pa. St. 443; 50 All. Fuchs v. St. Louis, 133 Mo. 168; 31
Rep. 994; 88 Am. St. Rep. 819. S. W. Rep. 115; 34 S. W. Rep. 508;
33Littnian v. New York City, 36 34 L. R. A. 118 (gases from petro-
X. Y. App. Div. 189; .55 N. Y. Supp. leum).
383; affirmed 159 N. Y. 559; ,54 N. But it will not take iudicial
E. Rep. 1093. notice that dry, fine coal dust is a
34 Schauni v. Equitable Gaslight dangerous and explosive element.
Co.. 15 N. Y. App. Div. 74; 44 N. Cherokee, etc., Co. v. Wilson, 47
Y. Supp. 284. Kan. 460; 28 Pac. Rep. 178.
LEAKS A:srD EXPLOSIONS. 699
cial notice that gas will not explode unless caused by some
outside agency, as the introduction of fire or an electric spark ;
and also that it can be confined in pipes and safely conducted
through the streets to the consumer. In addition to this is the
rule that gas companies distributing gas must exercise vigilance
to prevent injury to persons while remaining on the premises
where manufactured, or while being carried through its own
l)il>es to its consumers,^" and the vigilance required is of a nmch
higher degree where the pipes are laid in the streets of a densely
populated city than where laid in the country.^' But notwith-
standing these facts, proof of the explosion and the resulting
injury will not establish the liability of the gas company. It
must not be forgotten that the cause of action is founded upon
the negligence of the defendant, and that negligence must be
shown before there can be a recovery. Thus, where it was
shown that an explosion occurred in an oil refinery, followed
by a fire ; that the burning oil ran down a pipe used by the oil
company to pump oil into the refinery from vessels lying at the
wharf, and entered a lighter filled with oil, which exploded,
communicating the fire to the plaintiff's vessel about twenty
feet distant, the fire being occasioned by the explosion of a
boiler, called an " agitator," used in the refinery ; but there was
no evidence to show that it was not a proper boiler, such as
was generally in use, or that the explosion was occasioned by an
improper use of it, or that it was defective. On this evidence
the court held that the defendant oil company was not liable, as
it was only liable for its negligence, the mere fact of an explo-
sion not raising a presumption of negligence. The court was
careful to call attention to the fact that there was no contractual
relation between the plaintiff and defendant — as there is, for
instance, between a passenger and the railway company carry-
ing him — and quoted an established work on negligence, where
it is said : " It is believed that it is never true, except in con-
tractual relations, that the proof of the mere fact that the acci-
36 Tiehr v. Consolidated Gas Co., st Mississienawa Mining Co. v.
51 N. Y. App. Div. 446; 65 N. Y. Patton, 129 Ind. 472; 28 N. E. Rep.
Supp. 10. 1113; 28 Am. St. Rep. 203.
700 OIL AND GAS.
dent happened to the plaintiff, without more, will amount to
prima facie proof of negligence on the part of the defendant." ^*
" We are of the opinion that the evidence presented by the
plaintiffs failed to establish a cause of action against the de-
fendant, and consequently that the trial court erred in denying
the motion to dismiss the complaint made after plaintiffs had
rested their case. The fact that the injury sustained by the
plaintiffs may have been a direct result of the fire which origi-
nated upon the premises of the defendant does not of itself
render it liable to respond in damages therefor. The defendant
was not maintaining a nuisance. Its business was lawful, and,
in its conduct, the law does not impose the obligation of saving
harmless others from the consequences resulting from the occur-
rence of inevitable accident, but rather burdens it simply with
the duty of using reasonable care and caution to save others
from injury. If it omitted that dujiy, and failed to observe that
ordinary care which was incumbent upon it, then, because of
such neglect, it became legally chargeable with the damages
directly resulting therefrom, but not otherwise. As the existr
ence of negligence is an affirmative fact to be established by
him who alleges it as a foundation of his right of recovery, it
was incumbent upon the plaintiffs to point out, by evidence, the
defendant's fault, for the presumption is, until the contrary ap^
pears, that every man has performed his duty. This rule has
been frequently applied in cases where a fire has spread over
and upon the lands of an adjoining owner to his damage. It
has likewise been enforced against persons seeking to recover
for damages sustained by fires originating from locomotives in
operation upon railroads. But the plaintiffs insist that, while
negligence cannot be inferred from the fact that the fire origi-
nated upon the premises of the defendant, it may be presumed
from the proof of an explosion. It is difficult to discover a
reason for holding that proof of the occurrence of a destructive
fire in defendant's premises does not raise a presumption of
negligence, while proof of the*mere fact of an explosion does.
It has been said that there is a general disposition among men
38 2 Thomp. Neg. Sec. 1227.
LEAKS AND EXPT.OSIOlSrS.
"01
to preserve their property, and escape liability, and that ordi-
narily these motives will secure that degree of care and caution
which the safety of the public demands, and hence the pre-
sumption of duty performed, which in cases of fire will protect
him until the facts be proven from which negligence can be in-
ferred. For precisely the same reason he is entitled to the
benefit of such presumption in the case of an explosion, where
no contractual relation exists ; and the plaintiffs must go one
step further, and prove the facts from which it can be legiti-
mately inferred that either in construction, repair, or operation,
he omitted that reasonable care and caution which he should
have observed." ^^
39 Cosulich V. standard Oil Co.,
122 N. Y. 118; 25 N. E. Rep. 259,
reversing 55 N. Y. Super. Ct. Rep.
384. To support its conclusion the
court cited Walker v. Chicago, etc.,
R. R. Co., 71 la. 658; 33 N. W.
Rep. 224 (an explosion of dyna-
mite) ; Huff V. Austin, 46 Ohio St.
386; 21 N. E. Rep. 804 (an explo-
sion of a steam boiler) ; Young v.
Bransford, 12 Lea. 232 (an explo-
sion of a steam boiler) ; and re-
fused to follow Rose V. Stephens,
etc.. Transportation Co., 11 Fed.
Rep. 438; 20 Blatchf. 411. Followed
in Reiss v. Steam Co., 128 N. Y.
103; 28 N. E. Rep. 24; Loeber v.
Roberts, 17 N. Y. Supp. 378; Bab-
cock V. Fitchburg R. R. Co., 140
N. Y^ 308; 35 N. E. Rep. 506;
Losee v. Buchanan, 51 N. Y. 476
(steam boiler exploding) ; Morris
V. Southworth, 154 111. 118; 39 N.
E. Rep. 1099; Marshall v. Welwood,
38 N. J. L. 339; Washington Gas-
light Co. V. Eckloff, 4 App. D. C.
174 (error to charge the injury that
an unusual explosion on the prem-
ises was prima facie evidence of
negligence) ; Lee v. Vacuum Oil Co.,
54 Hun 156; 7 N. Y^ Sup. 426.
The mere fact that a building was
set on fire from gas is not sufficient
to justify the inference that an in-
creased pressure of gas caused the
fire. Barrickman v. Marion Oil Co.,
45 W. Va. 6.34; 32 S. E. Rep. 327;
44 L. R. A. 92.
Mere ownership of gas in the
pipes does not. of itself, render the
owner liable for injuries caused by
escaping gas, if the company is in
no manner guilty of negligence.
People's Gaslight Co. v. Amphlett,
93 111. App. 194.
The explosion of a hot-water radi-
ator in a room in a railroad hotel
does not raise a presumption of
negligence on the part of the lessor,
who had charge of the apparatus,
toward a waiting passenger. Kirby
v. Delaware, etc., R. R. Co., 20 N.
Y. App. Div. 473; 46 N. Y. Supp.
777.
A jury may find negligence from
the breaking of a gas main and the
consequent escape of gas; but it is
for the jurors to say whether thc7
will do so, and, if there are other
circumstances bearing on the ques-
tion, they must weigh them all. In-
structions that evidence " is suffi-
cient to show," or " has a tendency
to show," or is " enough to show "
702 « OIL AND GAS.
S612. Presumption of negligence arising- from proof of explosion.
jSTot in all jurisdictions does the rnlo prevail that has been
announced in ]^ew York. The United States Court for the
Southern District of that State refused to follow that rule, and
adopted the rule that an explosion of oil in a building was prima
facie evidence of negligence on the part of the defendant. " In
the Court of Appeals of this State," said District Judge Brown,
'^ it was held that an explosion in a building, unaccompanied
by any explanation by the owner, or by any evidence of care
on his part, furnishes no presumption of negligence " ; *" and
this was reaffirmed in Eeiss v. Steam Company.*^ The oppo-
site conclusion, held by Judge Wallace,*^ seems to me to be more"
sensible and just, and more in accordance with legal principles
and analogies. The same ruling was made on appeal in the
Circuit Court.*^ This ruling is based upon the principle (of
wide application in the law of t^ts), that injuries which do
not ordinarily happen when reasonable and proper care is taken
to avoid them, afford a presumption of negligence, and place
upon the defendant the burden of proof that ordinary and rea-
sonable care was taken to avoid the accident ; and also upon the
princijile of evidence^ that he who has peculiarly within his
power the means of producing evidence of reasonable care, shall
be required to produce it." The opinion concludes, however:
" The cause of the accident is, in fact, unexplained. Either an
accidental fire, or some violation of the rules by workmen in
smoking, or carrying a light, seem the only imaginable causes.
or " is prima facie evidence of," are 51 N. Y. App. Div. 446 ; 65 N. Y.
not to be understood as meaning Supp. 10.
that there is a presumption of fact, 4o Citing Cozulich v. Standard Oil
but that the jury are at liberty to Co., 122 N. Y. 118; 25 N. E. Rep.
draw the inference from them. Car- 259.
mody V. Boston Gaslight Co., 162 4i 128 N. Y. 103; 28 N. .E. Pv.ep.
Mass. 539; 39 N. E. Rep. 184; 24.
Smith V. Boston Gaslight Co., 129 42 Citing Rose v. Stephens, etc.,
Mass. 318. (See this case noticed Transportation Co.. 11 Fed. Rep.
in section 610) ; Hutchinson v. Bo(»^ 438; 20 Blatchf. 411.
ton Gaslight Co., 122 Mass. 219. 43 Citing The Sydney, 27 Fed.
(See this case noted in section Rep. 119, 123.
609) ; Tichr v. Consolidated Gas Co.,
LEAKS AXD EXPLOSIONS. - 703
. . . The evidence offered by the defendants shows a busi-
ness not specially dangerous when prosecuted with reasonable
care ; that there were suitable regulations, arrangements, and
reasonable care exercised ; and that there was no neglect by the
defendants to enforce such regulations. I think this suffi-
ciently rebuts the prima facie presumption of negligence; and
on this ground the libel should be dismissed, but without
costs." "
§613. Stop-cock on street line.
Unless some statute (or perhaps a municipal ordinance)
requires it, a gas company is not required to place a stop-
cock at the street line, or outside the building supplied, so it can
shut off the gas without entering the premises when necessary ;
and if the stop-cock is placed within the building supplied, the
company is not required to enter and cut off the supply when
notified by the consumer to discontinue the gas. In such an
instance it is the duty of the owner of the building, or the tenant
if in possession, to cut off the supply by turning the stop-cock.*^
Where the stop-cock in a supply pipe outside of a mill supplied
with gas had been covered up by a third person and could not
be used to turn off the gas during a fire in the mill, it was held
that the owner of the building could not recover from the person
who had covered it up where the mill took fire from an inde-
pendent cause, and the owner had allowed the stop-cock to re-
main covered more than a year ; for the inability to use the
stop-cock was not the proximate cause of the injury, although
4* Warn v. Davis Oil Co., 61 Fed. and operation of its plant, using
Rep. 631 ; Judson v. Giant Powder the most and best machinery and
Co., 107 Cal. 549; 40 Pac. Rep. appliances, and did all a prudent
1020; 29 L. R. A. 718; Dunlap person could do to prevent gas es-
Steamboat v. Reliance, 2 Fed. Rep. caping. did not, of itself, in case
249 ; Grimsley v. Hawkins, 46 Fed. actual damage resulted to others,
Rep. 400 (boiler explosion). relieve the company from liability.
In Belvidere Gaslight and Fuel See also Rockford Gaslight, etc., Co.
Co. V. Jackson, 81 Til. App. 424, it v. Ernst, 68 111. App. 300.
was held that the fact of the gas 45 Holden v. Liverpool Gas Co.,
company using all reasonable and 3 C. B. 1 ; 15 L. J. C. P. 301 ; 10
proper precautions in the erection Jur. 883.
704 . OIL AND GAS.
the damages may have been increased by the escaping gas in-
creasing the flames.'*''
§614. Intervening agency.
A gas company is bound to know the consequences that will
probably follow its act of negligence ; as, for instance, the use
of defective pipes and the turning of gas into them, especially
at a high pressure. In an instance of use of such pipes and the
maintenance of a high pressure, and gas escaped and an explo-
sion followed, it was said that it was not necessary to charge in
the complaint that the gas company had special knowledge or
notice of the happening of such consequences flowing from its
original negligence, in the order in which it occurred. " No
principle is better settled," said the court, " than the one that
every person who is sui juris is presumed to know and in duty
bound to anticipate the natural arid usual consequences flowing
from his unlawful acts or omissions. The only serious trouble
that sometimes arises in the application of this principle is in
determining whether or not a given result may be said to be such
a natural and ordinary one as to be properly chargeable to the
defendant's negligent act or omission, and this is what has given
rise to the doctrine of proximate cause. The negligence of the
defendant must be the proximate cause of the injury, and it is
the proximate cause thereof, if it can be properly said to have
produced the result complained of, in natural and continuous
sequence, unbroken by any efficient intervening cause. The
negligence charged may be the pTOximate cause, although not
46 Cochran v. Philadelphia, etc., cut off the gas when its use is dis-
Co., 184 Pa. St. 565; 39 All. Rep. continued, or if it undertake to
296. close the aperture in the service
Where it is alleged a leak oo- pipe and does it so gas escapes, it
curred at a certain place, evidence will be liable for an explosion oc-
as to whether a stop-cock on the casioned by the gas escaping be-
top of an upright pipe is a danger- cause of the imperfect work. To
ous method of shutting off the gas undertake to do the work, and to
must be rejected. State v. Consoli- do it imperfectly, is such an act of
dated Gas Co., 85 Md. 637 ; 37 Atl. negligence as will render the com-
Rep. 263. pany liable. Lanigan v. New York,
If a gas company imperfectly etc., Co., 71 N. Y. 29.
LEAKS AXD EXPI-OSIOXS.
ro5
the immediate one ; it is enough if it he the efficient cause which
set in motion the chain of circumstances leading up to the in-
jury." *' Abundance of illustrations will he found in these
pages of the principle thus laid down.*^ Where a complaint al-
leged that the gas company negligently failed to turn off the
gas from a tenement, after directions so to do, in order that a
defect in the pipe within the cellar might be located and re-
paired; and that the plaintiff, a plumber, while searching for
the defect, was injured by an explosion, it was held that it did
not show the injury was the proximate cause of the gas com-
pany's negligence ; for there was a presumption that there had
been an interyening responsible agency, for which such com-
pany was not responsible/^
§615. Inspection of pipes or mains.
A gas company is chargeable wdth notice of the fact that gas
pipes and mains are liable to rust and decay, and by reason of
*7 Alexandria Mining, etc., Co. v.
Irish, 16 Ind. App. 534; 44 X. E.
Rep. 680.
48 An illustration came under the
personal observation of the writer.
Natural gas escaped from a street
main and entered a sewer. The gas
company were negligent in permit-
ting it to escape. It flowed along
the sewer until it came to a man-
hole in the street, and escaped ; and
a horse's iron shoe striking upon
the asphalt pavement surrounding
the man-hole produced a spark of
fire which ignited the gas escaping
from the man-hole. An explosion
was thereby occasioned and the
horse injured. The gas company
settled for the injury occasioned by
the explosion.
Anotner case came under the Avrit-
er's notice somewhat illustrating
the subject of this section. The case
was in the Federal Circuit Court of
Indiana. A plumber took a key, —
which was about six feet long, — to
turn oft water, at the property line,
of a city water company. He got
on the front end of an open street
railway car drawn by horses, with
nothing between him and the driver.
In handling the brake the driver let
it loose in the usual way. when the
handle flew around, struck the key
in the plumber's hand, and knocked
it from his grasp. The key struck
the hammer of a revolver in the
driver's pantaloons' hip-pocket,
causing the revolver to go ofl'. The
bullet from the revolver lodged in
the brain of the plumber, killing
him instantly. It was illegal for
the driver to carry a revolver, and
contrary to the street railway com-
pany's orders ; but the company was
held liable.
*!> McGahon v. Indianapolis, etc.,
Co., 140 Ind. 335; 37 N. E. Rep.
601 ; 29 L. R. A. 355.
706 OIL AND GAS.
such rusting or decaying permit gas to escape.^" They are also
chargeable with notice of the liability of pipes and mains laid
in streets to become broken by reason of the travel in the streets
or of the settling of the earth, especially when sewers have been
or are being constructed or other pipes laid therein, or the
streets are being repaired. And in these modern times when
the use of electricity has become so universal there is no doubt
that they are chargeable with notice of its effect upon iron or
steel pipes, and its tendency to destroy the fibres of the iron or
steel, weaken the pipes and render them unsafe instruments for
the conveyance of gas.^^ Being thus chargeable, a duty de-
volves upon gas companies to inspect their pipes and mains and
the connections therewith. It must use reasonable care in mak-
ing these inspections ; and if a leak could have been discovered
and prevented by such an inspection, that fact of itself will be
sufficient to charge the company ijvith negligence, if it fail to
make the inspection.^' And this is true of a company that pur-
chases the plant of another company, with respect to such plant ;
for its liability is not dependent on its knowledge of the pipes'
defective condition, or escaping gas ; but upon its care in keep-
ing the pipes in a reasonably safe condition, and using them
so as to not unnecessarily injure persons and their property.^^
It has been held that it is a question for the jury whether a gas
company which had no system of inspection, but waited for
complaints before ordering an inspection, to detect a leak in
the pipes, is chargeable with negligence.^* In a Pennsylvania
case it was said : " While no absolute standard of duty in
50 Pritchard v. Consolidated Gas 51 N. Y. App. Div. 446; 65 N. Y.
Co., 2 Pa. Super. Ct. 179; 39 W. N. Supp. 10; Consolidated Gas Co. v.
C. 28. Crocker, 82 Md. 113; 33 Atl. Rep.
51 Siebrecht v. East River Gas 423; 31 L. R. A. 785; Koplan v.
Co., 21 N. Y. App. Div. 110; 47 Boston Gaslight Co., 177 Mass. 15;
N. Y. Supp. 262; Koplan v. Boston 58 N. E. Rep. 183.
Gaslight Co., 177 Mass. 15; 58 N. 53 Dow v. Winnipesaukee Gas,
E. Rep. 183. etc.. Co., 69 N. H. 312; 41 Atl. Rep.
52 Pine Bluff, etc., Co. v. Schnei- 288; 42 L. R. A. 569.
der, 62 Ark. 109; 34 S. W. Rep, 54 Pritchard v. Gas Co., 2 Pa.
547; 33 L. R. A. 366; Rockford Sup. Ct. Rep. 179 ; Pritchard v. Gas
Gaslight Co. v. Ernst, 68 111. App. Co., 39 W. N. Cas. 28.
300; Tiehr v. Consolidated Gas Co.,
LEAKS AXD EXPLOSIOXS.
707
dealing with siicli agencies can be prescribed, it is safe to say,
in general terms, that every reasonable precaution suggested by
experience and the known dangers of the subject ought to be
taken. This would require, in the case of a gas company, not
only that its pipes and fittings should be of such material and
workmanship, and laid in the ground with such skill and care,
as to provide against the escape of gas therefrom when new, but
that such system of inspection should be maintained as would
insure reasonable promptness in the detection of all leaks that
might occur from the deterioration of the material of the pipes
or from any other cause within the circumspection of men of
ordinary skill in the business.®^ It requires nothing unreason-
able — it does not require that the company shall keep up a con-
stant inspection all along its lines, without reference to the ex-
istence or non-existence of probable cause for the occurrence of
leaks or escape of gas." ^'^ Where the company could have dis-
covered the defect in its pipe by the smell of the escaping gas,
if it had made a proper inspection, it was held that it was no de-
fense in the company to show that it sent a workman to repair
the pipe as soon as it had notice of the leak, he arriving too late
to do so.^^ Of course, a gas company is required only to inspect
its own pipes and apparatus. *^^ Strictly speaking, it has no
right to enter upon private premises, except in so far as its own
projierty extends ; but the usual contract between a gas company
and a consumer gives them the right to enter the premises and
inspect the gas apparatus, not, however, imposing upon it, in
terms, a duty to inspect. There is no doubt that if a gas com-
55 Citing Kibele v. City of Phila- 57 Mose v. Hastings, etc., Co., 4
delphia, 105 Pa. St. 41; Holly v. F. and F. 324; 13 Gas J. 231; Sie-
Gaslight Co., 8 Gray 123; 69 Am. brecht v. East River Gas Co., 21
Dec. 273; Smith v. Gaslight Co., 129 N. Y. App. Div. 110; 47 N. Y. Supp.
Mass. 318. 262; Consumers' Gas Co. v. Cor-
5 6 Koelsch V. Philadelphia Co., baley, 14 Ind. App. 549; 43 N. E.
152 Pa. St. 355; 25 Atl. Rep. 522; Rep. 237.
34 Am. St. Rep. 653; 18 L. R. A. *57 United Oil Co. v. Roseberry
759 ; quoted in Consolidated Gas Co. (Colo.), 69 Pac. Rep. 588. See
V. Crocker, 82 Md. 112; 33 Atl. Smith v. Pawtucket Gas Co., 25
Rep. 423; 31 L. R. A. 785; State R. I. — ; 52 Atl. Rep. 1078.
\. Consolidated Gas Co., 85 Md.
637; 37 Atl. Rep. 263.
708 OIL AND GAS.
pany undertake the inspection of the pipes and gas fixtures of
a house or building they are bound to exercise diligence in dis-
covering leaks or escaping gas, the same as if they were their
own pipes and fixtnres.^^ A gas company may insist upon the
right to enter on the premises and inspect the pipes and gas
fixtures, before turning on a supply of gas, to see if they are in
a fit condition to receive it ; "^^ but it in fact is not bound to do so,
for it may take the property owner's assurance that all things
have been made safe for its reception, or it may refuse to fur-
nish him gas, imless it be given the right to inspect. If, there-
fore, after such assurance the company should turn on the gas,
which should escape at a point beyond the place where the com-
pany's duty to inspect ceases, and from the escaping gas an ex-
plosion occur, the neglect would be that of the property owner,
and not that of the gas company.^** An English case furnishes
an illustration on this point. The plaintiff was the owner of
a new house, which was divided into two separate flats, an
upper and lower one, each flat having a separate entrance from
the street. When he built the house, the plaintiff put in a
service pipe from the street, running it under the hall door steps
inside the wall of the house to the upper flat. The tenant of
the upper flat gave notice to the gas company to supply his flat
with gas ; and thereupon the company made connection between
its uiain in the street and the service pipe, supplied and fixed a
meter in the flat, and turned on the gas. Owing to a defect
in the service pipe, which the plaintiff had supplied, leading to
the meter, gas escaped and exploded, injuring the house, about
an hour after it was turned on. In a suit to recover damages
for injuries to the house, the court ruled that there was no duty
resting on the gas company to test the service pipe; and the jury
having found that proper connection had been made by the coni-
es Lannen v. Albany Gaslight Co.. Gas Co., 27 N. Y. App. Div. 584 ;
46 Barb. 264; 44 N. Y. 459; Fergu- 50 N. Y. Supp. 537.
son V. Boston Co., 170 Mass. 182; 59 Flint v. Gloucester Gaslight
49 N. E, Rep. 115. See Vallee *s Co., 3 Allen 343; 9 Allen 552.
qualite v. New City Gas Co., 7 Am. <">o Holden v. Liverpool Gas Co.. 3
Law Rev. 767; Bastian v. Keystone C. B. 1 ; 15 L. J. C. P. 301; 10 Jur.
883.
LEAKS AXD EXPLOSIONS.
TOO
pany between its main and tlie service pipe, judgment was given
for it, the court not sustaining the plaintiff in his contention
that if the company choose to use a pipe not laid by it, it was its
duty to see if it were in good condition. ^^ If the gas company
had put in the defective service jupe, there would have been no
doubt of its liability to the plaintiff.""
§616. Duty to make repairs immediately. — Available force.
It is not only the duty of a gas company to institute and main-
tain an ethcient system of oversight and superintendence, but
to be prepared with sufficient force ready to put in action and
fully competent to supply and furnish a prompt remedy for ac-
cidents, defects, and the like.*'^ This rule requires the company
to take all necessary steps to prevent damages that may be occa-
sioned by a leak as soon as it has knowledge of it; and, as else-
where stated, it may be guilty of negligence in not discovering
such leak. If it has no knowledge of the leak until informed
of it, and has not been otherwise guilty of negligence — as, for
61 Henderson v. New Castle, etc.,
Gas Co.. 37 Sol. J. 403.
62 Burrows v. Marsh Gas and
Coke Co., L. R. 7 Exch. 96; 41 L. J.
Exch. 46; 26 L. T. 318; 20 W. R.
493.
When the evidence showed negli-
gence on the part of the gas com-
pany, the admission of opinion evi-
dence as to whether an inspection
should have been made was held
not judicial error. United Oil Co.
V. Roseberry ( Colo. ) , 69 Pac. Rep.
588.
Whether or not a gas company is
guilty of negligence in not inspect-
ing a house that has been vacant for
nearly a month, is a question for
the jury. Baltimore Consolidated
Gas Co. V. Getty (Md.), 54 Atl.
Kep. 660.
If an agent of a gas company
testifies that he inspected the prem-
ises and did not find gas escaping
in dangerous quantities; a witness
may testify that he told him at the
time that there was gas enough in
the cellar to blow up the house if
he would go down into it with a
light, in order to contradict him.
Hunt V. Lowell Gaslight Co.. 3 Al-
len 418.
63 Holly V. Boston Gaslight Co.,
8 Gray 123; 69 Am. Dec. 233:
Rockford, etc., Co. v. Ernst, 68 111.
App. 300; Belvidere, etc., Co. v.
Jackson, 81 111. App. 424; Barrick-
man v. Marion Oil Co., 45 W. Va.
634 ; 32 S. E. Rep. 327 ; 44 L. R. A.
92; Otersbach v. Philadelphia. 161
Pa. St. Ill; 28 Atl. Rep. 991; An-
derson V. Standard Gaslight Co., 40
N. Y. Supp. 671; 17 X. Y. Misc.
Rep. 625; Pine BluflP. etc.. Co. v.
Schneider. 62 Ark. 109; 34 S. W.
Rep. 547; 33 L. R. A. 366.
710 OIL AND GAS.
instance, not having used proper piping, or maintained a proper
system of inspection — its liability will depend upon the ques-
tion whether or not it has used due diligence to prevent the in-
jury after it has received notice of the leak. The liability of
the company turns upon the question whether it has used due
care to prevent an injury after it has notice of the danger ; and
the care it must use, whether due care, must be measured by the
possibility and likelihood of an injury being inflicted.*** In an
instance of this kind evidence, in defense, of the compan}''^ sys-
tem and course of business in regard to complaints of leaks is
admissible ; ^^ and also of the precautions it takes to repair
leaks.'*'' In the case of a great fire — as the Chicago and Boston
fires — the celerity required in stopping leaks must be measured
by their number, the extent of the territory over which they
are spread, and the amount of available force obtainable to
make the repairs. In such instances great energy is required
of the company, because the danger is great, but not the im-
possible.®^
§617. Notice of leaks.
It is the duty of a gas company as soon as it receives notice
of a leak to take all necessary steps to prevent an explosion. It
matters not through what sources it receives information that
there is a leak, it must at once act. It cannot be expected that
a gas company will repair a leak of which it has no notice ; but
it may be guilty of negligence in not discovering it, and if it is,
it will be liable for damages occasioned by the leak.''^ Any one
64 Hunt V. Lowell Cxaslight Co., C6 Powers v. Boston Gaslight Co.,
1 Allen 343 ; Chisholm v. Atlanta 158 Mass. 257 ; 33 N. E. Rep. 523.
Gaslight Co., 57 Ga. 28; Pine Bluff, o7 Hutchinson v. Boston Gaslight
etc., Co. V. McCain, 62 Ark. 118; Co., 122 Mass. 219.
34 S. W. Rep. 549; Rockford Gas- cs pine Bluff, etc.. Co. v. Schnei-
light and Coke Co. v. Ernst, 68 111. der. 62 Ark. 109; 34 S. W. Rep.
App. 300; Consolidated Gas Co. v. 547; 33 L. R. A. 366; State v. Con-
Crocker, 82 Md. 113; 34 Atl. R^. solidated Gas Co., 85 Md. 637; 37
423; 31 L. R. A. 785; Hoin v. Lan- Atl. Rep. 263; Siebrecht v. East
caster, 13 Lane. L. Rev. 131. River Gas Co., 21 N. Y. App. Div.
<-. Holly V. Boston Gaslight Co., 110; 47 N. Y. Supp. 262.
8 Gray 123; 69 Am. Dec. 233.
LEAKS a:vd explosions. Til
may give the company notice of the leak, and it will he hound
hy it. In one case it was said that " any inmate of plaintiff's
family was competent and had a right to communicate to the
defendants that the gas was escaping from some leak in their
pipes into the house, making its occupancy either unsafe or dis-
agreeable or offensive " ; that it was proper for the plaintiff's
wife to send a message to the company to that effect by any per-
son to whom she thought fit to intrust it; and that it was im-
material how, by what means, or through whom it obtained in-
formation, so that it was sufficient to inform them of the leak.®*
In an action for damages occasioned by gas escaping into plain-
tiff's cellar from a break in the main pipe in the street, it was
decided by the court " that if the defendant's servants, the offi-
cers of the company, did not know, and by the use of due care
could not ascertain, that the gas was escaping into the plaintiff's
house, or had reasonable cause to believe that it was not, and no
notice was given by the inmates of the house to them that gas
was in the house, the defendant is not liable ; but if they did
know, or if, with their knowledge of the condition of the street,
they had reasonable cause to suspect that the gas had entered
or was entering the plaintiff's house in dangerous quantities,
and gave no notice to the inmates, the company is liable in
damages if the plaintiff used due care." ^^ So where the ex-
plosion took place in a factory supplied neither with gas nor gas
pipes, the street line being within a few feet of the cellar wall ;
and a few months before a sewer connection for the building had
been made which passed under the street line ; the claim being
made that the gas escaped from a break in the pipe, passed
through the sand until it reached the sewer pipe, and followed
that into the cellar, and there collected ; in support of the claim
testimony being given that escaping gas had been detected at
that point for several weeks prior, and that soon afterwards an
old rusty break in the gas pipe immediately in front of the
premises was discovered; and that the company was notified,
more than two weeks before the accident, of the presence of
fin Hunt V. Lowell Gaslight Co., 7o Bartlett v. Boston Gaslight
1 Allen 343. Co., 122 Mass. 209.
712 OIL AND GAS.
escaping gas in the neighborhood, but did nothing in response
thereto; it was held that the case should go to the jury, even
though the company denied receipt of the notice, and gave evi-
dence in rebuttal of the plaintiff's case generall3\'^ Where
the gas escaped from the defective pipes of a plant the company
had piirchased, the court held that the company's liability was
not dependent on its knowledge of the pipes' defective condition
or of the escaping gas, but on the observance of care by it in
keeping the pipes in a reasonably safe condition, and using them
so as to not unnecessarily injure others/"
§618. Notice. — Failure to discover place of leak.
If a company has notice that gas is escaping, it must prevent
its escape at its peril. The apparent quantity escaping is im-
material ; for it is bound to investigate thoroughly the place
where it is escaping and prevent^uch escape ; and if it fall into
error concerning the probable danger, believing that only a small
quantity is escaping, and the gas in fact escapes in sufficient
quantity to be dangerous, the company will be liable for its
error in estimating the danger, and cannot shift the loss occa-
sioned by the explosion upon the person injured in his property
or person. '^^ So if the company believes the gas is escaping at
a particular place, and there attempts to prevent its escape by
repairing the supposed defect in its pipe or apparatus, when in
fact the leak is at another place, it will be liable for all the con-
sequences following from the gas escaping. ''* But where the
leak was apparently a small one, and the gas company's work-
men searched for it with a light, it was held to be a ques-
tion for the jury whether the action of the workmen was negli-
gent."^^
71 Henderson v. Allegheny Heat- 40 N. Y. Supp. 671 ; 17 N. Y. Misc.
ing Co., 179 Pa. St. 513; 39 W. N. Rep. 625.
C. 485; 36 Atl. Rep. 312. 74 Consolidated Gas Co. v. Crock-
72 Dow V. Winnipesaukee Gas, etc., er, 82 Md. 113; 34 Atl. Rep. 423;
Co., 69 N. H. 312; 41 Atl. B6p. 31 L. R. A. 785 ; Pine BluflF, etc., Co.
288; 42 L. R. A. 569. v. Schneider, 62 Ark. 109; 34 S. W.
7". See Otersbach v. Philadelphia, Rep. 547; 33 L. R. A. 366.
161 Pac. St. Ill; 28 Atl. Rep. 991. 75 Ellis v. London Gaslight Co..
Anderson v. Standard Gaslight Co., 32 Gas J. 849. See Richmond Gas
LEAKS AND EXPLOSIONS. 713
^619. Notice of leak, when not necessary to fix liability.
It is the duty of a gas company to employ safe and sound
mains or pipes for carrying gas to its customers. It must exer-
cise due care in selecting and laying them, with a view to pre-
vent leaks. If it does not exercise such care in selecting and
laying them, or if it knowingly lays defective pipes and mains,
it cannot insist that it had no notice of the leak that caused the
damages. In such an instance it is chargeable with notice of
their condition ; and if a leak occur by reason of which damage
is done to property or persons it will be liable, although it had
no notice of the leak.^*'
§620. Evidence of notice to gas company of danger to mains.
It is always admissible to show that the gas company had
notice of danger to its mains and pipes, from whatever cause,
when the charge i^ that the pipes were broken because of such
threatened danger and not repaired within proper time. Illus-
trations of this rule are excavations in the public streets in the
near proximity to the mains or pipes that were broken by reason
of such excavations. Thus where gas escaped from a broken
pipe in the street, the break being occasioned by reason of a
subway being constructed in the street, a letter from the chief
engineer of the construction company to the superintendent of
the gas company relative to its pipes and offering facilities to
it to examine and care for them ; and also testimony of conver-
Co. V. Baker. 146 Ind. 600; 45 N. "It was not necessary to aver
E. Rep. 1049 36 L. R. A. 683. See that appellant knew the gas was
Bastian v. Keystone Gas Co., 27 N. escaping from the broken pipes and
Y. App. Div. 584; 50 N. Y. Supp. percolating through the ground to
537. the place of the explosion. If the
70 Aurora Gaslight Co. v. Bishop, appellant had knowledge of the im-
81 111. App. 493; Hampton'v. Crad- perfect condition of the pipes as
ley Heath Gas Co.. 14 Gas J. 606; charged, it was bound to know also
Smith V. Boston Gaslight Co., 129 that gas would escape. This was
Mass. 318; Crane v. Columbus Con- one of the natural results of the
struction Co.. 73 Fed. Rep. 984; 46 appellant's negligence and for these.
r. S. App. 52; 20 C. C. A, 233; it is responsible." Alexandria Min-
United Oil Co. v. Roseberry (Colo.), ing, etc.. Co. v. Irish, 16 Ind. App.
69 Pac. Rep. 588. 534; 44 N. E. Rep. 680.
714 OIL AND GAS.
sations between the engineer of the constrnction company and
the engineer of the gas company in which the latter was recom-
mended to have an inspector on the line of work, were held ad-
missible on the ground that it tended to show to the gas com-
pany the peculiar dangers to which the pipes were exposed and
the opportunity afforded it to guard against them." Where a
gas company had repeatedly repaired a cracked elbow it had
put in, that was held to be sufficient evidence of notice of the
defect and to hold it liable for a failure to remove it or to close
the crack.'^^ So it may be showm that the company was directly
notified of the escaping gas — such as a notice to its pipe line
walker '^'^ — that workmen were seen digging at the place for
breaks in the gas pipes with tools branded with the initials of
the company — the same brands as were on the tools of the
men who fixed the break after the explosion — in order to show
knowledge on the company's part that the pipe in that locality
frequently leaked.*** Testimony by a former occupant of a
building that gas was smelled in the cellar a year previous to
the time of the explosion was held admissible, where there was
other evidence of such a smell after such occupant left the build-
ing, and extending up to about the time of the explosion.^^
§621. Evidence of other leaks.
Evidence of a leak from which gas escaping did not cause the
injury is not admissible, although gas escaping from a
leak did cause the injury; but if gas from both of them com-
■ "7 Koplan V. Boston Gaslight Co., was on the right side of the street
177 Mass. 15; 58 N. E. Rep. 183. is not such a fatal variance as will
78 Richmond Gas Co. v. Baker, defeat a plaintiff who alleges that
146 Ind. 600; 45 N. E. Rep. 1049; the horse was on the left side; nor
36 L. R. A. 683 ; Consumers' Gas is the verdict erroneous when such
Trust Co. V. Corbaley. 14 Ind. App. a variance is specifically shown by
549; 43 N. E. Rep. 237. the finding. Alexander Mining, etc.,
79 Consumers' Gas Trust Co. v. Co. v. Irish, 16 Ind. App. 534 ; 44
Perrego, 144 Ind. 350; 43 N. E. N. E. Rep. 680.
Rep. 306; 32 L. R. A. 146. *. si Werner v. Ashland Lighting
80 Lewis V. Boston Gaslight Co., Co., 84 Wis. 652; 54 N. W. Rep.
165 Mass. 411; 43 N. E. Rep. 178. 996.
Evidence that the horse injured
LEAKS AND EXPLOSIONS. 715
bined to any extent, then evidence of both leaks are admissible.
But if the charge is that the gas pipes were old and decayed, or
had been injured by the soil in which they were laid, or by
electrolysis, then evidence of other leaks near by or in the same
neighborhood, where the conditions are the same, is admissible
to show that the gas company had notice that the pipes had
become decayed by long use, or affected by the nature of the
soil, or by electrical action, at the place from which it is charged
the gas escaped, and consequently fix upon it the charge of
negligence in not finding and repairing the particular defect.^"
§622. Evidence of leaks.
In proving a leak in a street main, from which the escaping
gas caused an injury by explosion, the testimony of persons
residing in the neighborhood, to the effect that they had smelt
gas for some time and on the day of the explosion, is admissible,
on the theory that it tended to prove the leak.^^ Xor is the
evidence of witnesses, to the effect that they had perceived an
odor indicating the escape of gas from certain street mains, ren-
dered incompetent by subsequent evidence assigning another
cause for the odor.®* And a witness may testify that the odor
was similar to the odor of escaping gas elsewhere several months
before, the purpose being not to prove another leak, but merely
to identify the odor.^^ Evidence of the condition of the ground
through which the gas esca|Ded into the house injured by the ex-
plosion — such as it was blackened by the gas, and would bum
when a light was applied to it — as well as that gas flowed from
the defect in the pipe after the explosion, is admissible.^® Wliere
the charge was that the gas escaped into a sewer and thence into
82 Emerson v. Lowell, 3 Allen 410. Boston Gaslight Co., 129 Mass. 318;
This case is not exactly in point ; Siebrecht v. East River Gas Co,, 21
but it is believed that the proposi- N. Y. App. 110; 47 N. Y. Supp. 262.
tion laid down in the text is sup- «* Koplan v. Boston Gaslight Co.,
ported by it in principle. supra.
83 Koplan V. Boston Gaslight Co., ss Koplan v. Boston Gaslight Co.,
177 Mass. 15; 58 N. E. Rep. 183; supra.
Consumers' Gas Trust Co. v. Perre- s^ Consumers' Gas Trust Co. v,
go, 144 Ind. 350; 43 N. E. Rep. Perrego, 144 Ind. 350; 43 N. E. Rep.
306; 32 L. R. A. 146; Smith v. 306; 32 L, R. A. 146.
716 OIL AND GAS.
plaintiff's house, in order to show that the gas company did
not use due diligence in finding and stopping the leak after
notice, it was held proper to show by witnesses passing along the
street to what extent the gas escaped in the street and also that
it escaped from the same sewer through which it reached plain-
tiff's house into other houses at points beyond, if the company
had notice of that fact; but it was not admissible to show that
wherever the gas escaped into other houses sickness followed.^'^
It may be shown that the ground was frozen and the gas could
not escape into the air; but would naturally follow along any
opening under the frozen surface.^*
§623. Breaks occasioned by ordinary use of streets.
A gas company is bound to lay its pipes in such a manner
that the ordinary use of the streets for traffic will not break
them ; and to not do so is an act o:^negligence,^^ And the same
is true in regard to an instance of repair of a street. Thus
where, in repairing a street, a heavy steam roller passed over
its surface several times, breaking water pipes from which water
bubbled up to the surface, and shortly an explosion occurred,
the municipal corporation, which owmed the gas pipes, were held
liable, although the pipes were laid under thirteen inches of
granite and concrete, which was equivalent to thirty inches of
earth, a witness testified. It was shown that the roller had
broken pipes at other times ; and that pipes had been broken
through a subsidence of the ground, Avhich was loose and shift-
ing. It was also shown, however, that the roller sometimes had
gone over the ground without breaking pipes.^"
§624. Action of frost.
It is the duty of a gas company to lay its pipes sufficiently
deep, so that they will be beyond the action of frost. This is
87 Emerson v. Lowell, 3 Allen 410. Gaslight Co. v. Bishop, 81 111. App.
s8 Siebrecht v. East Eiver Gas 493 ; Hampton v. Cradley Heath
Co.. 21 N. Y. App. Div. 110; 47 ^. Gas Co., 14 Gas J. 606.
Y. Supp. 262. soPocoek v. Brighton, 31 Gas J.
89 Brown v. New York Gaslight 429.
Co., — Anthon N. P. 351; Aurora
LEAKS AND EXPLOSIOXS. 7l7
true with respect to its power to supply its cousumcrs ; for if it
were to lay its pipes so near the surface that frost would pre-
vent the flow of gas in extreme weather, it would not be perform-
ing its duty towards its consumers. So if pipes were thus laid
and the pipes should be broken by reason of the frost, permitting
gas to escape to the injury of a person, the company would be
liable ; although it should immediately stop the leak, enough gas
having escaped to cause the damage.'*^
§625. Pipes breaking from lack of support. — Excavations near
pipe line.
If the gas company has laid its pipes or mains in improper
soil — in other words, if they are not properly supported — it
is chargeable with notice of the tendency of such soil to sink or
subside, leaving the pipes or mains without proper support,
whereby they are broken. The improper laying of a gas pipe
is an act of negligence ; and if for that reason it break, gas escape,
and an explosion inflict an injury, it will be liable, the plaintiff
not contributing thereto.''" Evidence of the existence in the
street of holes and depressions is admissible to show that the
gas company knew, or should have known, that the street was
likely to settle and cause its pipes therein to break. ^^ If ex-
cavations are made in the street near the company's mains, it
must examine such excavations, in order to see how they may
affect its mains, take all necessary steps to prevent the earth so
oiKockford Gaslight and Coke 262; Metzger v. Schultz. 16 Ind.
Co. V. Ernst, 68 111. App. 300; App. 454; 43 N. E. Rep. 886; 45
Sehermerhorn v. Metropolitan Gas- X. E. Rep. 619; Heh v. Consolidated
light Co., 5 Daly 144. In Hampton Gas Co., 201 Pa. St. 443; 50 Atl.
V. Cradley Heath Gas Co., 14 Gas J. Rep. 9i)4 ; 88 Am. St. Rep. 819.
606, it is said that a gas company "3 I^wis v. Boston Gaslight Co..
is not liable if a pipe is broken by 165 Mass. 411; 43 X. E. Rep. 178;
a change in the weather. Koelsch v. Philadelphia, 152 Pa. St.
92 Aurora Gaslight Co. v. Bishop. 355; 25 Atl. Rep. 522; 18 L. R. A.
81 111. App. 493; Crane Co. v. Co- 7.59; ,34 Am. St. Rep. 6.53; Heh v.
lumbus, etc., Co., 73 Fed. Rep. 984; Consolidated Gas Co., 201 Pa. St.
46 U. S. App. 52; 20 C. C. A. 233; 443; 50 Atl. Rep. 994; 88 Am. St.
Siebrecht v. East River Gas Co., 21 Rep. 819.
X. Y. App. Div. 110; 47 X. Y. Supp.
718 OIL AND GAS.
settling as to not break them. Thus, where it appeared that
the leak was caused bv a failure of the city in constructing a
sewer to properly pack the earth, whereby the gas main that
broke was allowed to settle ; it was held that the question whether
or not the gas company had used due diligence to see that the
earth was properly put back so as to support its pipes was prop-
erly left to the jury."* In a like case where the gas had been
leaking for a day before the injury, it was held proper to give
the jury an instruction that the plaintiff could not recover if
the city did not properly tamp the earth when replacing it, if
the defendant was ignorant of that fact, and the surface of the
earth did not show the defective tamping, there being evidence
that tests could easily have been applied to determine whether
or not the dirt was properly tamped."^ Where a gas company
had no notice of the excavation, nor of gas escaping, nor that its
pipe had been deprived of its support; and the traffic on the
street caused it to break, letting the gas escape for two or three
days before the explosion, it was held that the character of the
break, the length of time the gas was escaping, and the absence
of any one on behalf of the company at the time and the place
of the excavation, constituted evidence of negligence on its
part; and the appeal was dismissed.'**^ The fact that the ex-
cavation is made by the city, or by a city contractor, in building
a sewer or making other public improvements, does not relieve
the gas company, where the failure to repair is the proximate
and not the remote cause of the accident."^ ^^^lere the charge
was negligence in not stopping a leak in the main, a notice is-
sued by the company to its consumers, calling attention to the
liability of leaks occurring from the digging up of streets by
various corporations, copies of which had been distributed by
94 Butcher v. Providence Gas Co., 96 Price v. South, etc.. Co., 65 L.
12 R. I. 149; 34 Am. Rep. 626; J. Q. B. 126; 12 T. L. R. 31.
Price V. South, etc., Gas Co., 65 L. 07 Oil City Gas Co. v. Robinson,
J. Q. B. 126; 12 T. L. R. 31. See 99 Pa. St. 1. In this case the gas
Vickerman v. Leeds, etc., Co., 15 company had notice of the leak suf-
Gas J. 654; Chadwick v. Corpora<^ ficiently long before the explosion
tion of Wigan, 28 Gas J. 562. to have repaired it.
95 Greaney v. Holyoke, 174 Mass.
437; 54 N. E. Rep. 880.
LEAKS AND EXPLOSIONS. 719
its agents within a year prior to the accident, was held ad-
missible in evidence on the question of due care on the part of
the company."^
§626. Property owner's duty to notify gas company of leaks.
The duty of notifying a gas company of a leak on his premises
is imposed upon its owner, and he must give the company notice
of it as soon as, or at least within a reasonable time after, he
discovers it. The time within which he must give the notice
depends upon the amount of gas escaping and the danger that
will probably be incurred by delay. If the leak should be insig-
nificant in amount, there is not that urgency required as if it
was in a large amount. The leak may be apparently insignifi-
cant in amount, and yet still be very considerable. In
such an instance the property owner is justified in measuring
his conduct by the appearance of things ; yet even here, as escap-
ing gas is a very dangerous thing, he is required to act with
that promptitude commensurate with the probable danger. In
one case, to recover damages occasioned to his health by escaping
gas, the court ruled that if the plaintiff discovered the leak
early enough in the day to have had it repaired by night, if he
had at once notified the company, and if, in consequence of
such neglect to notify it, the leak was not repaired that night,
and the plaintiff was injured by the escaping gas, such delay
in giving notice would be evidence to be considered by the jury
98 Powers V. Boston Gaslight Co.. Upon the question whether the
158 Mass. 257; 33 N. E. Rep. 523. pipe was liandled carefully and laid
The fact that no nails^ wire or properly, a witness may not give
chain was found after an explosion his opinion as to whether the line
of a gas pipe, is not sufficient to was laid with proper skill or care.
show that the pipe was not sup- but he may give an opinion to show
ported at the time the premises that men of experience and skill
were leased, where the undisputed were employed, accompanied by a
evidence shows that the pipe was statement as to what carelessness
supported by a chain or wire sus- or lack of skill there was in the
pended from a joist when first put execution of the work. Crane Co.
in. Metzger v. Shultz. 16 Ind. App. v. Columbus, etc., Co., 73 Fed. Rep.
4.54; 43 X. E. Rep. 886; rehearing 084; 46 U. S. App. 52; 20 C. C. A.
denied, 45 N. E. Rep. 619. 233.
720 OIL AND GAS.
of want of such ordinary care as would defeat the action, al-
though the defendant may have been negligent.^'* In the case
of escaping gas it is undoubtedly the duty of the owner of the
premises to turn off the gas, if he can reasonably do so, until
the servants of the company arrive and take charge of the gas
apparatus. ^'^*' Where foul ammoniacal water and odors had
leaked into the plaintiff's cellar from a leak in a pipe, for nine
months, to his damage ; and he then gave notice to the gas com-
pany of the leak, and they repaired the leak within five days,
it was held that he was entitled to recover the damages he had
suffered within such five days, because of his failure to give
notice when the leak began and during the period of nine
months."^ So where the leak was discovered at night ; and
plaintiff did nothing until the next morning, although all con-
sumers were requested on the back of their bills to notify the
gas manager at once in case a leak was discovered ; and in the
morning the plaintiff employed a plumber to search for the leak,
who did so with a lighted candle, when an explosion followed, it
was held that there was such contributory negligence as to pre-
vent a recovery.^"" Plaintiff's house was ninety feet from the
leak in the main of the defendant company. The gas passed
under the frozen surface of the earth to her cellar. She was
not a customer for the gas of the defendant, but was of another
company. Owing to a disease, she was not able to detect the
escaping gas by the odor. She opened the cellar door, and after
a few minutes the gas flowed into a room where she had a
lighted lamp, and an explosion was occasioned by the gas coming
in contact with the flame of the lamp. It was held that her
failure to notify the defendant of the leak, even though she
knew of its existence, did not constitute contributory negli-
gence. In such an instance it was only reasonable in her to
99 Holly V. Boston Gaslight Co., 3 C. B. 1 ; 15 L. J. C. P. 301 ; 10
8 Gray 123 ; 69 Am. Dec. 233 ; Hunt Jur. 883.
V. Lowell Gaslight Co.. 1 Allen 343; loi Hills v. Gaslight Co., 13 Gas
Hills V. Gaslight Co.. 13 Gas J.^ J. 877.
877. See Parkin v. Wirksworth Gas 102 Parkin v. Wirksworth Gas Co.,
Co., 26 Gas J. 946. 26 Gas J. 946. See Bartlett v. Bos-
looHolden v. Liverpool, etc.. Co., ton Gaslight Co., 122 Mass. 209.
LEAKS AND EXPLOSIONS. 721
suppose that the gas escaped from the pipes of the company
supplying her with gas/""*
§627. Company misleading plaintiff as to extent of danger.
If the gas company mislead the plaintiff concerning the ex-
tent of the danger he is incurring, or lulls his suspicions,
whereby he is misled to his injury, it will be liable. In cases
of doubt as to the danger, a person has a right to rely upon the
representations of the servants or agents of the company; and
even in cases where the danger appears to be a probable one,
under the assurance of the servant or agent of the company, who
the plaintiff knows ought to know whether or not there is danger,
that there is none, the plaintiff may rely thereon, and recover
if he is injured ; unless he be as experienced in such matters as
such servant or agent. And if the plaintiff is as experienced
as the servant or agent of the company, yet if his knowledge is
not such as to certainly show there is a danger ; and such servant
or agent, who the plaintiff believes, or has a right to believe,
has a more accurate knowledge of the situation than he, by
words or actions lulls his suspicions, and for that reason he does
not take the precautions he otherwise would, and is injured, he
can recover. Thus Avhere a consumer smelt escaping gas, but
was assured by the company's employee there was no leak, it
was held that he was not guilty of such contributory negligence
as would prevent a recovery for a loss occasioned by the leaking
gas exploding.^"*
§628. Municipality operating plant.
If a municipality supplies gas to private consumers, it will
be liable for the negligence of its servants, or for its negligent
103 Consumers' Gas Trust Co. v. etc. Co., 98 N. Y. 115; Pullman Pal-
Perrego, 144 Ind. 350; 4.3 N. E. Rep. ace Car Co. v. Laack, 143 111. 242;
306; 32 L. R. A. 140. 32 N. E. Rep. 285; 18L. R. A. 215:
104 Anderson v. Standard Gaslight affirming 41 111. App. 34; Washing-
Co., 17 N. Y. Misc. 625; 40 N. Y. ton Gaslight Co. v. Eckloff. 7 App.
Supp. 071; Richmond Gas Co. v. D. C. 372; Wagner v. H. W. Jayne
Baker, 146 Ind. 600; 45 N. E. Rep. Chemical Co.. 147 Pa. St. 475; 29
1049; 36 L. R. A. 683; Lee v. Troy, W. N. C. 490; 23 Atl. Rep. 772,
722 OIL AND GAS.
acts, the same as an individual or private or semi-private cor-
porations engaging in the same business and being guiltj of the
same negligence are liable/"^ It is held to the same degree of
diligence and care/*'® The operation and maintenance of a
gas or lighting plant by a city is a private corporate function
as distinguished from purely governmental function, rendering
the city liable the same as an individual. ^°^
§629. Gas following supply pipe from main. — Percolating
through soil. — Sewer.
Gas companies are chargeable with notice of the fact that the
tendency of gas escaping from their mains in the street is to
follow the supply pipe into the house supplied, especially where
the soil is not packed closely around such supply pipe ; that it
has the same tendency to follow their mains ; that when it enters
a sewer it will follow that into the 'fiouses and that it will even
j>ercolate the soil, thereby reaching cellars and rising to other
parts of the building. Gas may follow pipes for long distances,
and through these avenues find its way into buildings, there ex-
ploding without any seeming connection between the place of
its escape and the place of explosion. In all such instances the
original negligence is either failure to detect the leak or else
the use of such pipes as in which in all reasonable likelihood
leaks will occur. The apparent nature of the soil may l>e such,
or the distance between the place of the leak and that of the ex-
plosion so great that no reasonable apprehension exists of gas
ifjs Strawbridcje v. Philadelphia, Brighton, 31 Gas J. 429; Scott v.
13 Phila. 173; 36 Leg. Int. 27G; 13 Mayor, etc., of Manchester, 37 Eng.
Rep. 216; Strawbridge v. Philadel- L. (tEq. 495; 2 H. and N. 204; 26
phia, 2 Penny 419; Littman v. New L. J. Exch. 132, 406; 3 Jur. (N. S.)
YorK City, 36 N. Y. App. Div. 189; 590; 5 W. R. 598; Chadwick v.
55 N. Y. Supp. 383; affirmed 159 Corporation of Wigan, 28 Gas J.
N. Y. 559; 54 N. E. Rep. 1093; 562; Boothman v. Mayor, etc., of
Shuter v. Philadelphia, 3 Phila. Burnley, 20 Gas J. 585.
228; 15 Leg. Int. 333; Esberg- Trust loc Hoin v. Lancaster, 13 Lane.
Cigar Co. v. Portland, 34 Ore. 282^* L. Rev. 131.
55 Pac. Rep. 961 (water); Otters- io7 Bullniaster v. St. Joseph, 70
bach V. Philadelphia, 161 Pa. St. Mo. App. 60.
Ill; 28 Atl. Rep. 991; Pocock v.
LEAKS AND EXPLOSIOIS^S. 723
traveling through such a soil or for such a distance ; yet, never-
theless, either one of these facts will not defeat the action, the
fact remaining that the gas was negligently permitted to escape,
and that it actually did travel through the soil or the distance
intervening between the place of the leak and the place of the
explosion, tlie character of the soil and the length of the distance
only adding to the improbability of the gas passing through it
or traveling so fai'/"* If it be alleged in the complaint that
the gas in sufticieut quantities passed from the mains through
the soil to the house to cause an explosion, the court cannot
take notice that the complaint charges an impossibility; but
the mere allegation of that fact in the manner indicated is not
sufficient to withstand a motion to make the complaint suffi-
ciently definite as to show how the gas was conducted from the
leak in the main to the house.^*"*
§630. Withdrawing gas from mains without notice.
A gas company may be liable for negligence in withdrawing
its gas without notice and for failure to give notice of its re-
turn. In this instance both acts must have been negligent.
Thus where a consumer lighted the gas in a grate, lay down and
went to sleep ; after which the gas company withdrew the supply
108 Fare v. Bath Gaslight Co.. 25 rego, 144 Ind. 350 ; 43 N. E. Rep.
Gas J. 566; Vickerman v. Leeds 306; 32 L. R. A. 146 (ground frozen
New Gas Co., 15 Gas J. 654; Brown on surface) ; Consolidated Gas Co.
V. Illius, 27 Conn. 84; Hunt v. Lo- v. Crocker. 82 Md. 113; 33 Atl.
well Gaslight Co., 1 Allen 343 ; Hoi- Rep. 423 ; 31 L. R. A. 785 ; Alexan-
ley V. Boston Gaslight Co.. 8 Gray dria Mining, etc.. Co. v. Irish; 16
123; 69 Am. Dec. 233; Smith v. Ind. App. 534; 44 N. E. Rep. 680;
Boston Gaslight Co.. 129 Mass. 318; Consumers' Trust Co. v. Corbaley,
Medex v. Gaslight and Coke Co.. 15 14 Ind. App. 549; 43 N. E. Rep.
Gas J. 75; Littman v. New York, 237; Siebrecht v. East River Gas
159 N. Y. 559; 54 N. E. Rep. 1093; Co., 21 N. Y. App. Div. 110; 47
affirming 36 N. Y. App. Div. 189; N. Y. Supp. 262 (a frozen surface) ;
55 N. Y. Supp. 383. Heh v. Consolidated Gas Co., 201
109 Mississinewa Mining Co. v. Pa. St. 443; 50 Atl. Rep. 994; 88
Patton, 129 Ind. 472; 28 N. E. Rep. Am. St. Rep. 819; People's Gaslight
1113; 28 Am. St. Rep. 203. See Co. v. Amphlett, 93 111 App. 194;
cases of percolating through soil. Henderson v. Heating Co., 179 Pa.
Consumers' Gas Trust Co. v. Per- St. 513; 36 Atl. Rep. 312.
724 OIL AND GAS.
without notice and then turned it on without giving notice it
had done so, and the gas escaped into the room and injured the
person so asleep, he having remained continuously asleep from
the time he lay down until awakened by the escaping gas, it was
held that the company was liable."" To withdraw gas from
the pipes of a house, without notice to the tenant or persons
therein, when it is lighted ; and to return it without notice, is a
gross act of negligence on the part of the gas company, and a
very dangerous thing to do.^^^
§631. Undue pressure in mains.
In some States the pressure in natural gas mains is regulated
by statutes ; but we are not aware that such a statute has been
made applicable to artificial gas maina^ Thus where a statute
required a company to use sound wrought or cast iron pipes, to
test them to a pressure of four hundred pounds to the square
inch, and to not exceed a pressure of three hundred pounds in
their use, it was held to be an act of negligence to not test the
110 Beyer v. Consolidated Gas Co., acting under this impression, no
44 JSi. Y. App. Div. 158; 60 N. Y. odor of gas being perceptible to her,
Supp. 628 ; Skogland v. St. Paul and not examining the keys to see if
Gaslight Co. (Minn.) ; 93 N. W. it had been turned off, she threw a
Rep. 668. lighted match into the furnace pre-
111 See McKenna v. Bridge Water paratory to turning on the gas. but
Gas Co., 193 Pa. St. 633; 45 Atl. tne furnace being full of gas from
Rep. 52; 47 L. R. A. 790. the fact that it had again been
Increasing pressure without no- turned on (without notice), an ex-
tice. Indiana, etc., Co. v. Long, 27 • plosion immediately followed, to her
Ind. App. 219; 59 N. Jii. Rep. 410. injury, it was considered by emi-
Where natural gas was with- nent counsel to whom the question
drawn from the pipes without no- of the company's liability was sub-
tico. until the fires went out; and, mitted, that she could not recover,
t'lc house having become cold, the because of her negligence in not as-
/■"'i-trosR went into tne cellar to turn certaining before throwing the light-
up the gas in the furnace, or to see ed match into the furnace whether
what was the matter, and finding the gas had been returned into the
no fire in the furnace, and supposing pipes, or whether or not the keys
that the servant or some of her were turned so as to shut it off.
children had turned off the gas, and
LEAKS AND EXPLOSIONS. Y25
pipes or to use a forbidden pressure."" So it is an act. of negli-
gence to unduly increase the pressure of natural gas whereby the
stoves and furnaces in which it is used become overheated and
set fire to the buildings in which they are situated ; and this is
especially true if the pressure increases late at night when no
one is around to watch the fires. And it makes no difPerenco
that such increased pressure arises from the fact that many
consumers have turned off the gas, thereby increasing the sup-
ply for fires kept burning, or that the pressure at the gas wells
increased ; for the company is bound to anticipate such increase
of pressure and turn its valves so as to prevent it.^^^
§632. Evidence of undue pressure at other places.
The general rule is where it is charged that the company neg-
ligently so increased or permitted such an increase of the flow
of gas as to overheat plaintiff's stoves or furnaces Avhereby his
house was set on fire, that evidence cannot be given of the effect
of such increase at other points where the company is furnishing
gas ; and in one case it was admitted by counsel that it must
further be " shown that such overheated stoves were on the same
low pressure pipe lines, received their fuel from the same supply
under similar conditions, and through similar service pipes ; that
the mixers and burners were substantially the same ; that the
keys regulating the fires were turned down as in the stove
112 Alexandria, etc., Co. v. Irish, Huntington, etc.. Co., 23 Ind. App.
16 Ind. App. 534; 44 N. E. Rep. 281; 55 N. E. Rep. 249; Barrick-
680; Barrickman v. Marion Oil man v. Marion Oil Co., 45 W. Va.
Co., 45 W. Va. 634 ; 32 S. E. Rep. 634 ; 32 S. E. Rep. 327 ; 44 L. R. A.
327; 44 L. R. A. 92; Consumers' 92; Berns v. Gaston Coal Co., 27
Gas Trust Co. v. Perrego, 144 Ind. Vv . Va. 285.
350; 43 N. E. Rep. 306; 32 L. R. A. It is negligence for a natural gas
146; Indiana, etc., Co. v. Long, 27 company to permit its regulators or
Ind: App. 219; 59 N. E. Rep. 410. other appliances to remain for an
113 Alexandria, etc., Co. v. Pain- unreasonable time in a condition
ter, 1 Ind. App. 587; 28 N. E. Rep. that they will not control the
113; Alexandria, etc., Co. v. Irish, amount and pressure of gas fur-
supra.- Indiana, etc., Co. v. New nished. Barrickman v. Marion Oil
Hampshire, etc., Co., 23 Ind. App. Co., supra.
298; 53 N. E. Rep. 485; Ibach v.
726 OIL AND GAS.
wliicli burned appellee's house, and that there was no interven-
ing regulator or hindrance to obstruct the free and uniform flow
of gas in such lines." In this case the court added : " In
other words, to make such evidence competent, it was first neces-
sary to show that the general condition of the other stoves Avas
in all essential respects similar to the one that caused the injury.
Such evidence, when the conditions are thus shown, is ad-
missible " ; ^^* and the court proceeded to make a quotation from
a West Virginia case,^^^ in which it was said : " The condition
and pressure of gas in the neighboring houses at the time of the
fire, there being no intervening regulator or hindrance to the
force of the gas between the burned house and the other houses
mentioned, would clearly indicate what it was at the house of
the plaintiff, and I see no valid objection to the answering of
the questions." In the Indiana case in which the admission
was made, as above stated, the court, ^fter giving a summary
of the evidence, said : " We think that all the witnesses who
testified as to the condition of other stoves, etc., on that night,
brought themselves within the rule laid down in the cases cited.
That is, we do not think that before it can be shown that other
stoves were overheated than the one causing the injury, where
the supply of gas is received from the same general source,
that such other stoves were supplied by the same sized service
pipes, the same kind of valves, and the same kind of mixers ;
that they were the same general distance from the mains, and
that the keys were turned down in just the same way. Such
a rule would be unreasonable, and the law does not require
unreasonable things to be done. The rule only goes to the ex-
tent as to require similar conditions to be shown."® It would
11* Indiana, etc., Co. v. Long, 27 etc., Co., 23 Ind. App. 298; 53 N.
Tnd. App. 219; 59 N. E. Rep. 410. E. Rep. 485.
115 Barric-kman v. Marion Oil Co., ne The court then cites Washing-
45 W. Va. 634; 32 S. E. Rep. 327; ton Tp., etc., Co. v. McCormick. 19
44 L. R. A. 92. Ind. App. G63; 49 N. E. Rep. 1085;
In making this admission the * and Indiana, etc.. Gas Co. v. New
counsel admitting it evidently Hampshire, etc., Co., supra, and
had in mind the ease of Indiana, says that they "should be so con-
etc, Gas Co. v. New Hampshire, strued."
LEAKS AIS^D EXPLOSIONS. 727
be folly to say that two persons living in different houses could
testify or show to any degree of exactness, that they turned
their keys just alike. But here it is shown that the service
pijjes were of different sizes, leading to different stoves, and
yet the gas was forced through these different sized pipes where
the keys were turned low to such a degree of pressure as to
overheat the different stoves. The witnesses all received their
gas from low pressure mains. It is not shown that the mixers
were all alike, but it is shown that appellant furnished them,
and we think all these facts make the evidence competent. Two
witnesses were permitted to testify as to the high pressure of
the gas used by them for illuminating pur|X)ses on the night
appellee's property was destroyed. The gas so used by them
was supplied from low pressure mains of appellant. It is shown
that the gas used for illuminating purposes is supplied through
different burners than those used for heating purposes ; that the
pipes are smaller as a rule and that where used for illuminating
no mixers are used. It thus appears that in such case condi-
tions are dissimilar from those where gas is used for heating,
although the supply is from the same general source. Under
these circumstances we are inclined to the opinion that the evi-
dence was not admissible under the sale herein declared." ^^^
§633. Explosion caused by act of servant of gas company.
If the explosion is brought about by the act of a servant of
the gas company, the question of negligence is still one for in-
117 Indiana, etc., Gas Co. v. Long, admit in evidence the testimony of
27 Ind. App. 219; 59 N. E. Rep. witnesses who received gas from the
410. The court, however, consid- same main as defendant, to the ef-
ered that the testimony of these feet that they had an insufficient
two witnesses was harmless in view supply of gas during the time in
of the overwhelming evidence of the question, without showing that these
negligence of the defendant. connections were of the same or a
\Yhere the suit was to recover the similar character as that of the
amount of a promissory note given defendant, where it was the defend-
in payment for gas to be supplied ant's duty under the contract to con-
the maker, and in a coimter claim duct the gas from the main to his
the defendant asked damages for residence. Washington Tp.. etc.,
failure to comply with the contract Co. v. McCormick. 19 Ind. App.
to furnish gas, it was held error to 663; 49 N. E. Rep. 1085.
728 OIL AND GAS.
vestigation ; for the explosion may have been occasioned with-
out any negligence on the part of the servant, in which event the
company would not be liable. Whether or not the servant neg-
ligently occasioned the explosion is a question for the jury."**
§634. Company undertaking to repair consumer's pipes or
fixtures.
It has already been stated that if a gas company imdertake to
inspect a consumer's pipes in his house it is chargeable with the
same degree of care as it is in the inspection of its own pipes.
And this is true where it undertakes to repair such pipes or the
consumer's fixtures. Thus, where a notice to consumers was
printed on the back of its bills that as soon as a leak in the house
was discovered the company should be notified ; and a consumer
notified the company of such a leak, whereupon a messenger sent
to the house, who said he had come to Repair the leak, which
he said was in a chandelier in the front room ; and after ex-
amining it, stayed about twenty minutes, and left, saying it
was all right; and that night the plaintiff was injured by the
escaping gas, the leak being in the pipe inside the casing of
the chandelier — it was held that the company was liable.
" Entering upon the work," said the court, " the defendant
was bound to do it with reasonable care." ^^^ The same rule of
reasonable care was applied where the gas company insisted
upon making all gas connections between the house mains and
its pipes.^"''
lis Hann v. Weymouth, etc., Co., us Ferguson v. Boston Gaslight
18 Gas J. 186; Lannen v. Albany Co., 170 Mass. 182; 49 N. E. Rep.
Gaslight Co., 46 Barb. 264; 44 N. 115; Anderson v. Standard Gaslight
Y. 459; Ward v. Gaslight and Coke Co., 40 N. Y. Supp. 671; 17 N. Y.
Co.. 14 Gas J. 915; 15 Gas J. 45, Misc. Rep. 625; United Oil Co. v.
75; 16 Gas J. 10, 38, 74, 108; Ger- Roseberry (Colo.), 69 Pac. Rep.
man Ins. Co. v. Standard Gaslight 588.
Co., 70 N. Y. Supp. .384; 34 N. Y. 120 Bastian v. Keystone Gas Co.,
Misc. Rep. 594; Ferguson v. Boston 27. N. Y. App. Div. 584; 50 N. Y.
Gaslight Co., 170 Mass. 182; 49 f^ipp. 537. See also United Oil Co.
N. E. Rep. 115; United Oil Co. v. v. Roseberry (Colo.). 69 Pac. Rep.
Roseberry (Colo.), 69 Pac. Rep. 588: and Smith v. Pawtucket Gas
588. Co. (R. I.), 52 Atl. Rep. 1078.
LEAKS AND EXPLOSIONS. 729
§635. Injury to shade trees. — Shrubbery.
If a gas company permit gas to escape from its pipes or mains
whereby shade trees or foliage in the street or upon adjoining
grounds are injured or killed by such escaping gas it will be
liable for the damages occasioned. The owner of property may
recover for trees, destroyed by the negligent escape of gas,
planted by him in the street immediately in front of his prem-
ises. ^'^ An instruction that the gas company is not liable,
unless it could reasonably have apprehended that escaping gas
would cause the death of vegetation is erroneous ; for the com-
pany is bound to know the effect of gas upon trees and vegeta-
tion.^" Where evidence showed that the death of the trees
■was coincident with the leakage from the mains nearby of a
large amount of gas ; and that after the mains were recalked
there was a renewed grow^th of vegetation, the verdict of the
jury was not disturbed on appeal, although there was other evi-
dence to show that the injury to the trees was not caused in
the manner alleged. ^"^ It may be shown that other trees in
the same vicinity were killed by gas le king from the same
place, where the charge is that the gas permeating the soil
poisoned and killed the roots of the trees. ^"'^ So where the
charge is that the gas escaped into a sewer and thence into
plaintiff's greenhouse, whereby his plants were killed, evidence
is admissible to show the presence of gas in other greenhouses
situated on the same sewer. ^'^
i2iRockford Gaslight Co. v. Ernst, IGO. See Rauck v. Cedar Rapids Gas
68 111. App. 300; Armbruster v. Au- Co., 116 Iowa — ; 89 N. W. Rep.
burn Gaslight Co., 18 N. Y. App. 88.
447; 46 I\. Y. Supp. 158; Rauck v. 124 Rockford Gaslight and Coke
Cedar Rapids Gas Co., 116 Iowa — ; Co. x. Ernst. 68 111. App. ,300.
89 N. W. Rep. 88. 125 Butcher v. Providence Gas Co.,
122 Wichita Gas, etc., Co. v. 12 R. I. 149; .34 Am. Rep. 626;
Wright, 9 Kan. App. 730; 59 Pac. Armbruster v. Auburn Gaslight Co.,
Rep. 1085. 18 N. Y. App. Div. 447; 46 N. Y.
123 Evans v. Keystone Gas Co., Supp. 158 ; Sierbrecht v. East River
148 N. Y. 112; 42 N. E. Rep. 513; Gas Co.. 21 N. Y. App. Div. 110;
30 L. R. A. 651; 51 Am. St. Rep. 47 N. Y. Supp. 262; Dow v. Winni-
681: affirming 72 Hun. 503; 25 pesaukee Gas Co.. 69 N. H. 312 ; 41
N. Y. Supp. 191; 28 Chic. L. News Atl. Rep. 288; 42 L. R. A. 569.
730 OIL AND GAS.
§636. Illuminating gas driving sewer gas into house.
If illuminating or natural gas is negligently permitted to
esca}>e into a sewer in such a quantity as to shove or drive
sewer gas in the sewer into a house, and such sewer gas in-
jure the inmates thereof, the gas company will be liable,
although no illuminating or natural gas has ever entered such
house ; and the same would be true, of course, if such illuminat-
ing or natural gas did enter the house, but carried with it other
gas that produced the damage.^"**
§637. Explosion caused by act of third person.
The circumstances may be such that the company will be
liable although the explosion is occasioned by the negligent act
of a third person.^'^ Thus where the savants of a city injured
oil pijDes and the leaking oil found its way to a sewer, and
thence to a canal which flowed under a mill and was there ex-
ploded, to plaintiff's injury, the oil company was held liable.^"^
So where gas escaped from a pipe which the company was bound
to keep in repair, and a servant of a third person negligently
set the gas, which had accumulated in his master's building, on
fire ; and the fire spread to the plaintiff's building, the company
was held liable.^"" So where the plaintiff employed a gasfitter
to place pipes in position in his house and connect them with
the meter, whose servant went in search of escaping gas with
a lighted candle, using the candle negligently, it was held that
he could recover ; and that it could not be said he had contrib-
See Denniston v. Philadelphia Co., i26 Hunt v. Lowell Gaslight Co.,
1 Super. (Pa.) Ct. 599; 38 W. N. 8 Allen 169; 85 Am. Dec. 697.
C. 332; 27 Pittsb. L. J. N. S. 14. isiAurora Gaslight Co. v. Bishop,
If other causes also operated to 81 111. App. 493.
injure or kill the trees, the damages i28 Lee v. Vacuum Oil Co., 54
must be restricted to the injury the ^Jlun 156; 7 N. Y. Supp. 426.
defendant did. Rauck v. Cedar Rap- :i2n pjne Bluff, etc., Co. v. McCain,
ids Gas Co., 116 Iowa — ; 89 N. W. 62 Ark. 118; 34 S. W. Rep. .549;
Rep- 88. Lebanon, etc., Co. v. Leap, 139 Ind.
443; 39 N. E. Rep. 57.
LEAKS AXD EXPLOSIONS. TSl
uted to tlie injury, for he had no control over the servant.^^"
And, as has been elsewhere discussed, the gas company is not
excused where its mains are injured by a third jDerson, so that
gas escape, if it had notice of the injury and failed to promptly
stop the flow of gas.^'^^ In a case where a city engineer was
superintending the construction of a sewer, and a gas main was
so injured that gas escaped, entered a sewer, and the engineer,
knowing the presence of gas in the sewer, entered it with a light
which ignited the gas; it w\as held that the failure of the gas
company to repair the pipe was the proximate and not the re-
mote cause of the injury, and that the gas company was liable.
" The calamity," said the court, " resulted from the defendant's
negligence, and but for the defective pipe there Avould have
been no escajDe of gas ; and if this was not the proximate cause,
where, we ask, was the intervening one by which the conse-
quences of the accident are to be shifted from the defendant to
some other person or thing ? " ^^" In another instance the owner
of a house notified a gas company to shut off his supply of gas,
as he desired to discontinue its use. The company sent its
servant to cut off the gas at the property line and take out the
meter. The servant cut off the supply by means of a key nearly
four feet in length, which he inserted in the gas box at the
property line, and then went into the house and removed the
meter, leaving the end of the supply pip€ open. When he
turned off the gas the servant left the key in the gas box, and
did not remove it until after he had removed the meter and
returned to the street. After leaving the house and before
he reached the key again, some one, without his knowledge,
turned on the gas by use of the key. Xot more than ten min-
utes had intervened. The wife of the owner of the house,
perceiving there was gas in the basement, went and opened
130 Burrows v. March Gas and i3i Smith v. Boston Gaslight Co.,
Coke Co., L. R. 7 Exeh. 96; 41 L. 129 Mass. 318; Koelsch v. Philadel-
J. Exch. 46; 26 L. T. 318; 20 W. phia Co.. 152 Pa. St. 355; 25 Atl.
R. 493. Rep. .522; 18 L. R. A. 759; 34 Am.
See where a thief with a candle St. Rep. 653.
caused an explosion, and the com- i32 Oil City Gas Co. v. Robinson,
pany was held liable. Griffiths v. 99 Pa. St. 1; 13 Repr. 253.
City of London Gas Co., 16 Gas J.
139.
732 OIL AND GAS.
the cellar door to let in air; and as it was night, she took a
lamp to enter the cellar. As soon as she opened the door an
explosion followed, injuring her severely. At the time of the
explosion the gas was not turned off; and the gas company
claimed it was not liable, because it had done its work properly,
and the gas had been turned on by a stranger without its knowl-
edge. But the court held that the company was liable, on the
theory that it was an act of negligence in the servant to leave
the key in the gas box where any busy meddler could turn it
on. Having undertaken to turn off the gas, it should do so
thoroughly ; and it was immaterial that some third person turned
it on in the manner described. ^''^ So where it was charged that
the father, who was the owner of the house, injured the pipe,
causing the gas to escape ; and upon his request the gas com-
pany sent its servant to fix the pipe and prevent the escape of
the gas, and he carelessly carried a lignt into the cellar where
the gas was escaping, igniting the gas and injuring the father's
child, it was held that the child could recover, the father's
neglect being the *'emote cause.^^* And where a gas company
ought to have foreseen that the construction of underground
works in the street would probably injure its pipes, of which
work the company had knowledge, and it failed to furnish an
inspector ; it was hel ' liable where the explosion producing the
injury was occasioned by the act of a stranger to it, that it was
liable because of its neglect to inspect. ^■''^ But where
the owner of a private gas plant supplied a hotel with gas
and the pipe leading to the hotel became so stopped or clogged
that gas would not flow through it, and the person Avho had con-
structed the plant, but not then in the owner's service, advised
the superintendent of the hotel owner to take the weight out of
the gasometer, and the superintendent followed the suggestion,
and thereupon the gasometer turned over so as to permit gas to
escape, causing an explosion ; it was held that the owner of the
1-' Louisville Gas Co. v. Guten- *uit to recover for loss of services,
kiintz. 82 Ky. 432. another question would have been
134 Lannen v. Albany Gaslight presented.
Co.. 44 N. Y. 459. i"5 Koplan v. Boston Gaslis^ht Co.,
If the father had brought the 177 Mass. 15; 58 N. E. Rep. 183.
LEAKS AND EXPLOSIONS, 733
gas plant was not liable; for the proximate cause of the injury
was the exiDeriment made by the superintendent, there being no
evidence that the owner employed incompetent workmen to put
up the plant. It was considered that the clogging of the pipe
had no connection with the accident, except as it led to the ex-
periment. ^^'^ Where a gas company's pipes were not connected
with a building until the o^vner or lessee applied for gas, being
required to furnish a plan of the pijjes in the building, and as
soon as an application was made and plans furnished it would
deliver a meter, leaving the applicant to make the connection,
without itself making an examination ; and the lessee of a store-
room, on receiving a meter, employed a plumber to make a
connection with the company's supply pipe ; and from a pipe
running into an apartment above the store, occupied by other
tenants, gas escaped, killing the plaintiff's intestate ; it was held
that it was a question for the jury whether the gas company had
used reasonable precautions.^^" In a Massachusetts case it was
said : " If the ig-nition of the gas by a natural cause, or by
some other person, ought to have been foreseen as a probability,
the defendant is liable." "^
§638. Gasfitter igniting escaping gas.
A gas company may become liable to the owner of property
injured by the explosion of escaping gas, even though it was
ignited by the carelessness of a plumber or his servant em-
ployed to repair or change the plumbing in the house. Thus
where a gas compiany put in a defective supply pipe between
its mains and the meter on plaintiff's premises, whereby gas
escaped into the building; and a -workman in the employ of a
136 Taylor v. Baldwin, 78 Cal. i37 Scheemer v. Gaslight Co., 147
517; 21 Pac. Rep. 124. X. Y. 529; 42 N. E. Rep. 202; 30
By permitting a consumer to em- L. R. A. 653; reversing 26 X. Y.
ploy a plumber to put in a gas pipe Supp. 1128; 65 Hun 378. and 20 N.
and turn on the gas, a gas com- Y. Supp. 168.
pany does not make such plumber i38 Koplan v. Boston Gaslight Co.,
its agent, so as to render it liable supra ; Hampton v. Cradley Heath
for an explosion caused by the Gas Co., 14 Gas J. 606.
plumber's negligence. Flint v.
Glouster Gaslight Co., 3 Allen 343.
734 OIL AND GAS.
gasfitter, called by the plaintiff to put in pipes leading from
the meter to the burners, negligently took a lighted candle for
the purpose of finding out whence the ^-as proceeded; where-
upon an explosion followed by reason of the contact of the gas
with the candle flame, it was held that the plaintiff could re-
cover damages for the injury to his house occasioned by the
explosion, that the damages were not too remote, and that it
could not be considered that the plaintiff contributed to the in-
jury, for the workman was not under his control/^'' And in a
Xew York case, where the pipe Avas broken by frost in conse-
quence of its having been laid, by the defendant, too near the
surface of the gi'ound, from which gas escaped into the cellar^
it was held that the plaintiff could recover damages caused by
an explosion occasioned by a plumber, whom he had called to
ascertain where the leak was, opening the cellar door, holding in
his hand a lighted candle ; and it mikde no difference that the
plumber may have been guilty of negligence, for he was not the
agent of the plaintiff so as to make the latter answerable for
his negligence, for where a person sustains an injury from
the separate negligence of two persons employed to do two
separate things, he may maintain an action against both or
either/*" Where it was claimed by the defendant that the leak
occasioned by the city officers not properly packing the earth
under the pipe that broke in building a sewer, it was held that
" the defendants, in managing a dangerous element, were bound
not only to use due care on the part of themselves and their
servants, but also to use due care to prevent injury from the
careless or wrongful meddling with their works on the part of
others; that they could not interfere with or prevent the city
from building a sewer, but they had a right to and were bound
to see that, in restoring the earth to its place, their own pipes
A contractor paving a street who R. 7 Exch. 96; L. R. 5 Exch. 67;
negligently disturbs the gas mains, 41 L. J. Exch. 46; 26 L. T. 318;
whereby the gas escapes, an explo-^ 20 W. R. 493; Mersey Docks and
sion follows, and a passerby is in- Harbor Board v. Liverpool, etc., Co.,
jured, will be liable. Fellwood v. 26 Gas J. 327.
Pearson, 23 Gas. J. 248. 140 Schermerhorn v. Metropolitan
139 Burrows v. March Gas Co., L. Gaslight Co., 5 Daly 144.
LEAKS a:xd explosio^^s. 735
were properly supported, and, if injured, to see that the injury
was repaired as soon as it could reasonably be done " ; and that
whether the defendant had exercised due care in these particu-
lars was a question for the jury.'
141
§639. Negligence of fellow servant.
The rule in negligence cases with regard to fellow servants
applies to gas explosions or leaks. Thus if a servant of a gas
company, who was a fellow' servant with the plaintiff, cause
the explosion, there can be no recovery.^*" In the case just cited
there was really no negligence on the part of the company, for
it had used proper appliances ; but the explosion was occasioned
by the act of a fellow servant in carelessly lighting a match
near the escaping gas. The same rule was announced in a case
where a fellow servant caused an explosion in a mine.^*^ ^Miere
an employee of a gas company, under the direction of the com-
pany's superintendent, went into a trench to repair a leak in a
gas main ; and the superintendent approached with a lighted
lantern, and the escaping gas ignited, causing an explosion ; it
was held that the action of the superintendent in approaching
the trench with the lighted lantern was the proximate cause
of the injury, and that under a statute providing that where the
injury resulted from the negligence of any person in the service
of a corporation to whose order or direction the injured em-
ployee at the time of the injury was bound to conform and
did conform, the company was liable, the plaintiff could re-
cover,"* A similar result was reached where no statute seemed
1-11 Butcher v. Providence Gas Tipton Light, etc., Co. v. Xew-
Co., 12 R. I. 149; 34 Am. Rep. 626. comer (Ind. App.), 67 X. E. Rep.
A gas company is not liable when 548.
the injury is occasioned wholly by 142 Allegheny Heating Co. v.
the neglect of a gasfitter, called by Rohan. 118 Pa. St. 22.3; 11 Atl.
the property owner. German Amer- Rep. 780 ; \Yarren v. Wilder, 20
lean Ins. Co. v. Standard Gaslight Gas J. 892.
Co., 67 N. Y. App. Div. 539; 73 X. i« Lehigh Valley Coal Co. v.
Y. Supp. 973. Jones. 86 Pa. St. 432.
If the explosion is occasioned by i** Indianapolis Gas Co. v. Shu-
the superintendent of the company mack, 23 Ind. App. 87; 54 N. E.
in searching for a leak with a Rep. 414.
light, the company will be liable.
736 OIL AND GAS.
to control it."^ And in a case, not strictly in line with the
subject matter of this section, where the action was against a
chemical company for injuries sustained in inhaling fumes of
nitric acid, the fact that the complaining person left his work,
saying he could not endure it, and thereupon the superintend-
ent assured him they would not hurt him, it was held that it
was not shown that the employee so. injured knew or had reason
to know the fumes would do him a permanent injury, and that
it was not negligence for him to return to work.^'*"
§640. Person on premises by license.
A gas company not only owes a duty to the owner of the prem-
ises and the inmates thereof, hut also to all who are rightfully
upon or rightfully come upon the premises, or who come there
with the express or implied permi^ion of the owner. This
Avill include not only the servants of the owner, but all
the servants of a contractor repairing or working upon the prem-
ises, all persons employed, whether by the day or by the piece,
to work thereon or sent there by another to do work.^*^ The
rule is broad enough to include a guest of the owner of the
premises.^*^ The negligence of the owner in causing the ex-
plosion, where the gas company has also been negligent, will not
defeat such person's right to recover, even though their com-
bined negligence was required to cause an explosion.^*''
145 Citizens' Gaslight and Heating company did not raise the relation
Co. V. O'Brien, 15 111. App. 400; of fellow servant, see Hatfield v. St.
affirmed 118 111. 174; Citizens' Gas- John Gaslight Co., 32 N. B. 100.
light and Heating Co. v. O'Brien, i47 Washington Gaslight Co. v.
19 111. App. 231; affirmed in Citi- Eckhoflf, 22 Wash. L. Rep. 656; 4
zens' Gaslight and Heating Co. v. App. D. C. 174.
O'Brien, 118 111. 174; 8 N. E. Rep. i48 Defiance Water Co. v. dinger,
310. 54 Ohio St. 532; 35 Ohio L. J. 323,
146 Wagner v. Brew Chemical Co., 350; 44 N. E. Re'p. 238; 32 L. R. A.
147 Pa. St. 475; 29 W. N. C. 490; 736. See note 150 of this section.
?3 Atl. Rep. 722, distinguishing. i-to Pullman Palace Car Co. v.
Beittenmiller v. Bergner, etc., Co. Laack. 143 111. 242; 32 K E. Rep.
(Pa.), 12 Atl. Rep. 599. 385; 18 L. R. A. 215; affirming 41
For a case where a servant of Til. App. 34; Richmond Gas Co. v.
one company working for another Baker, 146 Ind. 600; 45 N. E. Rep.
!LEAivS a:s:d explosioxs. < 6 1
§641. Guest or inmate of family may recover from gas company
where owner is negligent.
A person making one of a family may recover for personal
injuries occasioned by an explosion in the Jiouse, and is not
chargeable with the negligence of the head of the family or
owner of the dwelling, or of any member of the family with
respect to the danger of gas escaping into the dwelling house/^**
§642. Lessee's right of action against the gas company.
The lessee or tenant has a right of action against the gas
company for negligently permitting gas to escape upon the
leased premises and injuring his possessory interest — as be-
fouling a well — while the landlord must bring the action for
any injury the reversion may sustain. If the act of the gas
company made the enjoyment of the estate less beneficial, or
in any way rendered it more expensive or inconvenient, without
fault on his part, he is entitled to such damages as he has thus
suffered.^'^
§643. Third person causing gas to escape, liability.
If a third person — one not connected with a gas company,
and for whose act it is not liable — negligently cause gas to es-
cape to the injury of a person, he will be liable to such person
for all damages sustained. Thus where a municipality in con-
structing a sewer did the work in such a negligent manner as to
1049; 36 L. R. A. 683; McGahan v. lessor recovering a judgment for an
Indianapolis, etc., Co., 140 Ind. 335 ; injury to his interest in the prop-
37 N. E. Eep. 601 ; 29 L. R. A. 355 erty.— the action not heing between
(a plumber). the same parties nor between their
150 Richmond Gas Co. v. Baker, privies. Bartlett v. Boston Gaslight
146 Ind. 600; 45 N. E. Rep. 1049; Co., 122 Mass. 209.
36 L. R. A. 683. See case cited in Of course, for an injury to tlic
note 148 of this section. person, the question of tenancy is
151 Sherman v. Fall River Iron not involved, though the injury oc-
Works Co., 2 Allen 524. curs in the house the p]aintiff has
The faihu'e of the lessee to re- leased. Ottei-back v. Philadelphia,
cover a judgment is no bar to the 161 Pa. St. Ill; 28 Atl. Rep. 991.
738 OIL AND GAS.
cause the gas pipe to break for lack of support, whereby gas
escaped into the plaintiff's house so as to cause an explosion, the
municipality was held liable, and could not escape liability by
delegating the construction of the sewer to a contractor/^" A
natural gas company furnished a mill with gas. The pipes were
arranged so that gas passed through a " regulator," which re-
duced the pressure before it reached the meter. There was a
pipe, called a " by-pass," through which gas could be turned
into the meter at the full pressure of the main. The owner had
control of both the cock used to turn on the gas through the
" regulator " and the one to turn it on through the " by-pass."
The plaintiff entered the mill to seek work, and as he was leaving
the mill owner, in turning on the gas, accidently turned the cock
admitting the full pressure. The result was that the meter ex-
ploded, injuring the plaintiff. It Avas held that the gas com-
pany was not liable ; for the only negligence was that of the mill
owner.^^^
§644. Gas turned on by owner or stranger.
If the owner of the property or a stranger turn on the gas at
the property line the gas company will not be liable to such
owner for injuries occasioned by an explosion of the gas, thus
turned on, occurring uix)n such property. The gas company has
a right to control the turning on of gas ; the stop-cocks at the
property line is its own property, and under its control. The
mere fact that the gas company did not object to the gasfitter
putting pipes in a building for the owner to turn on the gas at
the property line will not make it liable to such owner for an in-
jury occasioned by an explosion occurring in the building be-
cause of the defective piping or failure to close up pipe ends.
And there are two reasons for this : first, the gas company has
no control over the piping within the building; and second, the
i52Hardaker v. Idle Dist. CouI^ 1 53 Triple State, etc.. Gas Co. v.
oil [1896], 1 Q. B. 335; 65 L. J. Wellman (Ky.), 70 S. W. Rep. 49;
Q. B. (N. S.) 363: 74 Law T. Rep. 24 Ky. L. Rep. 851.
69 : 44 W. R. 323 ; 60 J. P. 196.
LEAKS AND EXPLOSIONS. 739
gasfitter is not its ageiit.^^* Nor is the gas company liable, al-
tliongli it otherwise would have been, for the act of a former
employee turning on the gas, where the consumer requesting it
to be turned on knew he was not then in the company's em-
ploy ; and the fact that such jjerson may have turned on the gas
for other persons, in which the gas company acquiesced, does not
make it liable, where the consumer knew he was not its em-
ployee.^^^ Where a natural gas company had high and low
pressure mains, controlled by valves securely enclosed in a box ;
and an employee of another natural gas company, desiring to
take water out of the pipes of his company, opened the gas box
by mistake and turned on the gas from the high pressure main
to the low pressure main ; and the gas, thus turned on, flowed
into the pipes of a house supplied from such low pressure»main,
and bursted the gas fixtures, causing a fire and damages to the
house ; the gas company whose valves he had thus turned was
held not liable, for its act had not caused the injury, and it had
taken proper precautions to protect its valves from intermed-
dling. But the gas company whose employee had thus inad-
t^ertently turned the valves was held liable, although at the time
he did so there was little gas in the high pressure main, it hav-
ing been turned off to make needed repairs ; and the fact that the
company owning the mains may have been negligent in with-
drawing the gas, or that the meter and regulators were out of
order, was held to be no defense ; for neither company could
escape if the concurring negligence of both of them, if such was
the case, produced the result.^^*' But where the owner of a
building requested th-e gas company to cut off his gas and re-
move its meter ; and the company sent its employee, who cut off
the gas at the street curbing Avith a key several feet long which
he inserted in the gas box for that purpose and left there while
he went into the house to remove the meter; and after he had
removed the meter and before he reached the gas box — a period
154 Flint V. Gloucester Gas and i56 McKenna v. "Bridge Water Gas
Light Co., 3 Allen 343. Co., 103 Pa. St. 633; 45 Atl. Rep.
155 Flint V. Gloucester Gas and 52 ; 47 L. R. A. 790.
Light Co., 9 Allen 552.
7-iO OIL AND GAS.
of only a few minutes — some unknown meddlesome person
turned on the gas again, of which fact the employee was ig-
norant; and shortly thereafter an injury was occasioned by the
gas escaping from the end of the service pipe extending into the
cellar, it was held that the gas company was liable for the act of
the stranger, because of the fact of the employee's negligence m
leaving the key in the position he did/"^
§645. Landlord's right of action against tenant.
■ There- is no doubt that if a tenant carelessly or negligently
cause an explosion of escaping gas in the house he is occupying,
although he in no way caused the gas to escape, he would be
liable to his landlord for the damages the house sustained ; and
much more so would he be liable if he caused the gas to escape.
§646. Tenant's right of action against landlord.
A tenant may have a cause of action against his landlord,
where he has suffered a damage from escaping gas by reason of
the latter's negligence. Thus where a landlord had the meter
removed from the house, and the fixtures from the gas pipe, by
a gas man, who left one of the pipes open and uncovered in an
upper room, which was afterwards let to and occupied by his
tenant ; and the landlord subsequently gave the tenant of the
lower floor permission to introduce gas into the house, which he
did, without notifying the other tenant; and the gas pipes in the
first tenant's apartment had been left open, by reason of which
the room filled with gas, and when she entered the room with a
candle an explosion occurred, injuring her greatly ; it was held
that the landlord was guilty of negligence, even though the
direct cause of the accident was the negligence of the gas man
157 Louisville Gas Co. v. Gutcn- it damages the building, the land-
kuntz. 82 Ky. 432. The question of lord cannot recover damages for
neglect to close the end of the pipe the injury from the gas company,
does not seem to have controlled the Creel v. Charleston, etc.. Gas Co..
case. 51 W. Va. 129; 41 S. E. Rep. 174.
If a tenant turns on the gas, and
LEAKS AND EXPLOSIOXS. 741
in not having sufficiently closed the fixtures/^^ But a landlord
is not liable to an employee of his tenant for an injury resulting
from an explosion of gas, caused by defective plumbing done by
a former tenant of the building, who employed a competent
plumber to do the work, in which the defects were not apparent
and of which such landlord had no actual knowledge/^^
^647. Owner of premises liable to injured person.
The owner of the premises may himself be so guilty of negli-
gence as to be liable to any one rightfully upon them who is
injured by an explosion. Thus if gas be escaping in a danger-
ous quantity, and he knowing of the escaping gas and the extent
of it, invite another on the premises, and does not warn him,
and an explosion occurs whereby the person so invited is injured,
such owner will be liable if he negligently caused the explosion.
Where a servant of a water company went upon certain premises,
in discharging his duty, to ascertain from a water meter the
amount of water used by the owner of the premises, and was
killed by an explosion of gas that had escaped, the owner of such
premises was held liable; for the person killed was rightfully
on the premises, lieing more than a licensee, under an implied
invitation of the owner. The mere fact that the deceased
smelled gas was considered not to be such contributory negli-
gence on his part as should necessarily defeat him ; for he was
acting under the stress of a duty.^^**
138 Kimmel v. Burfeind, 2 Daly tion not being between the same
lo5. The question of the plaintiff's parties nor their privies. Bartlett
due care was not considered. v. Boston Gaslight Co.. 122 :^Ias3,
Where the tenant has sued the 209.
gas company for an injury to his i59 Metzger v. Shultz, 16 Ind.
leasehold, and failed to recover judg- App. 454; 43 N. E. Rep. 886. re-
ment upon the merits of the case. hearing denied. 45 X. E. Rep. 619.
such judgment is not a bar to the ifio Finegan v. Fall River Gas
landlord recovering for an injury Works. 159 Mass. 311; 34 N. E.
to his reversionary interest, the ac- Rep. 523.
742 OIL AND GAS.
§648. Plaintiff must show due care on his part. — Contributory
negligence.
The burden rests upon the plaintiff to show that he was act-
ing with due care and with ordinary prudence when the accident
occurred; or in other words, his act did not contribute to the
injury. Ordinary care is all that is required of him ; but, of
course, what is ordinary care will depend upon the amount of
danger and the extent of the plaintiff's knowledge of the dan-
"■er."^ One has no right to expose himself to the mischievous
effect of gas, and if injured, hold the gas company liable; and
the burden rests upon him to show that he did not do so."- If
the plaintiff, by the exercise of diligence, could have ]u-cventcd
the injury, he cannot recover; and if the injury was a continu-
ing one, and the company could have stoy^ed the continuation of
the loss if it had been notified of it, he cannot recover for any
loss sustained after it became his duty to notify the company of
such continuation, his act being considered as contributing to
the loss sustained after the duty of informing the company has
been imposed upon him.^*'^ Where the plaintiff's house was sup-
plied with gas, but another company had a gas main ninety feet
away from which gas escaped, which passing under the ground
entered her cellar, and there exploded ; and although plaintiff
supposed the gas she detected w^as from the company's pipes that
supplied her Avith gas, though she knew of the gas leak in the
other company's main, yet it was held that she was not giiilty
of such contributory negligence as would defeat a recovery."*
161 Holly V. Boston Gaslight Co., to the burden of showing contribu-
8 Gray 123; 69 Am. Dec. 233; Lee tory negligence.
V. Troy Citizens' Gaslight Co.. 98 i62 Holly v. Boston Gaslight Co.,
N. Y. 115; Bartlett v. Boston Gas- supra.
light Co., 117 Mass. 533; 19 Am. i63 Hunt v. Lowell Gaslight Co.,
Rep. 421; Schmeer v. Gaslight Co., 1 Allen 343.
147 N. Y. 529; 42 N. E. Rep. 202; le* Consumers' Gas Co. v. Perre-
30 L. R. A. 653; German American *■ go, 144 Ind. 350; 43 N. E. Rep.
Ins. Co. V. Standard Gaslight Co., 306; 32 L. R. A. 146,
67 N. Y. App. Div. 539; 73 N. E. Where gas was leaking into the
Supp. 973. That is, where some plaintiff's cellar from a gas pipe,
statute does not change the rule as and the company's superintendent
LEAKS AND EXPLOSIONS. 743
" The leak was across the street from appellee," said the court.
" She did not receive her gas from the appellant. It is hard,
therefore, to understand how she should have thought that the
leak at appellant's sleeve, ninety feet distant, even if she knew
its existence, which does not appear from the evidence, could
have been the source of any danger to her." Where the suit was
to recover for injuries incurred from escaping gas, the plaintiff,
to establish due care on his part, it was held could not prove that
the gas company's agent advised the occupants of a neighboring
house, into which the gas had escaped from the same leak, what
to do to avoid the ill consequences from it, and that he did the
same things thus advised, if such agents gave him directions re-
specting the matter."^
§649. Owner removing from his premises.
The circumstances may be such as to require the owner or
occupants of a house to vacate it in order to avoid injury to him-
self ; and if he do not he will be guilty of such contributory
negligence as will bar a recovery. Thus where the plaintiff's
health was injured by inhaling gas escaping from a defective
main in the street and entering his dwelling house, it was held
to be a want of due care on his part to remain in the house,
after he had a reasonable opportunity to procure another house
or place of residence and to remove thither ; and that the gas
company could not properly be held liable in damages for conse-
quences which ensued after such removal might have been
made."® So where the plaintiff was a minor living with his
father, and was injured by inhaling gas at night, which had
escaped from a street main during the day previous, and of
which the gas company was not notified until the afternoon, it
came to locate the leak, and plain- was not guilty of negligence con-
tiff went into the cellar at his re- tributing to the explosion. Tipton
quest, but remained no longer than Light, etc., Co. v. Newcomer (Ind.
was necessary to point out the place App.). 67 N. E. Rep. 548.
of the supposed leak, and, without ics Emerson v. Lowell Gaslight
warning her, the superintendent Co., 3 Allen 410.
lighted a match, causing an explo- lee Hunt v. Lowell Gaslight Co.,
sion, it was held that the plaintiff 1 Allen 343.
744: OIL AND GAS.
was held that the phiintiff could not maintain his action if his
father failed to adopt snitable precaution against the hurtful
effect of the gas after it was discovered to be filling the house ;
and that it was for the jury to decide whether there was not a
manifest want of prudence in remaining in the house after it
became known to the inmates that it was being filled with gas,^"
Where a strong smell of gas prevailed throughout the dwelling
house, and the gas company sent its servant to repair the leak,
who, after professing that he had made the necessary repairs,
informed the family that all Avas safe, and assured them that
the odor of gas came from a gas post in the street, it was held
not negligence on their part for the members of the family to
remain in the house after receiving such assurance/^® Of
course, the rule is not so stringent as to require the occupant to
leave the house as soon as he smells tjge escaping gas, for the
odor may be slight, although unusual. But even though the
amount be small, yet it may so accumulate as to render it dan-
gerous, either by reason of an injury inflicted uix)n him by an
explosion or to his health, to remain in the house ; or the gas
may escape in such volume as to require immediate action on
his part. But he is not bound to remove before making a timely
effort to stop the flow of escaping gas or to have the gas com-
pany stop it ; unless it is clear, or there is a strong presumption,
that it would be dangerous to remain longer in the house.^*^'*
Of course, the removal here discussed is a removal of the per-
son and not of his goods ; for he is not bound to risk his health
in -removing them, and there is not, usually, much likelihood
that they will be injured.
§650. Duty of property owner to cut off supply of gas.
The owner of the property must cut off the gas when discon-
tinuing the supply, where the means of cutting it off is on his
167 Holly V. Boston Gfisliirht Co., 14G Ind. 600; 45 N. E. Rep. 1040;
8 Gray 123; 69 Am. Dec. 233. 36 L. R. A. 683.
168 Richmond Gas Co. v. Baker, igo Kibele v. Philadelphia. 105
Pa. St. 41.
LEAKS A^^D EXPLOSIONS. 7-i5
own premises, or at least within his buildings ; and the gas
company is under no duty to enter the building and cut off the
gas in order that explosions may be prevented. Thus where
the stop-cock was within the house, situated between the inner
wall and the meter ; and the last tenant, on removing, gave the
usual notice that he did not require any further supply; and
one of the gas company's workingmen, at the tenant's request,
removed the chandelier from one of the rooms, leaving the end
of the pipe properly secured, the internal fittings being the
property of the owner of the house ; and while the house re-
mained untenanted, the gas by some unexplained means escaped,
an explosion occurred, and the house was injured ; it was held
that the company could not be held liable on the theory that it
was its duty to cut off the supply of gas, but the property owner
was guilty of contributory negligence for not having turned
the stop-cock so as to shut off the flow of gas.^^° In another in-
stance where the consumer was informed that the employee
who had turned on the gas was not authorized to do so, that it
was the duty of another employee to turn it on, that there was
a leak in the regulators, and that it could not attend to the leak
before the next morning, it was held that the failure of the
consumer to turn off the gas on receiving this information of
the defect was such negligence as precluded a recovery. ^^^
§651. Searching for leaks with a light.
Courts will not say as a matter of law that it is contributory-
negligence to search for leaking gas with a lighted candle or by
the use of matches. It is not negligence per se to thus search
for escaping gas.^"" jSTor is taking a lighted lamp into a cellar
filled with gas an act of contributory negligence, as a matter of
law, Avhich will preclude a recovery for injuries occurring ten
i70Holden v. Liverpool Gas Co.. 1^2 pine Bluff, etc., Co. v. Schnei-
3 C. B. 1; 1.5 L. J. C. P. 301; 10 der, 62 Ark. 109; 34 S. W. Rep.
Jur. 883. ,547; 33 L. R. A. 366; People's Gas-
171 Kohler Brick Co. v. N. W. liorht and Coke Co. v. Amphlett, 93
Ohio, etc., Gas Co., 11 Ohio Cir. 111. App. 194.
Ct. 319; 5 Ohio Cir Dec. 379.
746 OIL AX I) GAS.
minutes later, altliougii the person injured knew at the time he
took the light into the cellar that it was filled with gas/'^ In
such instances the question of contributory negligence in thus
searching for escaping gas is one for the jury.^"'* And where
the tenant of the plaintiff having smelt escaping gas, which he
reasonably supposed proceeded from the furnace, and under that
impression went with a lighted candle into the cellar to examine
such furnace, it was held that there was not such contributory
negligence as prevented a recovery for the damages occasioned
by an explosion, the candle having come in contact with gas
escaping from the defendant's pipe/'^ " The other ground of
defense, as to the contributory negligence of the plaintiff's in-
testate," said the court in one case, " we do not think should be
taken from the jury. Sometimes it is extremely dangerous to
take a light to discover the location of a gas leak, and some*times
it is not, depending upon various circui4stances'; among others,
upon the extent of the leak, the size of the enclosure where lo-
cated, and the length of time the leak has existed. The plain-
tiff's intestate, a boy of 18, took a candle, with the statement
that he had seen gas men take a candle to find a leak, and it is
a fact, that they do so upon some occasions. The whole ease as
to the contributory negligence of plaintiff's intestate should be
submitted to the proper judges of fact." ^^^ Searching for
leaking gas with a lighted taper, by the house owner who dis-
covers the escape of gas after a plumber employed to put in gas
fixtures has left, is not contributory negligence per se, but
whether or not there is such negligence is a question for the
jury."^ If the gas is escaping in large quantities, the court
173 Consolidated Gas Co. v. Crock- i76 Scheemer \. Gaslight Co., su-
er, 82 Md. 113; 33 Atl. Rep. 423; pra.
31 L, R. A. 785. itt Plouk v. Jessop, 178 Pa. St.
174 Scheemer v. Gaslight Co., 147 71; 27 Pittsb. L. J. (N. S.) 162;
N. Y. 529; 42 N. E. Rep. 202; 30 39 W. K C. 156; 35 Atl. Rep, 851.
L. R. A. 653; Pine Bluff, etc., Co. In this case the plaintiff noticed
V. Schneider, supra; German Amer- leaking gas, but the plumber as-
ican Ins. Co. v. Standard Gaslight sured him that " everything is
Co., 67 N. Y. App. Div. 539; 73 N. * right"; and after he had left, the
Y. Supp. 973. plaintiff, still noticing it, took a
175 Bartlett v. Boston Gaslight lighted candle and searched for it,
Co., 122 Mass. 209. as he had seen the plumber do it.
LEAKS AXD EXPLOSIONS. 747
may possibly say that it was contributory negligence to search
for the leak with a lighted taper.^'* If the owner of the prem-
ises employ a plumber, the act of the plumber in entering a
cellar with a lighted candle to locate a leak does not prevent
such owner recovering damages occasioned by an explosion.^'''
Where an inspector of water meters Avent to a shed to examine
a water meter therein on the gaslight company's premises, and
was assured by the company's officers, who were present, that
there was no danger, although he detected gas that had escaped,
and demonstrated the fact by lighting matches themselves; it
was held that he was not precluded from recovering damages on
the ground of contributor)' negligence, although he apprehended
danger when making the examination. The act of the officers
of the gas company had lulled his suspicions ; and he had a
right to rely upon their statements.^^" So where a laborer was
ordered by his superior to enter a still and repair it, and was
killed by an explosion of gas which had entered for lack of a
stop-cock, and which was ignited by a lighted candle he was
carrying, it was held that the company was liable, although it
was almost absolutely certain that gas from the other stills
nearby in use would turn back into the empty still, in the ab-
sence of a stop-cock. It was said that he did not assume the
risk ; for he had a right to rely upon the duty of the master to
furnish him a reasonably safe place within which to work.^*^
But to take a lighted candle to a place where it is known that
gas in a considerable quantity is escaping, is such an act of
negligence as will prevent a recovery for damages occasioned
by the gas exploding by reason of its coming in contact with
the light.^'^^ In commenting upon the last two cases cited, the
Supreme Court of Maryland pointed out the distinction be-
tween them and those cases where it was held not to be eon-
1 "8 Pine Bluff, etc.. Co. v. Schnei- iso Washington Gaslight Co. v.
der, supra. Eckoff. 7 App. Cas. D. C. 372.
I'^^o Scheraierhorn v. Metropolitan isi Nichols v. Brush, etc., Co., 53
Gaslight Co., 5 Daly 144; Parry v. Hun 137; 6 N. Y. Supp. 601.
Smith, L. R. 4 C. P. Div. 32.5; 33 i82 0il City Gas Co. v. Robinson,
Gas J. 899. 99 Pa. St. 1; 13 Rep. 253; Lanigan
V. Gaslight Co., 71 N. Y. 29.
748 OIL AND GAS.
tributory negligence to use a light in searching for gas: " In
these cases where the explosion instantly followed upon a light
being brought in contact with the gas, and there could be no
possible dispute that the bringing of the light in contact with
the gas caused the explosion; but when there is not such a
connection between the act of entering the house with a lighted
lamp and the explosion of gas as to establish with a certainty
and to the exclusion of any other reasonable hypothesis, the
relation of cause and effect, the question as to what caused the
explosion is for the jury to solve under proper instructions from
the court. When, therefore, as here, more than ten minutes
intervened between the time the lamp was taken into the cellar
and the time the subsequent explosion occurred, and wdien, as
here, the lamp itself was uninjured, it would be impossible for
the court to assume that the lighted lamp caused the explosion,
and to rule, as a conclusion of law, thaf^khe plaintiff's employees
were guilty of contributory negligence in taking the lamp into
the cellar ; this is true also with respect to the lighting of
matches to ignite the gasoline in the stove." ^^^ Where gas
escaped into a sewer from a defect in a pipe, and the plaintiff,
a civil engineer, entered the sewer, wdiereupon an explosion
followed, it was held that there could be no recovery, the court
saying: " The gas company was responsible for what might,
in the nature of things, occur from its neglect, and its re-
sponsibility was not limited by what its officers may have
thought to be improbable or even impossible. The gas pipe
and sewer Avere in the immediate vicinity of each other. In
the- former was a defect, and from it the gas, not merely by
absorption or by gravity, but also by pressure, found its way
into the sewer. This certainly resulted from the defendant's
negligence, because but for the defective pipe there could have
been no escape of gas. But the plaintiff was also bound to the
exercise of a reasonable care for his own safety. He was a
civil engineer, and may be presumed to have had some knowl-
edge of the dangerous nature ^f illuminating gas, of its power
to penetrate the earth, and of its explosive character when
183 Consolidated Gas Co. v. Crocker, supra.
LEAKS AXD EXPLOSIONS. 749
mixed in certain quantities Avitli common air. The defendant
was bound for the consequences of its neglect, though these
consequences were not and could not by ordinary prudence have
been anticipated, whilst the plaintiff was bound only to a
knowdedge of the probable consequences of the fact which he
was cognizant, and to that ordinary prudence w^hich the conse-
quences required." ^^*
§652. Contributory negligence a question for the jury.
Whether or not the plaintiff has been guilty of such negli-
gence as contributed to the iujury is a question for the jury,
under the instructions of the court.^*^ Where the charge was
injury to the plaintiff's health by gas escaping into the house,
it was held to be a question for the jury whether remaining in
the house after a knowledge that gas was escaping was not a
manifest lack of prudence.^^*' x^nd where the charge was that
gas escaped into the barn and killed plaintiff's horse, it was
held a question for the jury to determine Avhether he was guilty
of contributory negligence in leaving the horse in the barn
after discovering the odor of gas, the odor not being so strong
as to possibly impress upon him a sense of actual danger.^^^
184 Oil City Gas Co. v. Robinson, in searching for the place of the
supra. See Sauvage v. English Gas escape of the gas. presented a
Co. of Paris, 4 Gas J. 136 (a French lighted candle at an opening, caus-
case) ; Vallee es qualite v. New City ing an explosion, it was held that
Gas Co., 7 Am. Law. Rev. 767 ; the negligence was not the negli-
Brown v. New York Gaslight Co., gence of the owner. Baltimore Con-
— Anthon's N. P. Cas. 3.51: Parkin solidated Gas Co. v. Getty (Md.),
V. Wirksworth Gas Co., 26 Gas J. .54 Atl. Rep. 060.
496. 1*5 Kibele v. Philadelphia, 105 Pa.
Perhaps if the gas be accidentally St. 41; Ottersbach v. Philadelphia,
lighted there may be a recovery. 161 Pa. St. Ill; 28 Atl. Rep. 991:
Bartlett v. Boston Gaslight Co.. 122 Holly v. Boston Gaslight Co.. 8
Mass. 200. Gray 123; 60 Am. Dec, 233.
It is not negligence for the owner i^e Holly v. Boston Gaslight Co.,
of a house to leave a house vacant 8 Gray 123; 69 Am. Dec. 233. See
for nearlv a month without inspec- Hunt v. Lowell Gaslight Co.. 1
tion. Where a house was thus left Allen 343.
vacant, and an odor of gas was dis- is? Lee v. Troy, etc.. Co.. OS X. Y.
covered in and about it. and the 115.
neighbors called a policeman, who.
750 OIL AND GAS.
To defeat the plaintiff, his contributory negligence must con-
tribute materially and essentially to the injury; and the jurors
are the judges of this question.^'"* The conduct of the parties
may be shown, in order that the jury may determine whether or
not the plaintiff neglected to use ordinary care in seeking relief
or resorting to expedients readily available for his own pro-
tection and security. ^^^ Where the deceased was killed by in-
haling gas, but the evidence showed that he was under certain
stress of duty, it was held to be a question for the jury whether
the risk run did not seem to be great, and if there had been
ventilation would not have been great; and for that reason he
could have taken the risk without releasing the defendant by
his contributory negligence. ^^^ An inspector of a water com-
pany went upon the premises of a gas company to examine a
gas meter. The meter was in a shed, and the officers of the
gas company assured him that there wa%no danger in taking
a lighted candle into the shed, and demonstrated the fact by
themselves lighting matches first. He was injured by an ex-
plosion of gas that had accumulated in the shed. It was held
that the fact the inspector had apprehended danger w\as not
conclusive evidence of contributory negligence on his part, but
the question was one for the jury.'^®^
§653. Negligence of parent, wife or servant.
In those jurisdictions where the negligence of the father oi
mother is allowed to defeat the right of his minor child to re-
cover damages caused by the inhaling of gas or its explosion, the
child must show not only that it was free from contributory
188 Oil City Fuel Supply Co. v. i9i Washington Gaslight Co. v.
Boimdy. 122 Pa. St. 449; 15 Atl. Eckloff, 7 App. D. C. 372.
Rep. 865 ; Lanigan v. New York Where a city caused breaks in gas
Gaslight Co., 71 N. Y. 29. pipes in digging a sewer, it was
189 Holly V. Boston Gaslight Co., lield that the owner of a cellar, in
supra. which an explosion occurred could
190 Finnegan v. Fall River Gas not have anticipated that the es-
Works Co., 159 Mass. 311; 34 N. E. Piping gas would follow an old
Rep. 523; Citizens' Gaslight, etc., sewer into his cellar. Aurora Gas-
Co. V. O'Brien, 118 111. 174; 8 N. light Co. v. Bishop, 81 111. App. 493.
E. Rep. 310.
LEAKS AND EXPLOSIOXS. 751
negligence, but also its father or mother ; and a want of ordinary
care of the father or mother will defeat its cause of action/'-*^
But it has been held that negligence on the part of the parent
which partly occasioned the accident was not such negligence
as would defeat its cause of action; and that negligence which
would not defeat an adult was not such as would defeat a
minor/^'* Where the evidence in a case showed that the
mother and her infant child, who was the plaintiff, slept together
in a room without gas fixtures, and in the morning the mother
was found dead and the child insensible, and there was an en-
tire absence of evidence to show that either the mother or child
knew of the escape of gas, or was conscious of its presence, in
time to leave or take precautions against or prevent its effect
by opening the windows; and it was shown that the mother
was a sober and prudent woman ; and that on the day before
there was no smell of gas in the street, it was held that the evi-
dence showed due care on the part of the child.'"* The negli-
gence of the husband or his servant acting under his directions
will bar the right of the wife to recover.'"' So the negligence
of the plaintiff's servant will bar his (the plaintiff's) right to
recover ; as where he went with a lighted candle to search for
escaping gas.'"*' So, again, the negligence of the deceased will
bar his representatives.'"' But where the deceased was a
servant, and was directed to go to the place by the use of a ladder
of a certain length, but selected one much shorter; it was held
that he was bound to select the course which was farthest
from danger, and if there was any difference in the two ways,
it was a question for the jury to determine if he deliberately
chose the most dangerous one.'"''
192 Holly V. Boston Gaslight Co.. band sent a servant to search for
8 Gray 123; 60 Am. Dec. 233. gas, who took a lighted candle,
193 Lannen v. Albany Gaslight iog Pine Bluff Water and Light
Co.. 46 Barb. 264 ; affirmed 44 N. Y. Co. v. Schneider, 62 Ark. 109 ; 34
459. S. W. Rep. 547; 33 L. R. A. 366.
194 Smith V. Boston Gaslight Co., i97 Lehigh Valley Coal Co. v.
129 Mass. 318. Jones, 86 Pa. St. 432.
105 Vallee es qualite v. New City los Citizens' Gaslight, etc.. Co. v.
Gas Co., 7 Am. Law Rev. 767. Hus- O'Brien. 118 111. 174; 8 N. E. Rep.
310.
752 OIJ. AND GAS.
§654. Contributory neg-ligence of tenant may bar landlord, —
reversionary interest.
The negligence of the tenant will bar the landlord recovering
for damages to his property caused by an explosion.''-"' Thus
where gas escaped from a street main into a house, and the ten-
ant going in search of the escaping gas with a lighted candle
caused an explosion, it was held that if he was negligent, thus
causing the explosion, the landlord could not recover for injuries
to his house. " If the tenant," said the court, " upon discovering
the presence of gas in a large quantity in the house, neglected
to give notice to the agents or servants of the gas company, or
take reasonable precautions to remove or exclude the gas, and
recklessly brought the flame of a candle in contact Avitli it, thus
bringing about injurious effects which would not have followed
but for such reckless or negligent conduct on his part, the gas
company ought not to be held responsible Ikr those results. If
the intervening misconduct of the occupant of the building
produced the explosion, which was the immediate cause of the
injury to the building, the plaintiff cannot charge the legal re-
sponsibility for that result upon the original negligent act or
omission of the gas company." ■"** But if the tenant was not
guilty of any negligence, then, of course, the landlord could
recover damages from the gas company. In such an event the
landlord has the burden to show that the injury was caused by
the gas company's negligence ; that the tenant's negligence did
not materially contribute to the injury, in addition to showing
that his own act did not contribute to it; and that the tenant,
if he discovered the presence of gas, took reasonable means and
precautions to remove and exclude it, or, if he had no knowledge
of what precautions should have been taken, he made proper ef-
forts to notify the gas company. If the tenant accidentally
ignited the gas, or if he reasonably supposed the gas proceeded
from another source, as from a furnace, and under that impres-
sion went in search of it with a light, thus causing an explosion,
199 Creel v. Charleston, etc., Gas 200 Bartlett v. Boston Gaslight
Co., 51 W. Va. 129; 41 S. E. Rep. Co.. 117 Mass. 533; 19 A. Rep. 421,
174.
LEAKS AND EXPLOSIONS. 753
the landlord may recover for the damages occasioned his house
by the explosion.'**^
§655. Negligence of contractors. — Lessee.
A gas company cannot escape liability by simply placing the
management of its gas works in charge of a person called a
" lessee." "**' But there is no doubt that the company would
not be liable if it had made an actual lease of its plant, and
surrendered all control over it. Where a contractor had not
yet turned over to the gas company the plant, including the
mains in the street, he was constructing for it ; and gas escaped
because the mains were not securely connected with each other,
the gas company was held liable. As to third persons the con-
tractor was regarded as the agent of the gas company, on the
ground that the right to lay and put down gas mains in the
street Avas a permission from the municipality and the exercise
of a right under its charter ; and therefore the gas company
could not escape liability of letting the contract to an independ-
ent contractor. [n passing on the case the court used the fol-
lowing language : " Even though the person who causes the
injury is a contractor, he will be regarded as the servant or
agent of the corporation for which he is doing the work, if he
is exercising some chartered privilege or powder of such corpora-
tion w^ith its assent which he could not have exercised inde-
pendently of the charter of such corporation. In other words,
a company seeking and accepting a special charter must take
the responsibility of seeing that no wrong is done through its
charter poAvers of persons to whom it has permitted their exer-
201 Bartlett v. Boston Gaslight source of the escapinof gas, causing
Co., 122 Mass. 209. See Sherman an explosion by which he is injured,
V. Fall River Iron Works Co., 2 has contributed to his injury to the
Allen 524. extent that he is barred from recov-
It cannot be said as a matter of ering damages. People's Gaslight
law that a tenant of a flat, who per- and Coke Co. v. Amphlett, 9.3 111.
ceives the odor of escaping gas, en- App. 194.
ters an adjoining vacant apartment 202 Consolidated Coal Co. v. Sen-
without permission, lights a match inger. 79 111. App. 4-^6-, affirmed 179
to aid him in ascertaining the III. 370.
754 OIL AND GAS.
cise." ^°^ But a result diametrically opposite to this decision
was reached in another State ; and in passing on the case the
conrt nsed the following language : " It is to be regretted
that corporations invested with the right of appropriating pri-
vate property and entering the public highways for the purpose
of laying their pipes in which to transport and distribute one of
the most dangerous natural agencies in existence should be
permitted to relieve themselves from the duties and responsibili-
ties of business by letting part of the work requiring the highest
degree of care to an independent contractor, but the law is so
settled." ^''* Where the plaintiff was a butler in the employ
of a club, and defendant had been employed by the club to
make alterations in the club house, and he had contracted with
a gasfitter to do the gas fittings, which he did ; it was held
that if the gasfitter laid down any pipe not specified in his con-
tract with the defendant, and by reason of U defect in such pipe
the gas escaped, the defendant was not liable ; and it was also
held that even if the pipe was included in the contract, and the
gas had been turned on by the plaintiff's own order while the
defendant's men were in the house, the house being unoccupied
and not completed, that the plaintiff could not recover.""^
203 Economic Fuel Gas Co. v. My- L. T. 252; 47 W. R. 658; 15 T. L.
ers, 168 111. 139; 49 N. E. Rep. 66; R. 483; [1899] 2 Q. B. 392.
affirming 64 111. App. 270; 1 Chic. 204 Chartiers Valley Gas Co. v.
L. J. Wkly. 276. A similar decision Lynch, 118 Pa. St. 362; 12 Atl. Rep.
is Hardaker v. Idle Dist. Council 435; Chartiers Valley Gas Co. v.
[1896], 1 Q. 3. 335; 65 L. J. Q. B. Waters. 123 Pa. St. 220; 16 Atl.
(N. S.) 363; 74 Law. T. Rep. 69; Rep. 423; 25 Am. and Eng. Corp.
44 W. R. 323; 60 J. P. 196. For Cas. 400. See Phoenix, etc., Co. v.
other cases to same effect, see Gray Dethick, 14 Gas J. 536. .
V. Pullen, 5 B. and S. 970; 34 L. J. A gas company by permitting a
Q. B. 265; 11 L. T. 569; 13 consumer to employ a person to put
W. Iv. 257; Woodman v. Metropol- in a gas pipe and turn on the gas,
itan. etc., Co., 149 Mass. 335; 21 does not make such person its agent,
N. E. Rep. 482; 4 L. R. A. 213; so as to render it liable for an ex-
Denning V. Terminal Ry., 49 X. Y. plosion caused by his negligence.
App. Div. 493; 63 N. Y. Supp. 615; Jlint v. Gloucester Gaslight Co., 3
Vnsbeck v. Kellog (Minn.), 80 N. Allen 343.
W. Rep. 957 ; Holliday V. Nat. Tele- 205 Rapson v. Cnbitt. 9 Mess. &
phone Co., 68 L. J. Q. B. 1016; 81 Wels., 710; C. and M. 64.
LEAKS AND EXPLOSIONS. 755
§656. Right of action over.
The fact that a gas company has been compelled to pay dam-
ages because of its negligence will not always bar its right to
recover from the person guilty of the original act that led on to
the negligent conduct of the company. Thus, where it appeared
from the evidence that an explosion Avas occasioned by gas leak-
ing from a broken pipe of the plaintiff gas company, and that
judgments had been recovered against it by the parties injured,
from which appeals had been taken which were subsequently
compromised ; it was held that the gas company could recover
from the traction company the damages it had sustained by
reason of the negligence of the latter in excavating the street
and causing the breaking of its pii^e, in an action of trespass
brought to recover the money paid by it for the injuries caused
by the negligence of such traction company.'"*'
§657. Liability of gasfitter.
If a gasfitter, in fitting up a house, put in defective pipes;
or if in repairing those already in, he repairs them defectively,
and thereby gas escape and injure the inmates, or explodes,
injuring the house, he will be liable for the damages sustained,
the same as where a gas company negligently permits gas to
escape.""^
§658. Evidence to show due care on gas company's part.
The defendant gas company may always show that it had
used due care to prevent leaks or explosions, and for that pur-
The action for damages incurred Atl. Rep. 934. See District of Co-
from the operation of a plant is lumbia v. Washington Gaslight Co.,
properly brought against the person 9 Mackey 39; 161 U. S. 316.
operating it, although another per- 207 Parry v. Smith, L. R. 4 C. P.
son defectively erected such plant. Div. 325; 33 Gas J. 899; Hemstead
Hyde Park, etc., Co. v. Porter, v. Phoenix Gaslight, etc., Co., 3 H.
167 111. 276; 47 N. E. Rep. 206; and C, 745; 11 Jur. N. S. 626; 13
affirming 64 111. App. 152. W. R. 662; 34 L. J. C. P. 108; 14
. 206 Philadelphia Co. v. Central Gas J. 399.
Traction Co., 165 Pa. St. 456; 30
756 OIL AND GAS.
pose it may show that it had used proper material in the con-
struction of its plant ; that it had used proper pipes or mains,
where the charge is that they had become weak and rotten from
long use or from the effect of the elements upon them,"''^ And
where the charge is that it negligently permitted the gas to
escape after it had notice that it was escaping, the company, to
show due diligence on its part, may show its system of com-
plaints for leaks, and what was its course of business with
regard to such complaints, for the purpose of showing that due
preparation for accidents had been made by it, but not for the
purpose of showing that it had exerted the same degree of dili-
gence it did in the case as it had done in other cases. "^^ In one
case it was held that the original entries in the gas company's
books of leaks and repairs along the line of pipe for five months
prior to the explosion where it was charged the leak occurred
were competent, as tending to show thatrthe company had pro-
vided an adequate system for the protection of the public from
the unusual danger of escaping gas."^'' Copies of notices sent
by the gas company to consumers calling attention to the lia-
bility of leaks to occur from the excavations being made in the
streets by the city or various construction companies within
a year or so prior to the accident complained of, are ad-
missible on the question of due care on the part of the gas com-
pany. "^^
208 Consumers' Gas Trust Co. v. Dechert v. Municipal, etc., Co., 57
Corbaley, 14 Ind. App. 549; 43 N. N. Y. Supp. 225.
E. Rep. 2.37. 211 Powers v. Boston Gaslight Co.,
200 Holly M. Boston Gaslight Co., 158 Mass. 257; 33 N. E. Rep. 523.
8 Gray 123; 69 Am. Dec. 233. Where the gas escaped from a
210 Koplan V. Boston Gaslight Co., street main, passed under the frozen
177 Mass. 15; 58 N. E. Rep. 183; crust of the surface of the ground
Powers V. Boston Gaslight Co., 158 into the plaintiff's cellar, a witness.
Mass. 257; 33 N. E. Rep. 523. experienced in digging holes
The rules of boards of fire under- through the frozen earth, was al-
writers and other electric light com- lowed to testify how mTich labor it
panics, prescribing the manner of would take to dig such holes as had
wiring buildings, are inadmissible * been dug by the gas company
evidence on an issue whether an through the frozen earth in search
electric light company had defective- for the leaks, in order to show
ly insulated its wires in a building. whether it had used reasonable dili-
LEAKS AXD EXPLOSIOiSrS. 757
§659. Expert evidence to show effect of electrolysis.
Where the question arises that the defects in the gas mains or
pipes were caused by electrolysis, experts may be called to show
what effect electricity has upon gas mains or pipes, and its
tendency to destroy the iron fibre and render them unsafe, and
to give their opinions that the pipes were affected by electrolysis,
and the reasons for their opinions."^"
§660. Evidence in cases of inhalation of gas.
In an action to recover damages occasioned by the inhalation
of gas, aside from the question of an expert evidence, it may
be shown that the plaintiff and other members of his family
living with him had been in good health until the influx of
gas ; and that after that they all became ill, or even some of
them died."^^ l^o particulars, however, of the sickness of the
other members of the family are admissible to show the
nature of the gas and its effects upon such other mem-
bers, who inhaled it at the same time with the plaintiff.^^* Nor
is it admissible to show that wherever the gas entered a house
in the neighborhood, Avhere their drains were connected with
the sewers through which the gas escaped into the plaintiff's
house, sickness followed. "^^ Xor can it be sliown that gas es-
caped into a block of houses directly opposite ])laintiff's house,
in order to charge the defendant with notice of the leak, before
it is shown it came into the plaintiff's."^'' Where the plaintiff's
theory is that the gas escaped into a sewer, and thence through
the house drain into his house, it may be shown that it entered
other houses similarly connected with the same sewer, or with
a sewer entering into the sewer into which it is claimed it
gence in finding and stopping the Co., 44 N. Y. App. Div. 158; GO
leak. Emerson v. Lowell Gaslight X. Y. Supp. 628.
Co., 3 Allen 410. ^i* Hunt v. Lowell Gaslight Co.,
2i2Koplan V. Boston Gaslight Co., 8 Allen 109; 85 Am. Dec. 097.
177 Mass. 15; 58 N. E. Rep. 183. 215 Hunt v. Lowell Gaslight Co..
213 Hunt V. Lowell Gaslight Co., 3 Allen 410.
1 Allen 343; Hunt v. Lowell Gas- 210 Emerson v. Lowell Gaslight
light Co., 8 Allen 169; 85 Am. Dec. Co., 6 Allen 146; 83 Am. Dec. 021.
697. See Beyer v. Consolidated Gas But see Apfelbach v. Consolidated
Gas Co. (Pa.), 54 Atl. Rep. 359.
758 OIL AND GAS,
escaped.^^^ The gas company may not introduce evidence to
show that plaintiff's sickness and his family's was in fact
typhoid fever, that earlier occupants cf the house had been
afflicted with much illness of the same character, that several
families had been compelled to recover from it on that account,
and that its location was low, upon made land, and it was
generally regarded to be unhealthy. "^^ It may be, shown that
gases were set in motion by the illuminating or natural gas
escaping into the server where they were, and that they were
pushed into the plaintiff's house, causing illness of which com-
plaint is made."^'' If the charge be that the company's escap-
ing gas caused the death of the plaintiff's child, the plaintiff
must show not only the negligence of the child, the fact that
the death was due to it, and that neither he nor the child con-
tributed to it, where the plaintiff is required to show his free-
dom from contributory negligence.""" In^the case just cited,
the child was found dead in a cellar, the gas escaping from a
leak in a joint of the gas pipe, which had never leaked before
and around which the plaintiff had just caused a load of coal
to be thrown ; but the physician could not say that its death
was due to the inhalation of gas ; and it was held that an in-
struction to find for the gas company was proper.""^ Evidence
217 Butcher v. Providence' Gas Co., Apfelbach v. Consolidated Gas Co.
12 R. I. 149; 34 Am. Rep. 626; 18 (Pa.), 54 Atl. Rep. 359.
Alb. L. Jr. 372. Ottawa Gaslight 221 it may be shown that the
and Coke Co. v. Graham, 35 111. plaintiff for a long time — as, for
346. two years — made no claim for dam-
218 Hunt V. Lowell Gaslight Co., ages. Emerson v. Lowell, 3 Allen
1 Allen 343. 410.
219 Hunt V. Lowell Gaslight Co., The master is not liable for in-
8 Allen 169; 85 Am. Dec. 697. juries to his servant from exposure
As to what is sufficient to show to poisonous gases generated by coal
due care on the part of the plaintiff fires in his shop, whose effect is en-
who has breathed the gas while hanced by the admission of extreme
asleep, see Smith v. Boston Gaslight cold air, where he is ignorant of
Co., 129 Mass. 318, cited elsewhere, the unwholesome and dangerous con-
and Shogland v. St. Paul Gaslight dition of the building, and could
Co. (Minn.), 93 N. W. Rep. 668. nt)t, by the exercise of ordinary care,
220 State v. Consolidated Gas Co., have known of the danger. Mait-
85 Md. 637; 37 Atl. Rep. 263. See land v. C. L. & R. R. Co., 3 Ohio
Leg. News. 289.
LEAKS AND EXPLOSIONS. 759
is admissible, in case of an injury from inhaling gas, to show
that when artificial respiration was resorted to the odor of gas
coming from the liings was perceptible. ""'
§661. Expert evidence on inhalation of g^as.
Where the action is to recover damages cansed to the plain-
tiff or his intestate by the inhaling of gas that had been negli-
gently released, or permitted to escape, testimony of physicians
to show the effect upon the health or system of the plaintiff or
the intestate is admissible ; and they may testify whether or
not the breathing of the gas produced the particular sickness it
is claimed to have done.^^^ But a physician who had been in
practice for several years, without any experience concerning
the effects upon the health by breathing illuminating gas, was
held not to be qualified to testify in relation thereto as an ex-
pert, and experience gained from attending upon other persons
made ill by breathing gas from the same leak was not sufficient
to qualify him to testify, nor was he permitted to testify that
the plaintiff had told him that gas entered his house a year or
The owner of a blast furnace is External injury in an action to
not liable to his servant for injuries recover damages occasioned to the
received by the inhalation of gas person by an explosion of gas need
not sufficient in quantity to affect not be shown. Fellvvood v. Pearson,
an ordinary individual. — as, where 23 Gas J. 248. The fact of actual
his lungs are over-sensitive from a injuiy is a question for the jury,
previous illness, if snch master had Damages for a severe shock oc-
no reason to suppose he was not casioned by an explosion may be
sufficiently strong to endure the gas recovered. Fellwood v. Pearson, su-
without risk. Parlin, etc., Co. v. ^^ro.
Finfrouck, 65 111. App. 174. 223 Hunt v, Lowell Gaslight Co.,
For instance where the conduct 8 Allen 169; 85 Am. Dec. 697.
of the superintendent in quieting EK'idence that the plaintiff did
the fears of the servants were not claim any damages for more
enough to prevent the defense of than two years after the injury is
contributoiy negligence, see Wag- admissible; but evidence that the
ner v. H. W. Jayne Chemical Co., plaintiff, while sick in bed from
147 Pa. St. 475; 29 W. N. C. 490; the effects of the gas. did not as-
23 Atl. Rep. 772. cribe it to the effects of the gas or
222 Menneilley v. Employers', etc., say anything as to the cause of it,
Corp., 148 N. Y. 596; 43 N. E. Rep. is not admissible. Emerson v. Lo-
54; 31 L. R. A. 686. well Gaslight Co., 3 Allen 410.
760 OIL AND GAS.
SO before, and that the inhalation of it made him sick.'-* And
in this same case it was held that the evidence of an agent of
the company in charge of its gas works, who did not know or
believe gas was noxions to health, was not admissible for the
pnrpose of affecting the question of care and diligence which
it was the duty of the company to exercise, but it was held tliat
he was competent to give his opinion upon the general question
as to the alleged deleterious effect of gas upon the health of
persons exposed to it.""^ The plaintiff may, however, show all
the facts and circumstances attending his sielcness, to which
may be added the opinions of skilled and experienced persons
as to the cause which produced it ; and the opinion may be
taken as to whether or not it might have been or probably was
produced by the gas to which plaintiff was exposed in his
house.^"® So expert evidence is admissible to show that hard
coal burned in a generator would produc^ carbonic acid gas
and carbonic oxide, that both are poisonous, and the former,
because it is higher than air, would ascend to the ceiling, in
order to show the presence of gas at the place where the victim
fell ; but he may not be asked if gas was present at such place,
being only permitted to say that if such gas escaped it would
have a tendency to go to the place where the deceased fell.^"^
And a witness having no practical experience, all his knowl-
edge having been acquired from reading standard authorities
and study, may testify as to the effect of gases from hard coal
on the human being. -'^
§662. Proof of effect upon growing vegetation or grass.
In order to determine whether or not gas escaped to the in-
jury of the plaintiff, it may not only be shown that the odor
224 Emerson v. Lowell Gaslight O'Brien, 15 111. App. 400; affirmed
Co., 6 Allen 146; 83 Am. Dec. 621. 118 111. 174.
225 /6id. Emerson v. Lowell Gas- 22s citizens' Gaslight, etc., Co. v.
light Co., .3 Allen 410. O'Brien, 15 Bradw. 400.
226 Emmerson v. Lowell Gaslight Such a witness may be asked what
Co., supra. practical experience he has had
227 Citizens' Gaslight, etc., Co. v. with such gases. Citizens' Gaslight,
LEAKS AXD EXPLOSIONS. T61
of gas was perceptible ''° at the point in controversy, but its
extent or amount,''^" the discoloration of the gTound or earth
caused by it,"^^ and also the effect wpon vegetation or grass ;
and in order to show the effect, the state of the vegetation before
the leak occurred, during the time the gas was flowing, and
after it ceased to flow may be shown. '^" Thus proof of the
decay of vegetation, its death, together with the leakage of a
large amount of gas after the gas main was laid and until it
was recalked, the healthy growth of the vegetation after such
recalking, will support the conclusion of the jury that the
escape of the gas was the cause of the injury to the vegetation. "^^
§663. What acts of negligence a question for the jury.
It is impossible to lay down any general rule with reference
to what acts or admissions shall be determined by the court
and what by the jury as instances fixing a liability upon those
guilty of them. In instances of leaks and explosions the gen-
eral rules of negligence apply, the only confusion being that
which arises out of their application to particular instances.
Illustrations have already been given ; and further illustrations
must necessarily be little more than a digest of the cases.
^Vllere premises had been vacant several weeks, of which fact
the gas company had due notice, and had been requested to
cut off the gas supply ; and on the evening of the explosion they
were let to some negroes ; and it appeared that the company
had cut off the gas by the meter cock, but not by the service
cock, which was under the curbstone; that some one had tam-
etc, Co. V. O'Brien, 118 111. 174; 8 232 Siebrecht v. East River Gas
N. E. Rep. 310. Co., 21 N. Y. App. Div. 110; 47
229 Koplan V. Boston Gaslight Co., N. Y. Supp. 262 ; Butcher v. Provi-
177 Mass. 15; 58 N. E. Rep. 183. dence Gas Co., 12 R. I. 149; 34 Am
230 Emerson v. Lowell Gaslight Rep. 626; 18 Alb. L. Jr. 372
Co., 3 Allen 410. -^^ Evans v. Keystone Gas Co ,
231 Consumers' Gas Trust Co. v. 148 X. Y. 112; 42 N. E. Rep. 513,
Perrego, 144 Ind. 350; 43 X. E. 28 Chic. Leg. Xews. 160; 30 L R.
Rep. 306; 32 L. R. A. 146; Bloom- A. 651; 51 Am. St. Rep. 681; affirm*
field, etc.. Co. v. Calkins, 1 T. and C. ing 21 X. Y. Supp. 191.
(N. Y.) 549.
Y62 OIL AND GAS.
pered with the meter cock and let the gas on, cutting it off
again ; and if the gas had been cut off at the service cock there
Avould have been no explosion, It was held that it was a ques-
tion for the jury whether the gas company was guilty of negli-
gence, or whether the accident happened in consequence of
the negligence of the plaintiff or his tenant. A non-suit was
held to be erroneous."^* Where the explosion was alleged to
have been occasioned bv a o-asfitter called to make a connection,
who, it was claimed, did so without turning off the gas, it was
held to be a question for the jury to decide whether the gas
company was guilty of negligence. The evidence was conflict-
ing."^^ Where the explosion was occasioned by the light of the
workman making a connection ; and the company insisted that
there was not a strong smell of gas, and the workmen were
therefore justified in using the light, it was held to be a question
for the jury whether or not the workmen had been guilty of
negligence. "^^ Where the city officers had removed the earth
supporting the gas company's pipes, in constructing a sewer,
and the gas company requested the court to charge the jury that
it was unreasonable to require it to have an inspector present
to see if the pipes were projDerly supported, and having a right
in the street, it might rely upon the city to notify it of the con-
dition of the pipes; but the court refused, and charged the jury
that it was a question for it to decide whether or not the com-
pany had used due care."^^ Wliere it was alleged that the com-
pany had negligently permitted gas to escape from its street
mains and enter a house where lights were known to be burning,
and the evidence showed that the company's servants requested
that the lights be put out ; but the plaintiff insisted that the gas
234 Chisholm v. Atlanta Gaslight tlie meter. Hacker v. London Gas-
Co.. 57 Ga. 28. light Co., 32 Gas J. 781.
235 Mersey Docks, etc., v. Liver- 236 Ellis v. London Gaslight Co.,
pool, etc., Co., 26 Gas J. 327. The 32 Gas .J. 840.
verdict. was for the plaintiff. ^237 Butcher v. Providence Gas Co.,
The same method of determining 12 R. T. 149; 34 Am. Rep. 626;
the company's negligence was adopt- Chadwick v. Corporation of Wigan,
ed where the explosion was occa- 28 Gas J. 562.
sioned by a failure to keep water in
LEAKS AND EXPLOSIONS. 763
found entrance through an open Avindow nearly level with the
trench from the main, a hole having been made in the main
near the window for a service pipe ; it was held that it was a
question for the jury, even though it thought the gas thus en-
tered, whether the gas j^eople might reasonably nave foreseen
it, were bound to have the window closed."^^ Where the service
pipe did not fit the main, and there was a subsidence of the soil
which carried down the main a year before the accident, which
was known to the company's servants ; and the gas passed
under the ground from the place where the service pipe en-
tered the main, entering the kitchen and exploded, it was held
that there was sufficient evidence to go to the jury.^^® Where
gas escaped from the pij^e's laid twelve years before, of which
the gas company was duly notified ; and it sent servants to ex-
amine the place, who said there was no danger ; and on a second
notification of gas escaping the company sent two men who put
in an escape tube ; and four days later an explosion occurred,
injuring the plaintiff; it was held to be a question for the jury
whether or not the company had exercised due care under the
circumstances.-*" Where it was alleged that the servants of
the gas company causing the explosion were drunk when re-
pairing the leak, and that there was a small explosion previously
from a break in the pipe, which had been improperly repaired ;
it was held that the defendant's care Avas a question for the
jury.-" Where the plaintiff put in a " bent," close to the joint
with the service pipe, and also put in other pipes, all of which
was inspected and approved by the gas company, and the evi-
dence showed they had been carefully put in, and ther€ was no
decisive evidence to show how the " bent " became cracked, but
it was shown that the explosion was caused by a servant of the
company carelessly lighting a match in the cellar into which
the gas had escaped from the leak in the " bent " ; it was held
238 Blenkiron v. Great Central 240 Boothman v. Mayor, etc.. of
Gas, etf., Co., 2 F. and F. 437; 9 Burnley, 20 Gas J. 585. The ver-
Gas J. 292, 776; 3 L. T. R. 317. diet was for the plaintiff.
The verdict was for the defendant. 2*1 Hann v. Weymouth, etc., Co.,
239 Fare v. Bath Gaslight and 18 Gas J. 186.
Coke Co., 25 Gas J. 566.
764 OIL AND GAS.
that the leak in the ph^intiff's pipe was not as a matter of law
evidence of the plaintiff's negligence, but that it was a question
for the jury."*" Where the defendant denied that it luid negli-
gently permitted gas to escape from its pipe, and insisted that
the leak was caused hv the negligence of the citv officers in not
properly packing the earth under a pipe in building a sewer, it
was held to be a question for the jury whether or riot the com-
pany had used due care in seeing that, in restoring the earth
to its place, its pipes were properly supported, and if injured,
to see that the injury was repaired as soon as it could reason-
ably be done."*'* Where it appeared that the explosion was
occasioned by a theft of a gas pipe and the going into the cellar
with a light ; and the evidence was conflicting whether notice
of the leak had been given to the company, the secretary testify-
ing that the complaint book showed that no notice of a leak had
been given; the court charged the jury that it Avas a question for
them whether the accident had been caused by the negligence of
the company."** Where it was claimed that an explosion oc-
curred from the negligence of the meter taker, who had re-
moved a meter and left a pipe open, so that when the plaintiff
turned on the gas it flowed from the pipe and ignited, and
the company insisted that the employee properly stopped the
pipe with white lead, etc., it was held to be a question for the
jury whether he had done so.^*^ "\^^iether applying one's nose
to an opening in a floor wherein a gas pipe was plugged, and
from which the gas escaped, to ascertain if the gas was escaping
is an act that due care requires, there being other well known
tests, w\4s held to be a question for the jury. Where the plain-
tiff lighted a gas radiator, laid down on a couch in the room and
went to sleep ; and while asleep the gas company, in order to
improve the gas pressure, cut off the gas in the building, drew
242 Lannen v. Albany Gaslight 244 Griffiths v. City of London Gas
Co., 46 Barb. 2G4; affirmed 44 N. Co.. 16 Gas J. 139.
Y. 459. 2ip\Vard v. Gaslight and Coke
243 Butcher V. Providence Gas Co., Co.. 14 Gas J. 915; 15 Gas J. 45,
12 Pv. I. 149; 34 Am. Rep. 626; 75; 16 Gas J. 10, 38, 74, 108.
]\ledex V. Gaslight and Coke Co., 15
Gas J. 75.
LEAKS AXD EXPLOSIONS. 765
off the water accumulated in the pipes, and turned on the gas
again, its usual practice being to warn the tenants of buildings
of its intention to obstruct the flow of gas, but the evidence was
conflicting as to what steps the company's servants endeavored to
warn the plaintiff, there being testimony that they knocked on
the door, but not sufficiently lound to arouse the plaintiff ; it was
held that it was a question for the jury whether the company's
employees used such care as was incumbent on them under the
circumstances, but there was no question of contributory negli-
gence."**' Where gas escaped into a cellar from a pipe eleven
feet away resting in soft and shaly soil ; and there was an aban-
doned coal mine under the entire neighborhood ; and after the
explosion the coal was found to be burning; and one witness
testified that the pijDe had broken on account of a sewer excava-
tion, and another that the pipe Avas rotten ; and there was evi-
dence of an earlier trouble at the same point ; it was held that
it was a question for the jury, under the gas company's claim
that the leakage was caused by the mine's caving in on account
of the fire, whether it had been guilty of negligence, and that it
was error to direct a verdict in its favor."*' ^Vllere a company's
piping was not connected with the piping in a building until the
owner or tenant made an application for gas and furnished plans
of the piping in the building, whereupon the company delivered
a meter, letting the applicant make connection with its pipes,
without itself making an examination : and the tenant of a store
room, having received a meter, engaged a plumber to put it in
and make the connection ; and a pipe running into an apartment
above the store was uncapped, from which gas escaped, killing
the tenant's child ; it was held to be a question for the jury
whether the gas company had used reasonable precautions."*^
Where the gas escaped through a break in the street pipe into
the plaintiff's sleeping room, to his injury ; and the evidence
246 Beyer v. Consolidated Gas Co., 248 Schmeer v. Gaslight Co. of
44 N. Y. App. Div. 1.58; 60 X. Y. Syracuse. 147 X. Y. 529; 42 X. E.
Supp. 628. Rep. 202; 30 L. R. A. 653; revers-
247 Heh V. Consolidated Gas Co., ing 65 Hun 378; 26 X. Y. Supp.
201 Pa. St. 443; 50 Atl. Rep. 994; 1128; 20 X. Y. Supp. 168.
88 Am. St. Rep. 819.
766 OIL AND GAS.
showed that the break was probably caused by the settling of
the earth after the construction of a nearby sewer ; and that the
gas had been escaping a Avhole day when discovered by a police-
man ; it was held that there was evidence enough to justify the
submission of the case to the jury."'' Where the bills of the
gas company had a notice on them that information of all leaks
should be sent to the office of the company; that a complaint
of a leak was made to an employee of the company, and he
promised to have it repaired ; that afterwards a man sent to
examine the leak found it in a chandelier, and worked about
twenty minutes in repairing it ; that the gas escaped during
the night, to plaintiff's injury, from the chandelier, in which
the next day was found a leak, which an expert testified could
not be properly stopped without taking down the chandelier and
taking off the casing ; it was held that there was evidence for the
jury from which to determine whether the gas company had
undertaken to find and stop the leak, in which event it would
be liable."^" Where the gas company had no system of inspec-
tion, but waited for complaints before making inspections ; and
some of its pipes had been laid in cinder for twenty years,
which had a tendency to corrode them ; the question of negli-
gence was considered one for the jury."^^ The coincidence of
the decay and death of vegetation with the leakage of a large
amount of gas after the laying of a new main and until its
recalking; and the fact of the healthy growth of vegetation after
the recalking, will sustain a conclusion of the jury that the
escape of the gas was the cause of the injury.^^- A gas com-
pany's street main ran within a few feet of the cellar of a iac-
tory. An explosion occurred in the factory, injuring the
plaintiff. Several months previous to t-.at time a sewer con-
nection for the factory had been made, which ran under the
249Greaney v. Holyoke, etc., Co., Co., 2 Pa. Super. Ct. 179; 39 W. N.
174 Mass. 437; 54 N. E. Rep. "880. C. 28.
250 Ferguson v. Boston Gasliprht ^ 252 Evans v. Keystone Gas Co.,
Co.. 170 Mass. 182; 49 N. E. Rep. 148 N. Y. 112; 42 X. E. Rep. 513;
115. 28 Chic. Leg. News. 160; 30 L. R.
25iPrichard v. Consolidated Gas A. 651; 51 Am. St. Rep. 681; affirm-
ing 21 N. Y. Supp. 161.
LEAKS a:n^d explosions. Ibi
gas main. The testimony of the phiintitf tended to show escap-
ing gas had been detected at the place where the gas main
crossed the sewer connection for several weeks prior to the ex-
plosion, which occurred on the opening of a trap door into the
cellar ; that soon after an old and rusty break in the pipe imme-
diately in front of the factory was discovered, and that the com-
pany had been notified of the presence of gas in the neighbor-
hood more than two weeks before the explosion, but did nothing
in response to it. The gas company denied receiving notice, and
gave testimony in general rebutting the plaintiff's testimony.
The plaintiff claimed that the gas escaped from a break in the
gas main, passed through the sand until it reached the sewer
pipe, followed this into the cellar, and there collected. It was
held that the case was one for the jury."^^ For two weeks prior
to an explosion of gas in a sewer manhole escaping gas had been
detected ; and it was the duty of the employees of the gas com-
pany lighting street lamps to report leaks they had detected.
A leak in a main one hundred feet from the explosion was
found in this main immediately after the explosion occurred,
was repaired, and the gas ceased to flow. About two weeks be-
fore the explosion the company had been notified of escaping
gas ; and upon examination no escape of gas had been found.
It was possible for the escaping gas from the leak to find its
way through the earth, enter sewers, and accumulate in covered
sewer holes. There was no probability of gas escaping from
any other gas main than that of the defendant company. It
was held that there was evidence enough to support a verdict
for the plaintiff, in an action to recover damages occasioned by
the explosion.""* Where the action was to recover for the death
of a horse, occasioned by it inhaling gas, an instruction to the
jury that if the plaintiff '" had reason to believe that the gas
was escaping, and knew the danger of escaping gas, and left the
253 Henderson v. Allegheny Heat- The court charged the jury that
ing Co., 179 Pa. St. 513; 39 W. X. the evidence should exclude all other
C. 485; 36 Atl. Rep. 312. theories than the plaintiff's, tracing
254 Tiehr v. Consolidated Gas Co., the origin of the exploding gas to
51 IST. Y. App. Div. 446; 65 N. Y. the break in the defendant's pipe.
Supp. 10.
768
OIL AND GAS.
horse there without providing for the danger, thinking the es-
cape of gas was not sufficient to do any damage, he cannot re-
cover," was held to have been properly refused ; for as a matter
of law negligence was not an inevitable and necessary inference
from the facts stated, but was a question for the jury."^ Where
the defect in a gas pipe was occasioned by the construction of a
sewer, it was held to be a question for the jury whether or not
the gas company having a proper system of inspection ought to
have known of the leak sooner than it was in fact discovered. ^'^'"'
If there be no evidence to show negligence on the part of the
gas company, then the court must direct the jury to find against
the plaintiff ; and it is error to submit the question of negligence
to the jury.""^^ Where the explosion occurred in the cellar, the
exploding gas having escaped from a break at the junction of
the service pipe with the " riser " ; and the company's work-
men were engaged in repairing the mrfTns opposite the house
in which the explosion occurred, but there was no evidence to
connect them in any way with the explosion, or to show that
their work in any way affected the service pipe, the complaint
was dismissed."^*
255 Lee V. Troy, etc., Co., 98 N.
Y. 115.
If it IS shown that a pipe was
broken and gas escaped from it
w'hereby one is injured, the jury
may infer negligence on the part of
the gas company from the facts
thus shown. Carmody v. Boston
Gaslight Co., 162 Mass. 539; ,39 N.
E. Rep. 184.
256 Koelsch V. Philadelphia Co.,
152 Pa. St. 355; 25 Atl. Rep. 522;
18 L. R. A. 759; 34 Am. St. Rep.
653; Holly v. Boston Gaslight Co.,
8 Gray 123; 69 Am. Dec. 633; Ki-
bele V. Philadelphia, 105 Pa. St. 41
(on the duty of a patrolman to
notify the city of a leak where the
city is furnishing gas to consumers) .
-57 ■ llegheny Heating Co., v. Ro-
han, 118 Pa. St. 223; 11 Atl. Rep.
789.
It was held that the evidence
of an explosion was insufficient to
submit to the jury, Hutchinson v.
Boston Gaslight Co., 122 Mass. 219.
258 Krzywoszynski v. Consolidated
Gas Co., 4 N. Y. App. Div. 161; 38
N. Y. Supp. 929.
CHAPTER XXX.
INJURIES CAUSED BY OIL AND GAS— NEGLIGENCE.
§G64. Scope of chapter.
§665. Fire on railroad communicating with refinery.
§606. Neglect in not providing stop-cock. — Injury to servant.
§667. Injuries from shooting wells.
§668. Oil escaping into sewers.
§669. Injury occasioned by exploding gasoline fire-pot.
§670. Use of false brands. — Explosion.
§671. Negligent care of grounds. — Fire communicating to adjoining
houses.
§672. Oil escaping from an exploding refinery.
§673. Rescuer injured by negligence of an oil or gas company.
§674. Minor's employe's oil-soaked clothes catching fire.
§675. Explosion of benzine used in paint.
§676. Servant of oil company injured by defective appliances.
§677. Injuries to servant of purchaser. — Sale in violation of statute.
§678. Sale of oil of low fire test, explosion. — Deception.
§679. Implied warranty in sale of illuminating oil.
§680. Gas box in sidewalk.
§681. Negligence of contractor.
§682. Streets rendered dangerous by laying gas mains.
§683. Imperfectly constructed gas building.
§684. Exploding tank injuring servant.
§685. Servant entitled to safe place in which to work.
§686. Servant injured by use of defective ladder.
§664. Scope of chapter.
It is not the intention to repeat in this chapter what has been
discussed in other chapters and under heads more appropriate.
Xor can there be any systematic arrangement of the contents of
this chapter — the aim being to gather up such decisions as
pertain to injuries that have been caused by oil or gas, or by
negligent conduct in the operation of gas works or pipe lines,
or in the operation of oil leases. Under the head of Leaks and
769
770 OIL AND GAS.
Explosions will be found a discussion of negligence in connec-
tion therewith.
§665. Fire on railroad communicating with refinery.
A railway company left standing on its switch a car used in
carrying tar. A passing locomotive set fire to it, and the fire
communicated to an oil tank thirty-six feet away, which was a
part of the plaintiff's oil refinery. The fire then communicated
with the refinery and it was destroyed. The company was held
liable, and in passing on the case the court used the following
language: ''While this is perhaps a close case upon its face,
we are of the opinion that the judgment must be affirmed. It
could not have been withdrawn from the jury, nor are we able
to see any error in the manner of its submission. The learned
judge could not have ruled, as a question of law, that the plain-
tiff was guilty of contributory negligence'^n erecting his oil tank
where he did. The sparks from the locomotive were not likely
to set fire to oil in the tank, nor did they do so in this case. The
accident would not probably have occurred, had not the defend-
ant company permitted a car, used for carrying tar, to stand
on the track opposite to, and near, plaintiff's oil tank. This car
caught fire from the sparks of the engine, and was wholly or
partly consumed. It was the fire from this car which ignited
the oil and caused the destruction of plaintiff's works. The
accident could have been avoided by running the car a short
distance away after it had taken fire. This was eminently a
jury case." ^
§666. Neglect in not providing stop-cock. — Injury to servant.
An oil company must provide the usual means to prevent in-
juries in case of an accident, so that the flow of the oil may be
controlled, especially where it is used in connection with fires.
We take the following statement from an Illinois case, where a
1 Confers v. New York, etc., R. E,.
Co., 146 Pa. St. 31; 23 Atl. Rep.
202.
I-NJUKIES CAUSED BY OIL A:XD GAS NEGLIGENCE. ill
company using large quantities of oil was held liable: '"' This
was an action on the case by appellee against appellant, to
recover for personal injury alleged to have been received through
the negligence of appellant. For several years before the acci-
dent, appellant had been engaged in burning brick, and appel-
lee worked as its servant in that business. In 1887, appellant
commenced burning brick with crude oil for fuel, and api^llee,
before his injury, had assisted in burning several kilns of brick
by the new method. In May, 1888, shortly after the kiln was
fired, the injury occurred. The kiln being burned was 70 or
80 feet long and alwut 30 feet wide ; there were 18 or 20 arches
running through from side to side. Around the kiln, a little
way from it, near the ground, two pipes were laid side by side,
each about two inches in diameter. One of these pij^es carried
steam, and the other oil for fuel. Opposite the end of each
arch, two short pipes, three-fourths of an inch in diameter, ex-
tended towards the arch, one connected with the oil pipe, and
the other the steam pipe. The short pipe was about two feet
and a half long; the small oil pipe perhaps a foot long. On the
end of the steam pipe, at each arch, was placed what was known
as the " burner." In the small oil pipes there was a check valve
or stop-cock, near the main oil pii:)e, and the connection was made
between this pipe and the burner by a rubber tube connecting
the short pipe with the burner. The purpose for which the
rubber was used was to permit expansion and contraction of the
small steam pipe ; in other w^ords, so as to make the pipe con-
taining the oil flexible. The burner was by this means ex-
tended, not into, but as near, the arch as possible, and the oil
injected into the arch by the action of the steam through the
burner. On a side track, 20 feet or more away from the kiln,
common railroad oil tanks were run on their trucks, and the oil
carried therefrom by means of a two-inch pipe, and emptied into
the oil pipe surrounding the kiln. Prior to the time of the acci-
dent, but one tank had been used at a time, and the supply pipe
from the tank was fitted with a check valve near its entrance
into the feed pipe, or the pipe encircling the kiln. Each of the
small pipes extending from the steam and feed pipes were sup-
772 OIL AND GAS.
plied with a stop-cock near the feed pipe, so that both steam and
oil could be shut off from tiny individual burner. There was
also a check valve on the tank, by closing which the flow of oil
from the tank could be shut off. This valve was so arranged
that it could not be turned by hand, but necessarily required
the use of a wrench or tongs. In the afternoon before the acci-
dent, the kiln being in condition to fire, Williams, the kiln fore-
man, was ordered by appellant, through its superintendent, to
cut the feed pipe in the middle of the kiln on each side and stop
the ends, which was done. Prior to this, there had been in use
what was known as the Brown burner. They were directed to
attach the Brown burner to one-half of the feed pipe, or the pipe
encircling one-half of the kiln, which appellee and the gang of
men with him, under the direction of the steamfitter of appel-
lant, did. By the cutting of the oil pipe, the circulation of oil
around the kiln was impossible, and, toisupply the other end,
another tank was run upon the side track, and attached, by a
new supply pipe, with the other half of the feed pipe, so as to
furnish oil to run the other burners to be thereto attached. The
purpose was to test the relative merits of the Brown burner,
and another called the Cannon burner, to see which would con-
sume the greater amount of oil in producing the requisite con-
tinued heat. The attachment between the additional tank and
the pipe surrounding the half of the kiln at which the Cannon
burners were to be tested, including putting on the burners,
was made by ' Mr. Cannon and his men,' possibly assisted by
Mr. Williams, kiln foreman, and perhaps other fellow Avorkmen
about the kiln. Cannon had been a gasfitter, was familiar Avith
the work, but neither he nor the men under him were in the em-
ploy of appellant. In making connection between the tank and
the feed pipe encircling the half of the kiln at which the Cannon
burners were put, no stop-cock or valve was put in where the
supply pipe from the tank joined the feed pipe, so that the oil
running to the Cannon burners could be shut off only at two
points — at the tank, and at the^mall stop-cocks where the small
burner pipes joined the feed pipe. At the other end, the supply
pipe formerly in use was put in, which was supplied with the
INJURIES CAUSED BY OIL AND GAS NEGLIGENCE. 773
check valve near the feed pipe. This arrangement of the pipe
to which the Cannon burners were attached was made by Can-
non, and, as before said, possibly with the knowledge of the
foreman ; bnt appellee, not the gang of men with whom he
worked, had no notice that the sto}>cock at the joining of the
supply and feed pipes had been omitted. The rubber pipe lead-
ing to the burner, from the heat and action of the oil, was soon
destroyed, and would break or crack off, permitting the oil to
escape, and the oil, being highly inflammable, would catch fire
from the heat of the arch, and prevent the close of the small
check valve in the pipe leading to the burner ; and in such case
the stop-cock at the junction of the supply and feed pipes had
always been used, and, by shutting off the oil there, a conflagra-
tion was prevented. This condition of things was known to
appellant, and it had supplied rubber tubing in considerable
quantities to take the place of such as might be destroyed in
that way. It is shown that the breaking of the rubber and
escape of the oil was frequent, the rubber lasting sometimes
during the burning of a kiln and sometimes not. The kiln was
fired in the evening. Appellee and the gang of men under him
were in charge of the end of the kiln to which the oil or Bro-^vn
burners were fixed, and Williams and another shift of men in
charge of the other end, until about 12 o'clock midnight, when
Williams and his gang retired, and appellee and two helpers
took charge of the entire kiln. About 4 o'clock in the morning
appellee was on a ladder at the side of the kiln, observing the
top, when a rubber hose, connecting with one of the Cannon
burners burst, and the oil immediately took fire, and, extending,
so covered the small stop-cock that it was impossible to close it.
He ran immediately to the place where the supply pipe joined
the feed pipe, expecting to find the stop-cock, where it had al-
ways previously been found, but found none. He called to the
other employees, and went himself about 200 feet, and turned
in the fire alarm, and immediately returned to the end of the
kiln where the fire was spreading. The fire was spreading
rapidly, was very hot, and, fearing an explosion of the oil in the
tank, appellee determined to disconnect the tank from the sup-
774 OIL AND GAS.
ply pipe, and get it away from the fire. For this purpose he
directed one of the men. to shut off the tank ; that is, to close the
valve between the tank and the supply pipe. One of the men
went on to the tank for that purpose, and again got off. Ap-
pellee inquired if the valverhad been closed, and one of the men
replied that it had. He again inquired, and, upon being as-
sured that it had been closed, he went under the tank, discon-
nected the feed pipe from the tank, when the oil from the tank
flowed over him, and saturated his clothing, which instantly
caught fire from the burning oil spreading from the feed pipe.
Appellee was seriously injured. It appears that the man who
went upon the tank to close the valve endeavored to do so with
his hands. Finding that impossible, he ran to get a wrench;
but upon his return the fiames were sweeping over the tank, and
drove him away. The negligence charged in the declaration,
in the first count, was the neglect of appellant to furnish proper
and safe connections between the tank and the brick kiln, and
that appellant negligently and improperly provided and used
a connection made of rubber, which w^as unsuitable and im-
proper for such purposes ; that the rubber became heated and
cracked and broke, permitted the oil to escape, which took fire,
etc. The second count alleged the use of crude oil Avas dan-
gerous and hazardous ; that plaintiff was in appellant's employ
as assistant to the foreman, and his employment necessarily
brought him near to the tanks, kilns, etc., and it became and
was. the duty of appellant to exercise a high degree of care and
diligence in providing proper and safe appliances around the
brick kiln and oil tank, and proper connections, etc., and also
to provide a safety check, or some suitable device, to stop the
flow of oil in case of accident, etc., so as to insure the safety of
its employees ; yet appellant did not do so, but carelessly, negli-
gently, and improperly provided a connection made of rubber,
which, on becoming heated, vulcanized and broke, and the oil
thereby escaped, and, not having provided suitable and proper
appliances by which the flow of the oil could be checked, the
i;X JURIES CAUSED BY OIL AND GAS NEGLIGENCE. 775
flames from the kiln communicated with the oil, resulting,
etc." =^
§667. Injuries from shooting wells.
Under proper circumstances and at proper times it is not
unlawful to shoot a well so as to increase the flow of gas or oil ;
but to shoot a well in a densely settled community, as in a city,
is so dangerous an undertaking that a court of equity will enjoin
it.^ A well may be shot so carelessly or at so improper a time
as to render those shooting it liable for damages incurred by the
act of shooting it. Thus where a company engaged in the busi-
ness of shooting wells Avith powerful explosives, was employed
to shoot a well in a village, and its practice was to carefully
lower the explosive to the bottom of the well, and then explode
it by dropping into the well a weight called a " go-devil " ;
and the shooting company claimed that its agent instructed the
owner of the well not to drop the " go-devil " until morning ar-
rived, and that he disobeyed the instruction and let it drop at
7:30 in the evening; and it appeared because of the season (it
was September) fires and lights were burning when the well was
shot ; and it was well known that when a well was shot large
quantities of gas would escape from the well and settle close
to the earth under certain conditions of the atmosphere, and
explode if it came in contact with fire ; and it was shown that
an engine near the well had a fire in it ; and when the well was
shot gas escaped, exploded and injured a boy permanently, the
shooting company was held liable, and could not shift the lia-
bility upon the owner of the well ; for it was hired to shoot the
well, and the owner in dropping the " go-devil " was simply act-
ing for and in their place and stead.* In this case it was held
proper to ask a witness, who knew the prevailing custom of well
shooters, if 100 quarts of nitroglycerine were lowered into a
2 Pullman Palace Car Co. v. R. A. 443 ; Hill v. Schneider, 43 N".
Laack. 143 111. 242; 32 X. E. Rep. Y. Siipp. 1; 13 N. Y. App. Div.
285; 18 L. R. A. 21.5. 299; 4 X. Y. Ann. Cas. 70.
3 People's Gas Co. v. Tyner, 131 * Ohio, etc., Co. v. Fishburn, 61
ind. 277; 31 X. E. Rep. 59; 16 L. Ohio St. 608; 56 X. E. Rep. 457.
776 OIL AND GAS.
well, the well " logged " on, the derrick boarded up except an
opening facing the engine and belt house, the well situated 80
to 200 feet from residences surrounding it, the village contain-
ing 1,200 inhabitants, and the condition of the atmosphere was
such that when the gas was liberated it would settle near the
earth — if it would be a proper time to shoot the well at 7 :30 in
the evening of September 7, when darkness had intervened and
fires and lights were lit in residences and business houses. It
was said that the fact called for was not an ultimate fact in
issue, was not a subject of common knowledge, nor one that the
jury could as well judge as the witness. As the expert knew
all the dangers incident to the explosion, at the place and hour
and in the surroundings, it was considered that his opinion
would aid the jury in drawing a conclusion, better than they
could draw from the facts proven.
K
§668. Oil escaping into sewers.
It is the duty of an oil company to keep its oil on its own
premises, and if it permit it to escape, and thereby another is
injured, it will be liable. The liability does not seem to rise
out of any negligent act ; but out of a duty of the company to
keep on its own premises an agency that may work an injury to
another, or at least in all likelihood will do so. Thus where
petroleum escaped from an oil tank, percolated through the soil
to a sewer in which gases formed from the oil, and found their
way into a bakery and so contaminated the air as to injure the
products manufactured by the baker, it was held that the com-
pany permitting the oil to escape was liable. The fact of the
sewer conveying the gases to the bakery, and that they would
not have reached the bakery but for it, was considered not to
make the negligence of the owner of the oil remote, for the reason
that the sewer was a condition rather than a cause, not an inde-
pendent cause of the injury making it the proximate cause.'^ If,
R Brady v. Detroit, etc., Co.. 102
Mich. 277; 60 N. W. Rep. 687; 26
L. R. A. 175.
INJURIES CAUSED BY OIL AXD GAS NEGLIGENCE. 7ii
however, the escape of the oil is unavoidable, then the oil com-
pany will not be liable for its escape and the injury it inflicts.
Thus where oil was properly stored, but a fire broke out on the
premises without the neglect of the company, and the oil es-
caped to adjoining premises, from which it was drained by a
ditch dug pursuant to the orders of the fire chief of the city
into a sewer, no person or officer of the oil cCmpany giving any
direction concerning the digging of the ditch or as to the turn-
ing of the oil into it ; and the petroleum generated gases in the
sewer, which exploded, resulting in a death, it Avas held that the
oil company was not, but the city was, liable.''
§669. Injury occasioned by exploding gasoline fire-pot.
A tinner was employed to put on a part of a building a tin
roof, while upon the remaining part a shingle roof was being
put on, by another contractor. In doing so he used a gasoline
fire-pot to heat his soldering iron. The wind was blowing, and
to prevent it blowing the fire the tinner's servant set up some
shingles on both sides of the fire-pot ; but they catching afire, he
set up some tin. The tin so reflected the heat of the fire as to
raise the temperature of the gasoline in the tank of the fire-pot
that it exploded, and injured a servant of the person putting
on the shingle roof. The tinner's servant knew that gasoline
would explode when heated sufficiently. It was held that the
tinner was liable to the servant of the contractor putting on the
shingle roof.'
6 Fuchs V. St. Louis, 133 Mo. not liable, although he had made
168; 31 S. W. Rep. 115; 34 S. W. no test of the cylinders except that
Rep. 508; 34 L. R. A. 118. when they were filled they were sub-
The owner of dangerous oil must ject to a test much greater than
keep it under control. Langabough continued afterwards, there being
V. Anderson, 22 Ohio Cir. Ct. Rep. no general usage or custom as to
178; 12 Ohio C. D. 341. testing them. Kilbridge v. Carbon.
7 Evans v. Hoggatt, 9 Kan. App. etc.. Co.. 201 Pa. .552; 51 Atl. Rep.
540; 50 Pac. Rep. 381. .347.
When a cylinder charged with A dealer in building materials is
carbon dioxide very unexpectedly not liable for damages occasioned
exploded; and such explosion was by a fire originating from some im-
verv unusual, the owner w;is lield known cause in the basement of his
778 OIL AND GAS.
§670. Use of false brands. — Explosion.
If oil be falsely branded, to render the oil company liable
for damages occasioned by it exploding, the deception must in
some way have led to or be connected with the injury. Thus
where 74 degrees gasoline was marked " puroline," and both
oils were manufactured from petroleum, and both as the evi-
dence showed, were equally dangerous, the deception was held
not to be such as to render the oil company liable for an explo-
sion, which would have occurred even if that grade of gasoline
had actually been furnished.*
§671. Negligent care of grounds. — Fire communicating to ad-
. joining houses.
An oil company must keep its premises in such a condition
that it will not be liable to lightly or *^asily catch fire, and
thereby endanger properties near it. Thus where an oil com-
pany permitted its buildings and grounds to become soaked with
oil, and also alloAved a large number of " jackets " used on oil
cans and barrels to accumulate on the premises, so that a passing
locomotive easily set them on fire, and the fire reached adjoin-
ing buildings and destroyed them, the oil company was held lia-
ble, for the reason that if it had kept its premises and buildings
in a proper condition the fire would not have been started, and
if started could have been controlled. In this case the plain-
tiff's buildings that were burned had been built after he knew
of the condition of the oil company's premises and buildings ;
but this was held to make no difference.® Xor would it have
made any difference if the plaintiff had previously sold the
grounds to the company to use in their oil business. ^° In such
store where he kept oils, paints, var- a lighted lantern to aid them in
nishes and cotton. Cook v. Ander- seeing how to work,
son, 85 Ala. 99; 4 So. Rep. 713. » Waters-Pierce Oil Co. v. King,
8 Socala V. Chess Carley Co., 39 Q Tex. Civ. App. 93 ; 24 S. W. Rep.
La. Ann. 344; 1 So. Rep. 824. In "'700.
this case the servants of the plain- io,Judson v. Giant Powder Co.,
tiff were guilty of negligence in 107 Cal. .549; 40 Pac. Rep. 1020;
drawing the oil at night and using 29 L. R. A. 718.
INJURIES CAUSED BY OIL AND GAS NEGLIGENCE. Y79
an instance, the general practice and custom of oil companies is
admissible to rebut the charge of negligence, but evidence of
the practice and custom of a particular company is not/^
§672. Oil escaping- from an exploding refinery.
Where oil escaped from a refinery because of an explosion,
and flowed do^vn a pipe line to a lighter in a harbor, used for
the conveyance of oil, set it on fire, causing it also to explode,
and by reason of it exploding a vessel moored in the harbor was
set on fire, the refining company was held not liable for the
loss of the vessel ; for the reason that it was not shown that the
refinery company was negligent in the oj>eration of its works
nor the explosion caused by negligence. The mere fact of the
explosion was held not to show negligence, for the reason '' That
there is a general disposition among men to preserve their prop-
erty and escape liability, and ordinarily their motives will se-
cure that degree of care and caution which the safety of the
public demands ; hence the presumption of duty performed
which in cases of fire will protect him until the facts be proven
from which negligence can be inferred." ^" But this rule has
not always been accepted, some of the courts holding that the
fact of an explosion raises a presumption of negligence. ^^ Where
oil escaped from a refinery and reached water in a harbor ; and
it was set on fire by a person throwing a lighted match into
the water, and the fire burned a boat, the refinery company was
held not liable, the escape not being the proximate cause of the
loss."
11 standard Oil Co. v. Swan, 89 12 Cosulich v. Standard Oil Co.,
Tenn. 434; 14 S. W. Rep. 928; 15 122 N. Y. 118; 25 N. E. Rep. 259.
S. W. Rep. 1068; 10 L. R. A. 366. "Warn v. Davis Oil Co., 61 Fed.
Employee in restaurant throwing Rep. 631; Judson v. Giant Powder
out flaming gasoline lamp that ex- Co., 10" Cal. 549; 40 Pac. Rep.
ploded, burning the plaintiff. See 1020; 29 L. R. A. 718.
Donahue v. Kelly, 181 Pa. St. 93; i^Xeal v. Atlantic Refining Co.,
37 Ati. Rep. 186; 59 Am. St. Rep. 4 Pa. Dist. Rep. 49.
632.
780 OIL AND GAS.
§673. Rescuer injured by negligence of an oil or gas company.
To render an oil or gas company liable to one who has been
injured in attempting to rescue one imperilled by a fire or an ex-
plosion, the company must have been guiUy of negligence in
some way tliat imperilled the person whom the injured person
attempted to rescue. In such an instance the oil company nnist
have been guilty of negligence toward the person who was in
danger, or to the rescuer, in order to hold it liable.^" But where
a city dug a trench in the street, in which gases accumuhitcd to
such an extent that the workingmen abandoned it, leaving it
open several days ; and there was such an arrangement of tim-
bers leading down into it as amounted practically to a ladder,
down which a lx)y descended to secure his ball that had fallen
into the ditch, the place where he descended being near a school
playground in a populous part of the city, when he was overcome
with the gas; and his playmate, seeing l^ni fall back into the
ditch as he was coming out, went to his rescue, not knowing of,
the gas, and lost his life in endeavoring to save his comrade, it
was held that the city was liable for the death of the latter,
being bound for the consequences of its neglect, though such con-
sequences were not and could not by any ordinary prudence have
been anticipated. The acts of the boy who went to the rescue of
his playmate, it was held, must be considered in view of the
circumstances that he had no time to think, but must act at once,
and that others had gone into the ditch before and returned
safely, and also that his playmate whom he went to rescue re-
turned after recovering from the effects of the gas, and above all
that he went to the rescue of a human being in great and im-
minent danger. Consequently he was not chargeable with er-
rors of judgment resulting from the excitement of the moment.^®
15 Jackson v. Standard Oil Co., R. A. 715. For analogous cases,
98 Ga. 749; 26 S. E. Rep. 60; Don- see Maryland Steel Co. v. Moorney,
ahue V. Wabash, etc., Co., 83 Mo. 88 Md. 482; 42 All. Rep. 60; 42
ij60; Pennsylvania Co. v. Langen- L. R. A. 842; Peyton v. Texas &
dorf, 48 Ohio St. 316; 28 K E. Rep. J>acific Ry., 41 La. Ann. 801; 6
172; 13 L. R. A. 190. So. Rep. 690; Gibney v. State, 137
16 Corbin v. Philadelphia. 195 Pa. X. Y. 1; 33 X. E. Rep. 142; 19 L.
St. 461; 45 All. Rep. 1070; 49 L. R. A. 365.
IKJCmES CAUSED BV OIL AN'B OAS - NEOUOENCE. 7S1
§674. Minor employee's oil-soaked clothes catching iire.
A tov was .vovking for an oil company, and his clothing be-
oat s;aked with oil. It was a cold day and beconnng
chilled he was directed by the superintendent m charge of the
,,,,ee to go to an npper room of the building the company was
,sing anS warm himself at the stove in ,he room He ..s no.
war,ted that his clothing was liable to take fire >f he go c osc
,0 the stove. He went np into the room and approached ch>se
to the stove, which was .pute bot, when his clothing took hre
He tried to escape from the room, but the door having become
fastened bv reason of the lock being defective, he jumped out
of a., upper window and received injuries from winch he died.
The oil cou,pauv was held liable, because it was the supenn-
tendenfs duty to warn the hoy of the danger of getting close
to the stove when his clothes were in their ml soaked condi-
^675. Explosion of benzine used in paint.
A master painter sent his servant to paint the inside of a
water tank, which was ten feet in diameter and twelve feet
deep He furnished the servant paint that had been m common
use twelve vears; and the n.astor did n..t know the pamt was
dangerous. ^ It was supposed that the paint contained a certam
amount of benzine; and when the cans were opened and the
paint applied to the sides of the tank it threw off some gas
'vhich, comina- in contact with a light necessarily used caused
an explosion and injured the servant. The master was held no
liable on the ground that he had provided such material and
implements as were ordinarily used by persons in the same
business, and he was required to do nothing more. He was
not required to secure the best known material, or subject tlie
material he used to a chemical analysis in order to discover a
possible or remote hazard incurred by their use.*'
n Wallace v. Standard Oil Co., McCovnnck. 118 Pa. St. 519; 12
66 Fed. Rep. 260 All. Rep. 273.
IS Allison Manufacturing Co. v.
782 OIL AND GAS,
§676. Servant of oil company injured by defective appliances.
Where a servant of an oil company was injured by a defective
still in the refinery, the refining company was held liable. In
this case the still was built by an independent contractor ac-
cording to the plans of the president of the company, and by him
placed in the refinery of the company. " If I employ a well
known and reputable machinist," said the court, " to con-
struct a steam engine and it blows up from bad materials or
unskilled work, I am not resjwnsible for any injury which may
result, whether to my servant or to a third person. The rule is
different if the machine is made according to my own plan, or
if I interfere and give directions as to the manner of construc-
tion. The machinist then becomes my servant, and respondent
superior is the rule." ^^ A servant descended with a light into
an oil still to repair it, and gas exploding, he was killed. His
employer was a distiller of crude petroleun*!^. and used the tank
for that purpose. In the distilling of the oil large quantities
of gas were generated, wdiich escaped into a running room when
the stills were in operation ; but when the stills were empty,
some of the gas which escaped from the pipes into the running
room found its way back into the stills, because no stop-cocks
had been put in the pipes to shut it off. It was necessary for
the employee to have the light when he went into the still to
repair it. The oil refining company was held liable on the
ground that it had not furnished safe appliances and a safe
place in which to work.^" A refinery employed a servant to
manufacture varnish, in which naphtha was used, by a process
known only to himself. He was injured by an explosion. He
claimed that the company Avas liable because the appliances
and structure for the manufacture of the varnish were defective,
that the place where he worked was unsafe, because near a
furnace, to the fire of which the fumes or gas of the naphtha
19 Ardesco Oil Co. v. Gilson, 63 tion of the appliances could be
Pa. St. 146. shown by a conversation which an-
20 Nicholas v. Brush, 53 Hun 137; ofher and former employee had with
6 N. Y. Supp. 601. In this case it the superintendent of the refinery,
was held that the defective condi-
INJUKIES CxiUSED BY OIL A^"D GAS NEGLIGENCE. T83
could reach, as it did when he was injured, of which defects the
company had notice. It appeared that the servant had designed
the appliances, and there were doors which could be closed so
the gases from the naphtha could not reach the furnace fire,
which was in an adjoining room. The servant had full charge
of the work, was skilled in his art; while the defendant had
been ownier of the plant only a week. The servant had been
in the service of the former owner of the plant many months.
The defendant was held not liable."^ So where a servant, who
had been at the same work over a year, went into a still with a
light, knowing the danger of an explosion of the gas by reason of
its coming in contact with the lighted candle he was carrying,
and w^as injured by an explosion, it was held that the employer
was not liable.^"
§677. Injuries to servant of purchaser. — Sale in violation of
statute.
It is the duty of a vendor of a dangerous article to give notice
of its dangerous qualities to the joerson to whom he sells it; and
if he do not, and an injury to such person is occasioned by it,
which is the natural and probable consequence of the vendor's
neglect, such vendor is liable. And if the sale has been made
by an agent of the vendor, and such agent is ignorant of the
dangerous character of the article, and sells it to -a purchaser
without warning, the vendor will still be liable. The pur-
chaser's servant has the same right to recover, in case he is in-
jured, as the purchaser possesses. Thus where the agent of a
company sold 110 gallons of naphtha of the grade of 87 degrees,
the most dangerous naphtha manufactured and sold, to a laur.-
dryman, and assisted him in storing it in a shed on the rear of
the laundry premises, about thirty feet from where the furnace
of the laundry was situated; and twice a day they drew ten
gallons and took it into the laundry to heat the ironing ma-
2iHauk V. Standard Oil Co., 38 22 Benfield v. Vacuum Oil Co., 75
N. Y. App. Div. 621 ; 56 N. Y. Supp. Hun 209; 27 N. Y. Supp. 16.
273.
784 oil. AND GAS.
chinery; and it was the duty of a boy and a foreman to remove
the gasoline from the place of storage for use ; and when they
were doing this on a Jnly day gas escaped from the storage
tank, penetrated the atmosphere, entered the open door and win-
dow of the laundry building, came in contact with the furnace
fire, exploded, and so injured the boy that lie died, the oil com-
pany was held liable. Xo one knew of the dangerous qualities
of the gasoline except the company, even its agent being ig-
norant of them, who innocently represented that there was no
danger in storing the gasoline where it was put, upon which
statements the purchaser relied. The court considered that the
local agent had a right to make the representations he made, they
coming within his apparent authority, and they were binding
u]X)n it, although authority to make them was not given him.
The court refused to allow the oil company to show by a general
agent that it was not the custom to make an^y'epresentations con-
cerning storage and the use of gasoline, in view of the fact that
representations were actually made and the purchaser was not
aware of the custom ; and also in view of the fact that the law
required a vendor of a dangerous article to notify the vendee
of its dangerous qualities. The court also held that the proxi-
mate cause of the injury was the failure to give the purchaser
notice of the dangerous qualities of 87 degree gasoline and the
employment of an agent ignorant of such qualities. The court
did not consider that the negligence of the company was re-
mote by reason of the fact that the heat from the laundry may
have generated the gas, because the oil was stored where the
local agent of the company directed it to be placed, and also
because the laundryman was induced to purchase it by reason
of the representations of the local agent that it was safe, that
he knew the use to which it was to be put, and the oil company
must have known how it was to be used, for they shipped it
directly to the purchaser. ^^ Where a statute provided that " no
gasoline shall be sold, given away or delivered to any person
23 Waters-Pierce Oil Co. v. Davis,
24 Tex. Civ. App. 508; 60 S. W.
Rep. 453.
IXJUEIES CAUSED BY OIL AXD GAS NEGLIGElSrCE. 785
in this State until the package, cask, barrel or vessel contain-
ing the same has been marked gasoline " ; and a dealer sold
gasoline in jug without marking it; and the minor child of
the purchaser was injured by it, it was held that the vendor was
liable. The court considered that the statute was for the pro-
tection of all }>ersons in the State, the label or mark being re-
quired to warn them of the substance they were handling, so
that the failure of the vendor to properly mark the package or
cask was negligence per se. In this instance the girl, having
no knowledge that the oil was gasoline, put a small quantity of
it in the stove to light the fire, and on lighting it, it exploded,
setting fire to her clothes. The father and the purchaser knew
the jug contained gasoline, but did not tell her of it. His neg-
ligence was held not to be imputable to her."*
§678. Sale of oil of low fire test, explosion. — Deception.
A sale of oil of low fire test for illuminating purposes may
render both the salesman and the manufacturer liable, in case
of an explosion producing an injury ; and so far as the manu-
facturer is concerned, it matters not how many dealers' hands
through which it passes. "A manufacturer of oil," said the court
in one case, who sells it as bearing a high and safe fire test,
" when in fact he knows that its fire test will not exceed 64 to
65 degrees Fahrenheit, and that this is a most explosive and
unsafe oil for domestic use, can plead nothing in a defense of
this willful, terrible wrong to a confiding community. He bears
with him a heart regardless of social duty, evidencing malice
in a legal sense in a high degree." "^ So where a manufacturer
knowingly sold to a retail dealer naphtha oil for illuminating
oil, and the retail dealer sold some of it to a consumer, and an
explosion occurred w^hen the consumer attempted to use it in a
lamp, the manufacturer was held liable, the consumer not know-
ing the kind of oil it actually was."® Ignorance of the law re-
24 Ives V. Wilden, 114 Iowa. 476; 25 Elkins v. McKean 79 Pa. St.
S7 X. W. Rep. 408: 54 L. E. A. 493.
854. 26 Wellington v. Downer Kerosene
Co., 104 Mass. 64.
780 OIL AND GAS.
quiring a test or whether the oil is below the test will not excuse
the vendor."' The illegal intent will he presumed; and any-
thing in rebuttal thereof is a proper matter for the defense.^*
§679. Implied warranty in sale of illuminating oil.
In the sale of illuminating oil there is an implied warranty
that it is fit for the purpose sold, and that it is not below the
test required by law, where a statute requires a test to be made
and fixes the standard. In a ease of a sale of oil that was not
up to the test required, and it exploded, causing the death of a
person, it was held that not only the immediate salesman was
liable, but also the refiner wdio put it on the market.'^ Where
an oil dealer sold a grocer naphtha for kerosene, and the latter
sold it to a consumer, who knowing not the contrary, in using it
was injured by it exploding, it was held that the dealer was
liable to the person injured. ^^ A specifi^tion in a contract
by the manufacturer of refined petroleum for its sale, to the
effect that it shall be of a certain brand, color, and fire test, does
not exclude an implied warranty that it shall be free from latent
defects arising from the process of manufacture which would
render it unmerchantable.^^ A provision in such a contract that
the acceptance of the petroleum by the buyers' inspectors shall
be an acknowledgment that the goods are in accordance with
the contract; and a. certificate by the inspector to that effect, do
not relieve the manufacturer from liability on an implied war-
ranty that the petroleum is free from latent defects arising
from the process of manufacture, which renders it unmerchant-
able.^" Evidence that the defendant knew from the manner in
27 Downing v. State, 66 Ga. 160; so Wellington v. Downer Kero-
Horrigan v. Nowell, 110 Mass. 470. sene Co., 104 Mass. 64.
28 Ihid. A statute prohibiting the 3i Carleton v. Lombard, etc., Co.,
sale of naphtha does not prohibit 149 N. Y. 137; 43 N. E. 422; re-
the generation of gas from naphtha hearing denied 149 N. Y. 35;
by a stationary gas machine. An- 44 N. E. Rep. 183.
derson v. Savannah. 69 Ga. 472. ,» •82 Carleton v. Lombard, etc., Co.,
2a Elkins v. McKean, 79 Pa. St. supra.
493; Hourigan v. Nowell, 110 Mass.
470.
INJURIES CAUSED BY OIL AXD GAS ^^EGLIGENCE. 78T
which it was packed and from other sources the place to which
it was to be sent by the plaintiff, who purchased the oil from
him, was held admissible, in an action for breach of an implied
warranty that it was free from latent defects which would render
it unmerchantable."" Where a statute provided that if any
inspector or deputy falsely branded or marked any barrel, or
was guilty of any fraud or culpable negligence, in the discharge
of his official duties, he should be liable to the party injured
for all damages resulting therefrom, it was held that inten-
tional wi-ong or culpable negligence was essential to render
such inspector or his deputy civilly liable, and that there must
be a casual connection between the false branding to render
him liable for the injury and damages of which complaint is
made.^*
§680. Gas box in sidewalk.
A company empowered to manufacture, make and sell illu-
minating gas for a city or its streets, and any buildings, manu-
factories or houses therein, and to lay pipes in the streets for
the purpose, is liable for an injury occasioned by a gas box in
the sidewalk which furnishes access to a cock in the service
\-)ipe conducting the gas from the main to the house; for it is
a part of the apparatus of the company over which it is bound
to exercise proper care to prevent an injury to persons on the
sidewalk.^''
§681. Negligence of contractor.
A gas company had the proper authority to lay its gas mains
in the streets of a municipality, and contracted with one C. to
33 Carleton v. Lombard, etc., Co., branded would not render the in-
siipra. spector liable, if the injury resulted
34 Hatcher v. Dunn, 102 Iowa 411; from some other cause, such as the
71 N. W. Rep. 343 {affirming on use of a defective and an unsafe
rehearing 66 N. W. Rep. 905) ; 36 lamp.
L. R. A. 689. In this case it was 35 Washington Gaslight Co. v.
also held that liability of the in- District of Columbia, 161 U. S. 316;
spector and his sureties were purely 16 Sup. Ct. Rep. 564; affirming 20
statutory. It was also held that D. C. 39; Loan v. Boston, 106 Mass.
the fact that the oil was falsely 450.
788 OIL AND GAS,
lay tlicm. The contractor failed to properly refill the trench,
and a horse fell into it and was injnred. It was held that the
owner of the horse could maintain his action against the gas
company, on the ground that it was obliged to restore the streets
to a safe condition ; and that they could not escape liability by
show^ing that they contracted with others to perform their duty
for them.'"' And if a contractor building a sewer for the city
injure the gas company's pipes, he will be liable to the com-
pany."^ A contractor was to dig a trench in the street for a
gas company under the supervision of the company's engineer.
By a subcontract he passed the work to one Doris, who proceeded
to dig the trench into which the plaintiff fell and broke his leg.
Doris employed and supervised the hands who did the work, and
the original contractor had no control over them. It was held
that the original contractor was not liable. ^^
§682. Streets rendered dangerous by laying gas mains.
A gas company is liable to any one injured by reason of its
having torn up the streets of a city or town and not having
taken sufficient precautions to protect the traveling public, the
same as an individual ; and it is no excuse that it has torn them
up with the permission of the public authorities.^^ After the
gas company has restored the streets to their former conditions
as nearly as possible, it is not bound to keep them in repair
thereafter.*" A township in Pennsylvania is not liable for an
explosion of gas in the highway escaping from a gas pipe,
30 McCamus v. Citizens' Gaslight v. Manchester. 2 H. and N. 204; 26
Co., 40 Barb. 380; Lebanon Light, L. J. Exch. 132. 406; 3 Jur. (N. S.)
etc., Co. V. Leap, 139 Ind. 443; 39 590; 5 W. R. 598; Hornby v. Liver-
N. E. Rep. 57; 29 L. R. A. 342; pool, etc.. Gas Co., 47 J. P. 231;
Ellis V. Sheffield Gas. etc.. Co., 2 Whallen v. Citizens' Gaslight Co.,
Ell. and B. 757; 18 Jur. 146. 63 N. Y. Rep. 317; 30 N. Y. Supp.
37 Tn re Houghton, 20 Hun 395 ; 1077 ; Pine Bluff, etc.. Co. v. Derreu-
Croft. etc., Gas Co. v. Pryor, 31 isseaux, 56 Ark. 132; 19 S. W. Rep.
Gas J. 386. 428.
38Wray v. Evans. 80 Pa. St. 102. 4o Grundy v. Janesville. 84 Wis.
snGoodson v. Sunbury. etc., 75 574; 54 N. W. Rep. 1085.
L. T. Rep. 251; 60 J. P. 585; Scott
INJURIES CAUSED BY OIL A:SD GAS NEGLIGENCE. 789
where there is no evidence that the township authorities ever
knew there was a gas pipe in such highway.'*^ Where a horse
was frightened bj reason of the noise caused bv a well, and the
wagon it was drawing came in contact with a long exposed gas
pijD€ in the highway, occasioning an injury thereby to the plain-
tiff, the gas company owning it was held liable/" If a gas com-
pany so imj>erfectly fill up a trench in which it has laid its gas
main that the filling subsides and leaves a hole in the street, it
will be liable to any one, without fault, falling into the hole and
injured thereby, even though the work had been approved and
accepted by local authorities. It is not only the duty of the
company to put the street in as good condition as it was before,
but also to exercise a careful foresight in order to prevent any
injury_ afterwards which might be occasioned to the work by
storms and rainfalls, and which would render the work danger-
ous to travelers. ^^ If the gas company open a hole in the side-
Avalk necessary to the prosecution of its work, it must see that
it is properly protected.**
§683. Imperfectly constructed g^s building.
A person was employed as a master machinist. A fire oc-
curred in the gas room of the company ; and he was directed by
a superior to break down a door. He did as directed ; but a
wall fell on him and killed him. It was claimed that several
times the roof had burned off the building, and after the last
fire an iron roof supix)rted by heavy girders had been put on
the building. It was also claimed that the previous fires had
41 Otto Township v. Wolf. 106 Pa. 73 JNIo. 219; 11 Rep. 675, reversing
St. 608. 6 Mo. App. 85.
42 Potter V. Natural Gas Co., 183 An agreement that the trench
Pa. St. 575; 39 Atl. Rep. 7. shall be "well and sufficiently closed
43 Dillon V. Washington Gaslight up " and the land and premises
Co,, 1 MacArthur (D. C.) 626; "made good" is not complied with
Robinson v. Imperial, etc., Co., 15 where the soil covering the pipes
Gas J. 883; Weld v. Gaslight Co., is in places from two to two and
1 Starkie 150; Chisholm v. Halifax, a half feet above the original level.
29 Nov. Sco. 402. Chisholm v. Halifax, supra.
44 Buesching v. St. Louis, etc., Co.,
790 OIL AND GAS.
SO weakened the wall that it was not able to support the iron
roof and girders ; and that these girders expanded because of
the fire, and the gable being weak, it all tended to cause the
wall to fall. It was held that as the complaint did not show
the deceased was not acquainted with all the defects and risks,
or had been lately employed, or that the wall became weak
during his employment or he did not have charge of that par-
ticular part of the building, and consequently out of his line of
duty', or the gas room was unfit for the purpose for which it
was constructed, the complaint was deficient.*^
§684. Exploding tank injuring servant.
A railroad company had its own gas plant, to manufacture
gas it used. The person who was killed by it exploding was
employed by the company before it was l^uilt. The railroad
company organized a voluntary fire department composed of its
employees ; and the person killed was its chief. Xo one was
required to join the fire company. The object of its formation
was to extinguish fires breaking out in the railroad shops. The
railroad company located the water plugs and pijDcs, furnished
the fire apparatus, permitted the persons composing the fire com-
pany to drill frequently during working hours, during which
hours they were paid their regular wages. Once a week the
chief was allowed an hour to inspect the shops as a precaution
against fire. The chief was killed by an explosion of the gas
plant when endeavoring to put out a fire in the shops. He had
nothing to do with the manufacture of the gas, being employed
only as a machinist, although he frequently repaired the gas
plant. It was claimed that the railroad company had negli-
gently used a tar roof when it should have used a slate or a
"letal one; and that the gas tanks were too close to the fire in
he gas retorts. The gas tanks were twelve feet from the gas
retorts, and were separated by a brick wall. ]\retal roofs were
45 Allen V. Augusta Factory, 82 as to fall of a gate. Allen v. New
Ga. 76; 8 S. E. Rep. 68: Hulett v. Gas Co., L. R. 1 Exch. Div. 251; 45
Pudsey Gas Co., 28 Gas J. 6(5^. Sre L. J. Exch. 668.
INJURIES CAUSED BY OIL AND GAS NEGLIGENCE. 791
generally in use on such buildings, where roofs were
used. On the ground that the negligence of the railroad
company must have been a reckless indifference to the safety
of the public to render it liable, or an intentional failure to per-
form a manifest duty, the company was held not liable.*'^
§685. Servant entitled to safe place in which to work.
A servant is entitled to a safe place in which to work. Thus
where a contractor had one " gang " of men digging a trench
and another laying pipe in the same trench ; and a servant with
the latter gang was assured by the master that the trench was
a safe place in which to work, and there was nothing to indicate
that it was unsafe, the master was held liable to the servant for
injuries he received by the walls of the trench caving in upon
him.'*^ A servant of a gas company dug a trench in front of a
boiler, and left it in an unsafe condition. Another servant who
fired the furnace under the boiler, and who in so doing had to
work near the trench, was injured because of its unsafe condi-
tion. It was held that as the injured servant assumed only
such risks as were incident to his employment, and such as were
apparent and the ordinary risks, he did not assume the risk of
the hole in front of the boiler, and was entitled to recover.*^
It was held differently where a trench was dug by a city, which
the master had no control over and never saw, and the city or-
dered the master to remove some gas pipe from the trench, and
to comply with the order sent the servant to do so, and in doing
so the earth caved in and injured him.*'' A servant of a gas
company assisted in raising a gas tank over a building. In
doing so some boards were left on a scaffold built along the wall
of the building over which the tank was to be raised. The
boards were loose and in an unsafe condition, and fell because
46 Collins V. Cincinnati, etc., Co., 48 Frye v. Bath Gas, etc., Co., 94
13 Ky. Rep. 670; 18 S. W. Rep. 11. Me. 17; 46 Atl. Rep. 804.
47 Schmidt v. Gillen, 41 N. Y. 49 Hughes v. Maiden, etc., Co.,
App. Div. 302; 58 N. Y. Supp. 458; 168 Mass. 397; 47 N. E. Rep. 125.
Baird v. Reilly, 92 Fed. Rep. 884.
792 oil. AND GAS.
the foreman failed to steady the tank which shook them. They
fell and injured the servant; and it was held that the com-
pany was iiahle, on the theory that the master was Ixjiind to
furnish the servant a safe place in which to work, and was
bound to remove the boards that caused the injury.^"
§686. Servant injured by use of defective ladder.
A servant of a gas company was directed to remove some
boards which were over a gas generator. To do this he had to
use a ladder; and he used one that was shorter than the one
he was directed to use. He ascended to the place directed, the
ladder was too short to reach it, but he used other means. He
was overcome with gas that had accumulated at the place to
which he Avas directed to go and fell, receiving severe injuries
from Avhich he died. In an action brought^o recover for his
death on the ground that the place to which he was sent was
a dangerous one, it was held to be immaterial whether the lad-
der was too short or not, for it had nothing to do with the fall ;
because the fall was caused by the inhalation of poisonous gases,
and it could make no difference how^ he made his ascent. ^^ It
was the duty of a servant to light the lamps in front of his mas-
ter's residence, and to do this he had to use a ladder. The
ladder was insecure because of the absence of spikes, and the
servant told his foreman of that fact, who promised to put in
proper spikes, but did not do it, and on being told a second time,
made the same promise. The defect in the ladder continued,
and thc' servant fell from it one stormy night and was injured.
The fall was occasioned by the absence of the spikes. It was
held that the master was not liable, for the reason that the work
and use made of the ladder was only ordinary labor; and the
servant was as familiar with the defects as his master.^' A
50 Bagley v. Consolidated Gas Co., 52 Marsh v. Chickeving. 101 N. Y.
13 N. Y. Misc. Rep. 6; 34 N. Y. 396^ 5 N. E. Rep. 56.^ The court
Siipp. 187. said that the rule applicable to com-
51 Citizens' Gaslight, etc., Co. v. plicated machinery did not apply.
O'Brien, 118 111. 174; 8 K E. Rep.
310.
INJURIES CAUSED BY OIL AND GAS NEGLIGENCE. 793
servant of a gas company had for several years been employed
to make general repairs. By one in authority he was directed
to clean a condenser. To get to the place to do the cleaning he
had to use a ladder, and used one furnished by the company.
The ladder had no spikes in the end resting on the floor, and the
place where it rested was smeared with grease and oil. When
the servant was ascending, it slip]3ed, he was thrown to the
ground, and injured. He claimed the injury was caused by the
absence of the spikes. The servant, some time before the acci-
dent, had told the officers of the gas company that the ladder
was unsafe. It was held that the attempt to ascend the ladder
under the circumstances was negligence, if not recklessness, and
a bar to a recovery ; for the servant knew the facts as well as
the master.^^
53 Corcoran v. Milwaukee, etc.,
Co., 81 Wis. 191; 51 N. W. Rep.
328.
CHAPTER XXXI.
INSURANCE.
§687. Extent of discussion.
§688. Conflict between rider or written part and printed part of policy.
§689. " On the premises."
§690. " Contiguous " to insured building.
§691. Oil for illumination.
§692. Time of filling lamps.
§693. Failure to extinguish lamps.
§694. The oil prohibited.
§695. Prohibited user not occasioning loss.
§696. Owner himself must violate terms of policy.— ^'Q'enant.
§697. Explosions. — No clause of exemption.
§698. Explosions of oil or gas.
§699. Failure to disclose use of oil.
§700. Warranty. — Hazard not increased.
§701. Particular use allowed.
§702. Extent of prohibited use.
§703. Occasional use of hazardous articles.
§704. Increase of risk.
§70.5. Proof of custom or the usual practice.
§706. Implied consent to prohibited use. — Custom.
§707. "Storing." — "Keeping."
§708. Store.
§709. Grocery.
§710. Watchmaker.
§711. Furniture store. — Wagonshop.
§712. Factory.
§713. Drug store.
§714. Laundry.
§715. Patent leather factory.
§716. Painter. — Paintshop or factory.
§717. Torch to remove paint from house.
§718. Cleaning clothes. — Destroying vermin.
§719. Cleaning or lubricating machinery.
§720. Waiver by knowledge or acquiescence in use of building.
§721. Waiver by knowledge or acquiescenc?' in use of building — Continued,
§722. Waiver by receiving premium Avith knowledge of prohibited user.
§723. Waiver by adjusting loss or accepting proof without objection,
794
§724. Insurance company's right of action to recover damages. — Effect
of insurance on right of action.
§725. Gas company causing fire liable to insurance company.
§726. Inhaling gas, accident or life insurance policy.
§687. Extent of discussion.
Necessarily, the extent of the discussion of the subject mat-
ter of this chapter must be brief, and only insurance cases be
cited. Little, if any, methodical order can be followed. Usu-
ally litigation concerning the use or storage of oil in the insured
building arises oA^er the difference between the printed terms
and the written clauses of the policy, or because of the conflict
between the "' rider " and the terms of the policy proper. The
custom of trade, too, must be taken into consideration, for it
has a very decided bearing upon the interpretation of fire in-
surance policies.
§688. Conflict between rider or written part and printed part of
policy.
A " rider " is always something attached to a policy, and is
an addition to it, either by expressly changing the terms of
the policy or adding thereto. It is regarded as the last ex-
pression of the parties to the policy. In case of a conflict be-
tween the language of the policy and rider, the latter will
control ; just as in case there is a conflict between the printed
jxjrtions of a policy and written words inserted in it, the latter
will control, if the two cannot be construed together.^
§689. " On the premises."
It is sometimes difficult to determine whether or not the
prohibited article has been kept on the premises within the
1 Yoch V. Home, etc., Ins. Co., HI Min. 409; 52 N. W. Rep. 906;
Cal. 503; 44 Pac. Rep. 189; 34 L. Phoenix Ins. Co. v. Flemming. 65
R. A. 857; Lancaster Fire Ins. Co. Ark. 54; 44 S. W. Rep. 464; 39
V. Lenheim, 89 Pa. St. 497; 33 Am. L. R. A. 789; Faust v. American
Rep. 778; Gunther y. Liverpool, etc.. Fire Ins. Co., 91 Wis. 158; 64 X. W.
Ins. Co., 85 Fed. Rep. 846; Russell Rep. 883; 30 L. R. A. 783.
V. Manufacturers', etc., Ins. Co., 50
796 OIL AND GAS.
meaning of a provision prohibiting the keeping of such an ar-
ticle " on the premises," It is clear that such a phrase cannot
be so extended as to include a building other than the one cov-
ered by the policy, so that keeping the prohibited article in
such building will not avoid the policy." The keeping of gas-
oline in the yard twelve feet from the insured building is not
f. breach of a condition of a policy which prohibits the storage
or use of gasoline in or on the premises.' Nor is such a ]X)licy
avoided by the storage of the gasoline in a tank undergrijund
thirty-five feet from the insured building, where by means of
certain machinery it is vaporized and the vapor carried into
the building by a pipe and used for lighting.* A policy placed
on a " three-story brick gravel roof hotel building, occupied by
the assured," and known as the Tremont Hotel, situated on lots
9 and 12 gave permission " to light premises with gasoline,"
but provided that " no gasoline should be stored on the prem-
ises." It was held that the word " premises " meant the build-
ing insured, rnd the insured was not prohibited from depositing
gasoline for the use of the hotel, in reasonable quantities, on his
own lots outside the hotel.""^ A policy on a specifically described
steam flour mill and machinery prohibited the keeping of petro-
leum on " the premises." The insured kept a barrel of |D€tro-
leum in an engine house adjoining, but not included in the speci-
fic description of the premises. The fire that destroyed the mill
originated in it and not in the engine room. It was held that
the petroleum had not been kept on " the premises," and that
the policy was not avoided.'' The use of naphtlia for four
weeks to burn off the paint on the outside of a house, using it
within a few inches of the outer wall, is the bringing of naphtha
2 Sperry v. Insurance Co., 22 Commerce Ins. Co., 6f) N. Y. 191;
Fed. Rep. .516. See Hanover Fire 2,5 Am. Rep. 168, affirming 7 Hun
Ins. Co. V. Stodciarcl, 52 Neb. 745 ; 455.
7.3 N. W. Rep. 291. s Northwestern, etc., Ins. Co. v.
s La Force v. Williams, etc., Ins. f4ermania Fire Ins. Co., 40 Wis.
Co.. 4.3 Mo. App. 51S. 446.
4 Queen Ins. Co. v. Sinclair. 1 « Carlin v. Western, etc., Co., 57
Ohio Cir. Ct. Rep. 496; Ai'kell v. Md. 515; 40 Am. Rep. 440.
IlfSURANCE. 797
" on the premises." ^ Permission was given, to remove insured
goods to " the three-storj . . . building occupied as a
. . . store, situated at Xo. 72 E. Street." Just back of the
three-story building was a one-story addition which opened into
it by a door and window, which was included under the street
number 72. For a long time previous to the granting of the
permission the addition was occupied as a part of the store,
and in it some of the insured goods were put. It was held
that this addition was such a part of the premises as to prohibit
the keeping of gasoline in it.*" In this instance the gasoline
was kept and used in a gasoline stove in an upstairs room
which had no connection with the store, and was reached by an
outside stairw^ay. A policy provided that it should be void if
illuminating gas or vapor should be generated in the building
or adjacent thereto, to use therein. The insured manufactured
a gaseous fluid from gasoline and other ingredients, which was
kept in a shed separated from the insured building, and used
in a lamp for lighting, a portion of it being kept on a shelf in
the back part of such building. The insured had used all the
fluid several days before the fire occurred, and was not using it
at the time of the fire. It was held that the facts warranted
a finding that no illuminating gas was generated in the building
for use therein,* Where the policy prohibited the using o
depositing of oil on the premises, the policy covering the house
only ; and the gasoline was kept in the bam and brought into
the house as needed and there used, it was held that the policy
was thereby avoided,''
§690, " Contiguous " tovinsured building.
A ]X)licy prohibited " the generating or evar»orating within
the building, or contiguous thereto, of any substance for a burn-
' First Congregational Church v. s Phoenix Ins. Co. v. Shearman, 17
Holyoke, etc., Ins. Co., 158 Mass. Tex. Civ. App. 456; 43 S. W. Rep.
475; 33 N. E. Rep. 572; 35 Am. St. 930. 1063.
Rep. 508; 19 L. R. A. 587. a Pennsylvania Ins. Co. v. Faires.
*7Bover v. Grand Rapids Fire 13 Tex. Civ. App. Ill: 35 S. W.
Ins. Co.. 124 Mich. 455; 83 N. W. Rep. 55.
Rep. 124.
798 OIL AND GAS.
ing gas, or the use of gasoline for lighting." After the policy
was issued, the insured constructed works fifty feet from the
building for the manufacture of gas from gasoline ; and the
gas when manufactured was conducted to the building by pipes.
It was held that the policy was not avoided, for the gas works
were not " contiguous " to the building, within the meaning of
the clause quoted."
§691, Oil for illumination.
The prohibition against the use of enumerated oils upon the
premises will not, as a rule, prohibit their use for necessary
illuminating purposes. Such was held to be the case of the use
of naphtha, ^^ and of kerosene.^" Wliere a clause in a policy
prohibited the storing or use of " petroleum, rock or earth " oil
on the premises, and another clause prohibited the lighting of
the premises by means of certain inflammable substances, not
including kerosene, lighting the building with kerosene, and
keeping on hand in it a reasonable quantity for that purpose,
was held not to avoid the policy.^^
§692. Time of filling lamps.
Where the use of oil is expressly permitted for illuminating
purposes, a clause is frequently inserted providing when the
lamps must be filled, almost universally requiring that work to
be performed in the day time. A violation of such a provision
avoids the policy. Thus where a policy required the lamps " to
be filled and trimmed by daylight," it was held that the policy
was avoided by the drawing on the premises of carbon oil to loan
to a neighbor about dusk, near a lighted lantern, though not
ifArkell v. Commerce Ins. Co., North British, etc., Co., 8 Daly 471 ;
69 N. Y. 191; 25 Am. Rep. 168; Hall v. Insurance Co., 58 N. Y. 292;
affirming 7 Hun 455. 17 Am. Rep. 255; Bennett v. North
11 Putnam v. Commonwealth Ins. British, etc., Ins. Co., 81 N. Y. 273;
Co., 4 Fed. Rep. 753. 37 Am. Rep. 501.
12 Jones V. Howard Ins. Co., 117 1 3 Buchanan v. Exchange Fire
N. Y. 103; 22 N. E. Rep. 578; 10 Ins. Co., 61 N. Y. 26.
N. Y. St. Rep. 120; Bennett v.
IXSURAXCE. 799
for the purpose of filling lamps, by any person acting for the
insured, whereby a fire was caused, the policy only permitting
carbon oil to be used on the premises for lighting purposes.^*
But where a policy provided that the insurer should not be
liable for a loss caused by the use of kerosene, unless permitted
on the policy in writing, it was held that a recovery on the
policy could not be defeated on the ground that lamps were filled
with kerosene in the evening, and by artificial light, unless it
w^as shown that the loss was occasioned thereby/^ So where the
policy prohibited the use of camphene, spirit gas, burning fluid,
or chemical oils, but permitted the use of refined coal oil, kero-
sene, or other carbon oil for lights, if drawn and the lamps
filled by daylight, it was held that it was not avoided by using
lard oil and candles, and filling the lamps with it at night/''
§693. Failure to extinguish lamps.
A policy granted the privilege of using kerosene oil for lights
in the day time, and provided that they should be extinguished
at the close of the day's business. It was held that the mere
fact that at some time during the life of the policy the insured
failed to extinguish the lamjjs at the close of the business of
the day could not prevent a recovery, unless the risk by such
failure was increased ; for the reason that the doing of an act
which the policy prohibits for the manifest purpose of prevent-
ing an increase of the risk will not work a forfeiture.^'^
§694. The oil prohibited.
If a particular kind of oil is prohibited, then the keeping of
another kind will not avoid the policy. Thus prohibiting the
use of camphene, spirit gas, burning fluid, or chemical oils, but
14 Gunther v. Liverpool, etc., Ins. is Jones v. Howard Ins. Co., 117
Co.. 134 U. S. 110; 10 Sup. Ct. Rep. N. Y. 10.3; 22 N. E. Rep. 578.
448 ; Liverpool, etc., Ins. Co. v. le Carlin v. Western, etc., Co., 57
Gimther. 116 U. S. 113; 34 Fed. Md. 515; 40 Am. Rep. 440.
Rep. 501. i'^ Fireman's Ins. Co. v. Cecil, 12
Ky. L. Rep. 48, 259.
800 OIL AND GAS.
permitting- the use of refined coal oil, kerosene, or other carbon
oil for lights, if drawn and the lamps be filled bv daylight, will
not prohibit the use of lard oil and candles, even thongh the
lamps be filled at night. ^^ But a clause prohibiting the keeping
of petroleum will iwohibit the keeping of gasoline, for gasoline
is a product of petroleum, though it be not named in the policy
as a prohibited article.^^ In the absence of proof a court cannot
hold kerosene oil to be a '' burning fluid or chemical oil." "^
" French Electric Fluid " has been held to be the equivalent
of benzine."^ Whether benzine was a " burning fluid or chem-
ical oil " within the meaning of a policy on a distillery forbid-
ding the assured to keep or have " camphene, spirit gas, or any
burning fluid or chemical oils " on the premises was held to be a
question of fact."- A policy provided that " camphene, spirit
gas, naphtha, benzine or benzole, chemical, crude or refined
coal or earth oils " should not be kept or used on the premises,
l)ut this was held not to prevent the use of kerosene oil, the
phrase " crude or refined coal or earth oils " being limited by
the remaining words in the sentence in which they were used
so as not to prohibit the use of kerosene."^ Where an assured,
thinking he was using a mixture of spenn and lard oils, for
lubricating purposes, when in fact he was using a compound of
those oils with petroleum, Avhich was equally as safe, it was held
that there was no breach of a condition of the policy that only
sperm and lard oils should be used.^*
18 Carlin v. Western, etc., Co., 57 24 Copp v. Grerman- American Ins.
Md. 515; 40 Am. Rep. 440. Co., 51 Wis. 637; 8 N. W. Rep. 127,
19 Kings County Fire Ins. Co. v. 616.
Swigert, 11 111. App. 590». A prohibition against the keeping
20 Mark v. National Fire Ins. Co., of nitroglycerine was held to ex-
24 Hun 565. elude giant powder, the evidence
21 Phoenix Ins. Co. v. Shearman, showing that the latter was almost
17 Tex. Civ. App. 456; 43 S. W. wholly composed of the former.
Rep. 930, 1063. Sperry v. Springfield, etc., Ins. Co.,
22Mears v. Humboldt Ins. Co., a6 Fed. Rep. 234; 15 Ins. L. Jr.
92 Pa. St. 15; 37 Am. Rep. 647. 270.
23 Morse v. Buffalo, etc., Ins. Co.,
30 Wis. 534; 11 Am. Rep. 587.
IXSURAXCE. 801
§695. Prohibited user not occasioning loss.
Whether or not the user of the prohibited article occasioned
the loss is an immaterial question ; for if the article be used
contrary to the terms of the }X)licy, it will avoid such policy,
although the loss be occasioned by another and distinct cause. "^
But where a policy provided that the insurer " will not be liable
under or by virtue of this policy for loss or damage caused by
the working of mechanics . . . nor for the use of kerosene
unless |">ermitted hereon in writing " ; and it was
claimed that the insured violated the ]X)licy by filling his lamps
with kerosene in the evenings, by artificial light ; it was held
that as the fire and the consequent loss did not have its origin
from the use of the kerosene the insurer was liable."*' So it
has been held that if gasoline was brought upon the premises
contrary to the prohibitory clause of the policy, but it was not
there when the loss occurred, the policy was not thereby avoided,
although if it had been there when the fire occurred, the policy
would have been avoided."' So where kerosene could only be
used for lighting purposes, but it was used for fuel purposes, the
company was held liable, the use of the kerosene not causing
the fire.-"
25 Pennsylvania Fire Ins. Co. v. 26 .Jones v. Howard Ins. Co.. 117
Faires, 13 Tex. Civ. App. Ill; 35 N. Y. 103; 22 X. E. Rep. .578.
S. W. Hep. 55; Williams v. People's 27 Traders' Ins. Co. v. Catlin. 163
Fire Ins. Co., 57 N. Y. 274; Faulk- 111. 256; 45 N. E. Rep. 255; 59 111.
er V. Central Fire Ins. Co., I Kerr App. 162. See New England, etc.,
(N. B.) 279; Trustees, etc.. v. Wil- Ins. Co. v. Wetmore. 32 111. 221;
liamson, 26 Pa. St. 196 ; Commer- Germania Fire Ins. Co. v. Klewer,
cial Ins. Co. v. Mehlman. 48 111. 129 111. 599; 22 X. E. Rep. 489;
313; Couch v. Rochester, etc., Ins. Phoenix, etc., Co. v. Munger (Tex.
Co., 25 Hun 469; Duncan v. Sun Civ. App,), 49 S. W. Rep. 271.
Fire Ins. Co., 6 Wend. 488; Diehl See the rather remarkable case of
V. Adams County, etc., Ins. Co., 58 Traders' Ins. Co. v. Race, 142 111.
Pa. St. 443; Murdock v. Chenango, 338; 31 N. E. Rep. 392.
etc., Ins. Co.. 2 X. Y. 210; White v. 28 Snyder v. Dwelling House Ins.
Western, etc., Co. (Pa.), 6 Atl. Rep. Co.. 59 X. J. L. 544; 3/ All. Rep.
113. 1022, reversing 34 Atl. Rep. 931.
802 OIL AND GAS.
§696. Owner himself must violate terms of policy. — Tenant.
The rule is, to avoid a policy, the insured himself must have
done the act prohibited by it, or, at least, suffered others to do
it. Thus where workmen in a factory used friction matches
to some extent contrary to orders of the insured, the court in-
structed the jury that the use of matches contemplated by the
policy to render it void must have been a use by authority, ex-
press or implied, of the insured ; that what was going on in the
premises he was bound to know ; that if he knew, or as a prudent
man ought to have known, that matches were used, then his
order would not help him ; and that the use meant was a known
and permitted use. These instructions were hold to be cor-
rect."'' But if a person occupying the premises with the con-
sent of the insured, as his tenant, for instance, violates the
prohibitory clause of the policy, his act is the act of the in-
sured. "° The fact that the breach of the policy occurred through
the orders of the husband and general manager of the tenant
of the assured, although he Avas not acting by express or implied
authority from such insured, was held not to relieve him from
the responsibility for the breach of the prohibitory condition.^^
§697. Explosions. — No clause of exemption.
If there be no clause in the policy exempting the insurer from
loss occasioned by an explosion, then such insurer will be liable
for the loss. Thus where a jwlicy had no such exempting
clause, and a match was applied to a keg of powder which ex-
ploded, threw off the roof of the insured building, and did
29 Farmer, etc., Ins. Co., v. Sim- 380; 54 N. Y. Supp. 230 (landlord
mons, 30 Pa. St. 299. did not know tenant was using gaso-
30 German Fire Ins. Co. v. Board, line for a light) ; Adair v. Southern
54 Kan. 732; 39 Pac. Rep. 697; etc., Ins. Co., 107 Ga. 297; 33 S. E.
Kelly V. Worcester, etc., Ins. Co., Rep. 78.
97 Mass. 284; 5 Benn. Fire Ins. Co., 3i Liverpool, etc., Ins. Co. v. Gun-
122; Duncan v. Sun Fire Ins. Co., *. ther, 116 U. S. 113; 6 Sup. Ct. Rep.
6 Wend. 488; Badger v. Platts, 68 306; Gunther v. Liverpool Ins. Co.,
N. H. 222 ; 44 Atl. Rep. 296 ; Kohl- 85 Fed. Rep. 846.
mann v. Selvage, 34 N. Y. App. Div.
IxsuRA^"CE. 803
other damage, the insurer was held liable.^" A clause in a
policy provided that the insurer should not be liable '" for any
loss caused by the explosion of gunpowder, camphene, or any
explosive substance, or explosion of any kind." The building
insured was destroyed by fire, which was the immediate result
of an explosion ; and the insurer was held liable, the court saying
of the policy : " It secures exemption from liability from
losses caused by explosions, but not from liability for losses by
fire caused by explosions." ^^
In a Missouri case the following language was used, which
shows the line of reasoning in cases of this kind : " If fire
was the direct and proximate cause of the damage, the responsi-
bility therefor becomes fixed. It would make no difference
whether it manifested itself in combustion or explosion. . . .
The explosion of a coal oil lamp, caused by the generating of
gas, may not in a moment communicate the fire to the entire
building, but it may result in as complete destruction as the
ignition of gas, which permeates every part of the building,
and destroys the whole by an instantaneous blaze. Powder may
be ignited either in quantities only sufficient to communicate
fire to combustible materials around it, or sufficient to demolish
the largest building. There would be only a difference in de-
gree between the one and the other. Xo reason can be seen why
an exception to an indemnity against loss by fire should be made
because the work of destruction is instantaneous and by explo-
sion, rather than through the slow process of gradual communi-
cation and combustion." ^*
32 Scripture v. Lowell, etc., Ins. lies, 21 Wend. .367; Boatman's Fire
Co., 10 Cush. 356; Waters v. Mer- Ins. Co. v. Parker, 23 Ohio St. 85.
chants' etc.. Ins. Co.. 11 Pet. 213; s* Renshaw v. Missouri, etc., Ins.
Hobbs V. Guardian, etc., Co., 12 Co., 103 Mo. 595; 15 S. W. Rep.
Can. Sup. Ct. 631. 945; Aetna Ins. Co. v. Boon, 95 U.
33 Commercial Ins. Co. v. Robin- S. 117; American Steam, etc., Ins.
son. 64 111. 265; Heflfron v. Kittan- Co. v. Chicago, etc., Co.. 57 Fed.
ning Ins. Co., 132 Pa. St. 580; 20 Rep. 294; 21 L. R. A. 572; Boat-
Atl. Rep. 698 ; Renshaw v. Missouri, man's, etc., Ins. Co. v. Parker, 23
etc., Ins. Co.; 33 Mo. App. 394; Ohio 85.
Greenwald v. Ins. Co.. 3 Although not liable for damr.ges
Phila. 323; Citv Fire Ins. Co. v. Cor- caused by an explosion, yet a com-
804 OIL AND GAS.
§698. Explosions of oil or gas.
The general rule is that the ordinary fire ix)licies do not
cover lossea occasioned by explosions not directly connected with
fire, such as a loss occasioned by the explosion of a steam
boiler.""*^ So, too, an explosion of gunpowder that wrecks a
house is not such an act as a fire jx^licy covers; and it cannot
he said that the fire which ignited the powder was the fire in-
sured against."*^ So where a policy provided that the insurance
company should not 1k» Hal)l(' " for loss caused hy . . . ex-
plosions of any kind unless fire ensues, and then for the loss or
damage by fire only " ; and vapors arising from the works in
the mill insured, where the rectifying of spirits was carried
on, came in contact witli a l)uniiiiii- lani]) in the mill, left there
by persons repairing the nuichincry, causing an instantaneous
explosion, which blew off the roof of th«5 mill, blew down the
greater part of the walls, injured the nnichiner)', and produced
a fire which occasioned some damage, though slight compared
with that caused by the explosion, it was held that the insur-
ance company was liable only for the damages caused by the
fire, and not for those caused by the explosion itself.^^ So
where, under a like exemption clause, a mixture of wliiskey
vapor in a store insured and atmosphere came in contact with a
gas jet and exploded, setting a fire in motion which destroyed
the insured property ; it was held that the loss was from the fire
occasioned by the explosion, and that the company was not liable
for it, and that the burning gas jet " was not such a fire as was
contemplated by the parties as the peril insured against." The
pany is liable for the damages Cas. 760; Millaudon v. New Or-
oaused by the fire started by the ex- leans Ins. Co., 4 La. Ann. 15; 3
plosion. Heffron v. Kittanning Ins. Benn. Fire Ins. Cas. 4.
Co., 132 Pa. St. 580; 20 Atl. Rep. 36 Everett v. London Assurance
698. Co., supra : Caballero v. Home In-
35 Insurance Co. v. Tweed, 7 Wall surance Co., 15 La. Ann. 217; Ger-
44; Waldeck v. Springfield, etc., man Ins. Co. v. Roost, 55 Ohio St.
Ins. Co., 56 Wis. 96; 14 N. W. Rep. ""581; 45 N. E. Rep. 1097; 36 L. R.
1; 12 Ins. L. Jr. 177; St. John v. A. 236.
American, etc., Ins. Co., 11 N. Y. si Briggs v. North American, etc.,
516; 1 Duer 371; 3 Benn. Fire Ins. Ins. Co., 53 N. Y. 446.
IXSUEAXCE. 805
court said : " The gas jet, though burning, was not a de-
structive force, against the immediate effects of which the policy
was intended as a protection. Although it was a possible means
of putting such destructive force in motion, it was no more the
peril insured against, than a friction match in the jiocket of an
incendiary." ^* The same was held where illuminating gas in
a room was ig-nited by the striking of a match, for the reason
that the explosion and not the lighting of the match was the
proximate cause of the loss.^^ So where a loss was occasioned
by a lighted fire being applied to some unknown substance
placed in a doorway, which broke the windows, broke the door
sill and slightly discolored some of the paint on the house, it
was held that the company was not liable.'*" But where fire
exists on the premises or on the premises adjacent thereto, and
in its progress reaches an explosive, causing an explosion, from
which loss results, the fire is the proximate cause of the loss, and
the insurer liable.*^ A policy of insurance provided that
" neither will the company be responsible for loss or damage
by explosion, except from explosion by gas." On the premises
an inflammable and explosive vapor was evolved in the process
of extracting oil from shoddy. The oil caught fire and after-
wards exploded, causing a further fire, besides the damage by
the explosion itself. It was held that the word " gas " as
used in the policy meant illuminating coal gas, and that the
insurer was liable for the damage caused by the exploding gas
38 United Life Ins. Co. v. Foote, Guardian, etc., Co., 12 Can. Sup.
22 Ohio St. 340; 2 Ins. L. Jr. 190. Ct. 631; Washburn v. IVIianii, etc.,
39 Heuer v. Northwestern, etc., Ins. Co., 2 Fed. Rep. 633 ; 2 Flipp.
Ins. Co., 144 111. 393 ; 33 N. E. Rep. 664 ; 9 Ins. L. Jr. 68 ; Dowe v.
411; Heuer v. Winchester Fire Ins. Faneuil Hall Ins. Co., 127 Mass.
Co., 1.51 111. 331; 37 N. E. Rep. 346; Transatlantic Fire Ins. Co. v.
873; affirming 45 111. App. 239; Dorsey, 56 Md. 70; Smiley v. Citi-
Tannert v. Ins. Co., 34 zens', etc., Ins. Co., 14 W. Va. 33.
La. Ann. 249; Roe v. Columbus, 4i ,\^ashburn v. Western Ins. Co.,
etc., Ins. Co., 17 Mo. 301; Mont- 2 Fed. Rep. 633; Fed. Cas. No.
gomery v. Fireman's Ins. Co.. 16 17216; 9 Ins. L. Jr. 424; Washburn
B. Mon. 427. v. Artisans' Ins. Co., Fed. Cas. No.
40 Phoenix Ins. Co. v. Greer, 61 17212; 9 Ins. L. Jr. 68; Orient Ins.
Ark. 509; 33 S. W. Rep. 840. Co. v. Leonard, 120 Fed. Rep. 808.
See on this same subject Hobbs v.
80 G OIL AND GAS.
which occurred in the course of the fire, but not for the damages
caused by the explosion and the fires which it caused/" Where
a policy issued to an express company provided " that no loss is
to be paid arising from petroleum or other explosive oils or in
case of a collision ; and a collision took place with a train loaded
with petroleum, and the petroleum took fire and the fire con-
sumed the goods insured, the insurer was held not liable.**
Gasoline was kept in a retail store and tin store. The store was
covered by a policy insuring the stock of goods, and to the policy
was attached a written clause which included a grant of the
privilege to keep a limited quantity of gasoline. The printed
clauses of the policy excluded all liability for explosives of any
kind, unless fire ensued, and then covered loss or damage by fire
only. An explosion was caused by the gasoline, and for the loss
thus incurred the insurer was held not liable.**
§699. Failure to disclose use of oil.
If the insured does not reveal the fact at the time he secures
insurance on his property that oil is habitually kept on the
premises where it is situated or contiguous thereto, it may be
such a misrepresentation as will avoid his policy. Such was
held to be the case where the diagram of the property furnished
by the insured and his application did not show that a building
was contiguous to the one insured, and that it was used as a
place for painting barrels, benzine being used and kept in it.'*^
§700. Warranty. — Hazard not increased.
The description in a policy may amount to a warranty that
the contents of the store insured are not hazardous merchandise.
If such is the case, the keeping of a small quantity of the goods
42 Stanley v. Western, etc., Co., >* Mitchell v. Potomac Ins. Co.,
L. R. 3 Exch. 71; 37 L. J. Exch. 183 U. S. 42; 22 Sup. Ct. Rep. 22,
73; 17 L. T. (N. S.) 513; 16 W. affirming 16 U. S. App. D. C. 241.
R. 369. 45 McFarland v. Peabody Ins. Co.,
43 Imperial Fire Ins. Co. v. Far- 6 W. Va. 425.
ffo, 95 U. S. 227.
INSURANCE. 807
declared in the poliej to. be hazardous will avoid the policy,
although the risk be not thereby increased. Such was the case
where the goods were described in the policy as a " stock in
trade, consisting of not hazardous merchandise," and provid-
ing that if the store should be used for carrying on or exer-
cising any trade or business or keeping merchandise denomi-
nated hazardous in the terms of the policy, or if the risk should
be increased with the consent of the assured, it should be void.*'^
§701. Particular use allowed.
If a policy provides that petroleum shall not be kept or used
on the premises except for lighting purposes, the keeping or
using of it on the jiremises as a fuel will avoid the policy.*^
§702. Extent of prohibiting usage.
As a rule the amount of use of the prohibited product is im-
material. Thus the temporary use of naphtha on a single occa-
sion was held to avoid the policy.*^ Where no inquiry was
made by the company at the time it issued a policy concerning
the use of gasoline on the premises, the use of it thereafter in
contravention of a prohibitory clause in the policy will avoid
such policy, although it was used when the policy was issued.*"
§703. Occasional use of hazardous articles.
It has been held that the occasional use of articles denomi-
nated hazardous would not avoid a policy conditioned against
46 Richards v. Protection Ins. Co., Am. Rep. 149, reversing 9 Hun 415;
30 Mo. 273. Heron v. Phoenix, etc., Ins. Co.,
47 White V. Western, etc., Co., 18 180 Pa. St. 2.57; 40 W. X. C. 55;
W. N. C. (Pa.) 279; 6 Atl. Rep. 3G Atl. Rep. 740; 36 L. R. A. 517.
113. A casual deposit of the prohibited
48 Wheeler v. Trader's Ins. Co., article in the building was held
62 N. H. 326, 450. (But it should not to avoid the policy. Hynds v.
be remarked that the naphtha was f^chenectady, etc., Ins. Co., 11 N. Y.
used in this case several times, and 5.54; affirming 16 Barb. 119.
a cask of it was taken on the prem- 49 McFarland v. St. Paul, etc.,
ises.) Matson v. Farm Building Ins. Co.. 46 Minn. 519; 49 IST. W.
Fire Ins. Co., 73 TST. Y. 310; 29 Rep. 253,
808 OIL AND GAS.
their use.^" The temporary use of benzine to renovate fur-
niture and carpets will not avoid a policy, although the risk
thereby be increased contrary to its terms."'^^
§704, Increase of risk.
Xot infrequently policies provide that any increase of the
hazard assumed by the insurer shall avoid the iwlicy. Whether
or not the particular thing- done, and wliich it is insisted avoids
the policy, increased the hazard is a question for the jury.^'
Where the policy provided that it shmdd be void if tlie linzard
was increased, or any of the products of petroleuin of a greater
inflammability than kerosene were used or kept on the prem-
ises; and when the policy was issued the insured was using coal
as a fuel, and afterwards he substituted for the coal a ^' reduced
oil " of less inflannuability tlian kerosene, it was hold that the
only question was as to the method of using the oil, and whether
the hazard was thereby increased. ^^ A clause in a policy
avoided it if there was an increase of the hazard. For several
months before the fire tlie insured kept in a room where the
merchandise insured was situated, a jug containing crude petro-
leum for medical purposes. The petroleum did not cause and
had nothing to do with the fire; but the evidence tended to
show that its presence Avas dangerous, and tended to increase
the risk. It was held error for the court to refuse to charge
the jury that if the risk was actually and materially increased
it avoided the policy.^* Evidence is admissible to show that
the occupation of the premises for finishing chairs, wherein
an alcohol lamp w^as used and exploded, causing the fire, that
50 Merchants', etc., Ins. Co. v. .54; Williams v. People's Fire Ins.
Washington, etc., Ins. Co., 1 Handy Co., 57 K Y. 274; Atherton v.
408; La Force V. Williams, etc.. Co., British, etc.. Co., 91 Me. 289; 39
43 Mo. App. 518. Atl. Rep. 1006.
51 Bently v. Lumberman's Ins. ^53 Grand Rapids etc., Co. v. Am-
Co., 191 Pa. St. 276; 43 Atl. Rep. erican Fire Ins. Co.. 93 Mich. 396;
209. 53 N. W. Rep. 53S.
52 Pool V. Milwaukee, etc., Ins. 54 Williams v. People's Fire Ins.
Co., 91 Wis. 530; 65 N. W. Rep. Co., 57 N. Y. 274.
INSUEAXCE. 809
the risk was thereby increased.^' A policy prohibiting the keep-
ing of baled hay is avoided by keeping large quantities of loose
nnbaled hay ; for the reason that loose hay is more hazardous
than baled hay.^'' To put up a frame building near the one
insured in which is placed an incubator heated by the use of
gasoline or kerosene as a fuel is to increase the risk of the in-
surer.^^ Where gasoline had been kept in violation of the terms
of the ix)licy, but at the time of the fire none were on the prem-
ises, it was held to be a question of fact, on which the testimony
of experts was admissible, whether the risk had been increased ;
and the effect of the changed condition on the premium rate
which should have been charged by underwriters generally for
the insurance of the property may be shown as bearing on the
issue, though it is not conclusive.^^
§705. Proof of custom or the usual practice.
As a rule proof is admissible to show what was the custom or
usual practice with reference to the keeping of prohibited ar-
ticles where it is claimed that the nature of the property insured
was such that the articles prohibited were a necessary part of
the whole. As in the case of a country store, proof is admissible,
in an action on the jjolicy, to show custom or practice with refer-
ence to the keeping of prohibited articles, such as gasoline. ^^
But if there is an express provision that a certain oil shall not
55 Appleby v. Astor Fire Ins. Co., Co., 105 Mass. 297 ; Lietch v. At-
54 N. Y. 253. lantic, etc., Ins. Co., 66 N. Y. 100.
56 Dittmer v. Germania Ins. Co., 59 American, etc., Ins. Co. v.
23 La. Ann. 4.58; 8 A, M. Rep. 600. Green, 16 Tex. Civ. App. 531; 41
57 Yentzer v. Farmers', etc., Ins. S. W. Rep. 74 ; Mascott v. Granite,
Co.. 200 Pa. St. 325; 49 Atl. Rep. etc., Ins. Co. (Vt.), 35 Atl. Rep.
767. 75; Maril v. Connecticut Fire Ins.
58 Traders' Ins. Co. v. Catlin, 163 Co., 95 Ga. 604; 23 S. E. Rep. 463;
111. 256; 45 N. E. Rep. 255, revers- 30 L. R. A. 835; Hall v. Insurance
ing 59 111. App. 162. See Cornish Co., 58 K Y. 292; 17 Am. Rep. 255;
V. Farm, etc., Ins. Co., 74 N. Y. Citizens' Ins. Co. v. McLaughlin,
295; Planters', etc., Ins. Co. v. 53 Pa. St. 485; Tubb v. Liverpool,
Rowland. 66 Md. 236; 7 Atl. Rep. Etc.. Ins. Co., 106 Ala. 651; 17 So.
257; Luce v. Dorchester, etc., Ins. Rep. 615.
810 OIL AND GAS.
be kept or jDermitted on the premises, then the keeping of it for
trade will avoid the policy.^"
§706. Implied consent to prohibited use. — Custom.
An implied consent to use the buildings in a manner pro-
hibited by the policy may be drawn from the use to which the
building was being put at the time the policy was issued, or
from the nature of the stock insured. Thus where keeping gun-
powder was prohibited, yet the store insured was such a store
as usually contains gunpowder for retail; and at the time the
policy was issued the insurance agent knew gimpowder was
actually kept for that purpose in the store, it was held that the
keeping of the amount usually carried by retail storekeepers
did not avoid the policy."^ So where a policy placed with a
silver plating company on its stock and machinery in its fac-
tory, provided " that the entire policy, imless otherwise pro-
vided by agreement indorsed hereon or added hereto, shall be
void (anything contrary, notwithstanding) if there be kept,
used, or allowed on the above described premises . , . gas-
oline," was held not to prohibit the use of gasoline in the com-
pany's business, it being so used at the date of the policy, and
the use being necessary. The fact that only such amount was
brought into the factory at any one time as was used in a single
day seems to have had some bearing on the decision.^" A policy
containing a provision declaring it to be void if gasoline be
" kept, used or allowed " on the premises does not prohibit the
60 Birmingham Fire Ins. Co. v. v. Commercial, etc., Co., 12 Fed.
Kroegher, 83 Pa. St. 64; 24 Am. Rep. 5.54; 11 Biss. 309; 11 Ins. L.
Rep. 147. In this case a barrel of J. 688. See Sperry v. Springfield,
petroleum was kept for sale in a etc., Ins. Co., 26 Fed. Rep. 234; 15
store. Ins. L. J. 270; and Steinbach v. Re-
el Kenton Ins. Co. v. Downs, 90 lief Ins. Co., 77 N. Y. 498, affirmed
Ky. 236; 13 S. W. Rep. 882; Mas- 13 Wall 183; Steinbach v. Lafay-
cott V. Granite, etc., Ins. Co. (Vt.), ette Ins. Co., 54 N. Y. 90.
35 Atl. Rep. 75; Phoenix Ins. Co. _^-6 2Fraim v. National Fire Ins.
V. Flemming, 65 Ark. 54; 44 S. W. Co., 170 Pa. St. 151; 37 W. N. C.
Rep. 464; 39 L. R. A. 789; Maril .39; 32 Atl. Rep. 613; Northern, etc.,
V. Connecticut Fire Ins. Co., 95 Co. v. Crawford, 24 Tex. Civ. App.
Ga. 604; 23 S. E. Rep. 463; Stout 574; 59 S. W. Rep. 916.
INSURANCE.
811
keeping in the building gasoline to be used in filling gasoline
torches for use in removing paint from the building, in order
to repaint it."^ Under a policy placed on household and kitchen
furniture and family stores, a clause pTohibiting gasoline
on the premises will not prevent the use of gasoline in
the kitchen gasoline stoves, it being shown that household and
kitchen furniture ordinarily include gasoline and gasoline
stoves.""^ It Avas held that the prohibitory clause was repugiiant
to the general tenor of the policy when applied to the articles
insured.''" Where a policy on a store prohibited the use of any
burning fluid or chemical oils, and a subsequent clause permitted
the use of kerosene oil as a light in the dwelling part of the
building, the use of kerosene in the store rendered the policy
void, although the owner slept in the store with his clerk, and
kept the kerosene lamps burning as a protection against
buro-lars."" A house was insured and then changed into a gro-
eery, in which articles were sold which were denominated
" hazardous." This was held to avoid the policy."
§707. " Storing."—" Keeping."
Fire insurance policies usually prohibit the storing of oils
upon the premises of the property insured ; and not infrequently
the question arises what is a " storing " of oil. Usually the
keeping of enough oil for the retail trade, as retailers are in
the habit of doing, will not avoid a policy prohibiting the " stor-
ing " of oil. Thus a grocer may keep such oils in reasonable
quantities as grocers usually keep and which is incidental to
his business, although there be a clause in his policy suspending
63 Smith V. German Ins. Co., 107 65 it is different if fireworks are
Mich. 270; 65 N. W. Rep. 236; Ack- kept in the dwelling house. Heron
ley V Ph'cenix Ins. Co., 25 Mont. v. Phoenix, etc., Ins. Co., 180 Pa.
272; 64 Pac. Eep. 665. St. 257; 40 W. N. C. 55; 36 Atl.
64 American, etc., Ins. Co. v. Rep. 740; 36 L. R. A. 517.
Green, 16 Tex. Civ. App. 531 ; 41 S 66 Cerf v. Home Ins. Co., 44 Cal.
W. Rep. 74; Snyder v. Dwelling 320; 13 Am. Rep. 165.
House Ins. Co., 59 N. J. L. 544; 67 Davern v. Merchants', etc., Ins.
37 Atl. Rep. 1022. Co.. 7 La. Ann. 344.
812 on. AND GAS.
its operations if oils be stored in the building/'* Even the
keeping of gasoline for retail, in reasonable quantities, will not
avoid the policy, although it be denominated extra hazardous as
an article of storage/'' Where the assured is prohibited "• from
using the premises for the purpose of keeping or storing therein
any goods or merchandise of the kind which are denominated
hazardous," the keeping of articles in the stock of goods insured
which are of a hazardous character, but which are required by
the ordinary course of his trade w^ill not avoid the policy, for
such a provision is merely a protection against the appropria-
tion of the store for a depository of such goods, as a sole or
principal business/" In such an instance the keeping of a bar-
rel of oil for a short time in the back of the store, with bunches
of cotton yarn near it, was held not to prevent a recovery for
loss by fire of the goods insured/^ A policy denominated flax
as hazardous, and provided that the building^hould not l>e '' ap-
propriated, applied or used " for that purpose. The building
insured had been used for flax dressing machinery, but before
the policy was issued it had been removed and a cording ma-
chinery put in. A small quantity of nnl)r(:kpn flax remained
piled up in a corner of a room two days, during which the build-
ing was burned. It was held that these facts did not shoAV that
the building was " appropriated, applied or used " for storing
or keeping flax.'^" A policy provided that if the premises in-
sured " be used for the purpose of carrying on any trade,
business or vocation denominated hazardous, or extra haz-
ardous, or sjDecified in the memorandum of special rates in
the proposals annexed to the policy, or conditions denominated
68 New York, etc., Ins. Co., v. Co., 59 Mo. App. 204; Ackley v.
Langdon, 6 Wend. 62.3; Langdon v. Phoenix Ins. Co., 25 Mont. 272; 64
New York, etc., Ins. Co., 1 Hall Pa. Rep. 665.
(N. Y.) 226; Maril v. Connecticut to Moore v. Protection Ins. Co.,
Fire Ins. Co., 95 Ga. 604; 23 S. E. 29 Me. 97; 48 Am. Dec. 514; Phce-
Pvep. 463; 51 Am. St. Rep. 102; 30 nix Ins. Co. v. Taylor, 5 Minn. 492.
L. R. A. 835. 7iLeggett v. Aetna Ins. Co., 10
69 Renshaw v. Missouri, etc., Ins. Rfch. L. 202.
Co.. 103 Mo. 595; 15 S. W. Rep. 72 Hynds v. Schenectady, etc., Ins.
945; 23 Am.' St. Rep. 904; Colum- Co., 16 Barb. 119, affirmed 11 N. Y.
bia, etc., Co. v. American Fire Ins. 554.
INSURANCE. 813
hazardous or extra hazardous, or included in the special rates,
that the policy, while the premises were so used, should be of no
effect," and in the conditions oil and turpentine were denomi-
natcMJ hazardous, and spirits of turpentine extra hazardous, and
houses, buildings or repairing were included within the menior-
anduni of special rates of premiums ; it was held that the fact,
when the house was burnt, that painters w^ere employed in
repairing the house, for painting the inside, and for that pur-
pose these oils were kept in the house, while the work was going
on, such a quantity of paints, oil and turpentine did not avoid
the policy.'^ A mere privilege to use a gas apparatus, not
actually exercised, nor intended to be exercised, but in reality
abandoned, will not justify the insured in keeping and storing
gasoline in a place and manner other than that allowed in the
policy.'* Keeping articles to be exhibited or to be nscd as
means and instruments of the exhibition is not a use of the
building " for the pur]X)se of storing or keeping therein " such
articles within a clause of the policy relating to hazardous ar-
ticles.'^ In a Massachusetts case it was said that '' the word
' kept,' as used in the ]iolicy, irajdics a use of the premises as
a place of deposit for the prohibited articles for a considerable
period." ''^ A provision in a ]wliev jirohilnting the keeping of
any article considered hazardous was modified by endorsement
upon as follows : " Permission given to keep one barrel of ben-
zine or turpentine in tin cans . . . for use on the prem-
ises." One barrel of benzine was brought into the building,
and exploded while being emptied into a large tin can, causing
the building to be destroyed by the fire the explosion started.
It w^as held that the tem]X)rary bringing in of the barrel of
benzine was not a " kee]nng of benzine " in violation of the
73 0'Neil V. Buffalo Fire Ins. Co., 475; 33 N. E. Rep. 572; 35 Am. St.
3 N. Y. 122. Rep. 508; 19 L. R. A. 587, citing
T4 Liverpool, etc., Ins. Co. v. Gun- ^Yilliams v. Ins. Co., 31 Me. 219;
ther, 116 U. S. 113; 6 Sup. Ct. Rep. O'Neil v. Insurance Co., 3 N. Y.
306. 122; Williams v. Insurance Co., 54
-5 City of New York v. Hamilton X. Y. 569; 13 Am. Rep. 620; Mears
Fire Ins. Co., 10 Bosw. 537. v. Insurance Co.. 92 Pa. St. 15;
T" First Congregational Church v. Putnam v. Insurance Co.. 18
Holyoke. etc., Ins. Co., 158 Mass. Blatchf. 368; 4 Fed. Rep. 753.
814 OIL AND GAS.
terms of the policy.^^ It may be laid down as a general proposi-
tion that the nsual clauses in fii'e insurance policies prohibiting
the storing or keeping of certain hazardous articles have refer-
ence to a storing or keeping in a mercantile sense in consider-
able quantities, with a view to sales or traffic, or when storing
or keeping is the principal object of the deposit, and not where
the keeping is incidental and only for the purpose of consump-
tion.'^ To merely carry gasoline through a store to deliver it
at once, is not keeping it on the premises." To keep it on the
same lot but in a separate building is not keeping it on the
premises.**"
§708. Store.
Litigation over what is prohibited in policies placed on a
" country store " has been sharp and severe. These risks are
considered rather hazardous. A policy placed on such a store
is not avoided by the keeping of gunpowder and coal oil under
a provision prohibiting the keeping of such articles, where it is
sho^\m that such articles are usually kept in such a store.^^ A
policy insured a building occupied as a store and the merchan-
dise permitted to be kept in it, was such as was " usually kept
in a country store," except as was otherwise provided in the
policy. The clause " usually kept in a country store " was
written in ink. In the policy was a printed clause to the effect
that unless otherwise provided by agreement indorsed on it, it
should be void if (any usage of trade to the contrary) gasoline
was kept on the premises. The court held that if gasoline was
an article usually kept in a country store, during the day time,
for sale, the keeping of it on the premises for that purpose
did not avoid the policy. ^^ A policy placed on a stock of goods
"Maryland Fire Ins. Co. v. S. W. Rep. 598. See Ran v. Win-
Whiteford, 31 Md. 219. Chester Fire Ins. Co., 36 N. Y. App.
T8 Williams v. Fire Ins. Co., 54 N. Div. 179; 55 N. Y. Supp. 459.
Y. 569; 13 Am. Rep. 620. si American Fire Ins. Co. v. Nii-
■79 London, etc., Ins. Co. v. Fiseh- gent, 7 Ky. Law Rep. 597 ; Leggett
er, 92 Fed. Rep. 500. v. Aetna Ins. Co., 10 Rich. Law 202.
80 Fireman's Fund Ins. Co. v. 82 Yoch v. Home Mutual Ins. Co.,
Shearman, 20 Tex. Civ. App. 343; 50 111 Cal. 503; 44 Pac. Rep. 189; 34
INSURANCE. 815
in a country store contained a printed stipulation, that benzine
should not be kept without the consent of the insurer, but a
written clause provided that the policy covered such goods " as
is usually kept for sale in country stores." It was held that
proof was admissible to show that the prohibited goods came
within the written clause.*^ A clause in a policy rendering it
void if gasoline be kept on the premises was held to apply to
Avhere it was brought to the store to be used in a gasoline stove
in an upstairs room, having no connection with the store, but
reached by an outside stairAvay.®*
§709. Grocery.
If a policy placed on a stock of groceries kept for retail
prohibit the use of the building insured for the purpose of stor-
ing goods denominated hazardous or extra hazardous, the keep-
ing of oil for the purpose of retail, in quantities not unusually
large, is not a storing of oil within the prohibitory clause of
the policy.^^ A policy provided that it should be void if the
premises were used for storing or keeping on the premises any
article mentioned in the classes of hazards annexed to it, " ex-
cept as herein specially provided for, or hereafter agi'eed to by
the insurer in w^riting upon this policy." The court found, the
goods having been insured as " groceries," that the term " gro-
ceries " included a certain amount of such hazardous articles,
and held that they were so especially provided for in w^riting
on the policy.^*' A policy on a stock of merchandise prohibited
the keeping of petroleum on the premises. The insured kept
a barrel of petroleum on the premises for sale ; and the insur-
L. R. A. 857 ; Barnard v. National ss Langdon v. New York, etc.,
Fire Ins. Co., 27 Mo. App. 26; Me- Ins. Co., 1 Hall (N. Y.) 226; Ren-
chanics', etc., Ins. Co. v. Floyd, shaw v. Missouri State, etc., Ins.
20 Ky. L. Rep. 1538; 49 S. W. Rep. Co., 103 Mo. 595; 15 S. W. Rep.
543. 945; 23 Am. St. Rep. 904; New
83 Tubb V. Liverpool, etc., Ins. York, etc., Ins. Co. v. Langdon, 6
Co., 106 Ala. 651; 17 So. Rep. 615. Wend. 623; London, etc., Ins. Co.
84 Boyer v. Grand Rapids Fire v. Fischer 92 Fed. Rep. 500.
Ins. Co., 124 Mich. 455; 83 N. W. so Xi^j^^j-jj ^jj-g jjjs. Co. v. De
Rep. 124. Graff, 12 Mich. 124.
816 OIL AND GAS.
ance company insisted that this avoided the policy. The court
instructed the jury that " merchandise " included whatever it
was customary to keep in such a store, and, if a supply of petrn-
leum, such as was kept on the premises, was a part of the usual
stock of the store, the insured could recover. This was held
error, for the reason that by the express contract petroleum was
to be excluded." ' Where, after a policy was issued on a dwell-
ing house, a grocery was established in it, in which articles were
sold that were denominated " hazardous '' in the memorandum
attached to the policy, it was held, on a loss by fire, that the in-
sured was not entitled to recover.^*^
§710. Watchmaker.
Where a policy is issued on "' watchmaker's materials," it
may be shown by parol evidence that the words include small
amounts of benzine and kerosene, although the policy contains
a printed stipulation preventing the keeping and use of inflam-
mable substances. *° The same is true of a manufacturer of
brass clock works. ^°
§711. Furniture store. — Wagonshop.
The keeping of benzine for necessary use in a repair shop con-
nected with a retail furniture store will not avoid a policy cover-
ing the store and shop and the " furniture, upholstery goods,
and other merchandise, not more hazardous, usual to a retail
furniture store," although benzine is expressly prohibited in
the printed conditions of the policy."^ So where a paintshop
87 Birmingham Fire Ins. Co. v. so Bryant v. Poughkeepsie, etc.,
Kroegher, 83 Pa. St. 64; 24 Am. Ins. Co., 17 N. Y. 200, affirming 21
Rep. 147. To same effect Whit- Barb. 154.
march v. Charter Oak Fire Ins. Co., 9i Faust v. American, etc., Ins.
2 Allen 581; Cerf. v. Home Ins. Co., 01 Wis. 158; 64 N. W. Rep.
Co., 44 Cal. 320; 13 Am. St. Rep. 883; 30 L. R. A. 783.
165. A policy on a furniture store cov-
88 Davern v. Merchants', etc., Co., ers paints and varnish used to fin-
7 La. Ann. 344. ish the furniture, if usually kept by
89 Maril v. Connecticut Fire Ins. dealers. Haley v. Dorchester, etc.,
Co., 95 Ga. 604; 23 S. E. Rep. 463; Ins. Co., 12 Gray 545.
30 L. R. A. 835; 51 Am. St. Rep.
102.
CI *
INSURAiN'CE.
.vas tept o.er a wago.shop, both owned by the msu.ed and
operated together; and half a barrel of bennne was kept xn he
shop it was held that the printed condition prohrUtn.g the
keeping of benzine was vepugirant to the written clanse msnv-
ing them.®'
§712. Factory.
The nse of gasoline in a factory, in the bnsiness of the factory
owner, such nse being necessary, where only enongh is kept as
will be sufficient for a short time - as for a day - will not
avoid a policy prohibiting the nse of gasoline in such factory.
Snch was held to be the case where the policy was issued to a
silver plating company on its tools and machin«-y in the fac-
tory » In the case of a rope factory, where the (Xilicy pro-
vided that no oil should be used on the premises, the use of t^sh
oil which was necessary for the manufacture of a particulai
Mud of rope manufactured in the factory, was held not to avoid
the policy " A manufacturer of brass clock works may keep
all articles necessary to and usually employed in that manu-
facture although keeping such articles is set forth m the printed
LrTof the policy as e.tra hazardous.'^' And this is true of
any factory under a like policy.''
§713. Drug Store.
A policy issued on a drug store insuring " articles usually
kept for retail drug stores " covers gasoline, benzine, and ether.
The keeping of such articles in reasonable quantities on the in-
sured premises will not avoid the policy, though a printed con-
^r i,n„+«' Ptp Co 93 Bryant v. Poughkeepsie, etc.,
92 Archer v. Merchants, etc., Co., ^^^ ^y ^^ ^^ ^ ^^^^ affirming 21
43 Mo. 434. ■ ' , j^ Connecticut
93Fraim v. National Fire Ins. Barb 154 ^aril .
r. 170 Vi St 151; 32 Atl. Rep. Fire Ins. Co., 95 Ga. 604 -^ »
613 37 W. N. C. 39; Mears V. Eep. 463 ; 30 L. E. A. 83o.
^^"^' '. r n Q9 Pa St 9c. Yiele V. Germania Ins. Co.. 2b
15; 37 Am. Rep. d47.
94 Banmgardner v. Ins. Co., 1 W.
N. C. 119.
818 OIL AND GAS.
dition in it declares that unless otherwise provided by agreement
endorsed on or added to it, the policy shall he void if there he
kept benzine, ether, or gasoline, notwithstanding any custom or
usage of trade may permit them to be kept.^^ Where a whole-
sale and retail drug store was kept in the same building sepa-
rated only by a thin partition, and a policy was issued " on
their Avholesale stock of drugs, paints, oils, dyestufPs, and other
goods on hand for sale, not more hazardous, while contained in
the building," it was held that the word " wholesale " was sup-
plemented, and its meaning extended to " other goods on hand
for sale," not simply of the wholesale stock, but all other goods
" contained in the building." ^*
§714. Laundry.
The operation of a laundry is not a trad^ or manufacture
within a clause in a policy forbidding the use of gasoline, not-
withstanding any custom of trade or manufacture, so as to pre-
clude proof of a custom of the use of gasoline by the residents
of the community at the time the policy was issued, to explain
or avoid such prohibitory clause.'"'
§715. Patent Leather Factory.
A policy placed on a patent leather factory allowed benzole
to be kept in a shop detached from the building, and, as needed,
carried into the factory. Evidence was admitted of the cus-
tom in ■ other cities as to the way in which benzole was ordi-
narily carried into the factory, there being no evidence of a
different custom employed at the place where the factory was
located.^*'"
97Ackley v. Phoenix Ins. Co., 25 etc., Co., 110 N. C. 350; 14 S. E.
Mont. 272; 64 Pac. Rep. 665; Phoe- Rep. 790.
nix Ins. Co. v. Flemming, 65 Arli. 99 Northern, etc., Co. v. Crawford,
54; 44 S. W. Rep. 464; 39 L. R. A. 24 *Tex. Civ. App. 574; 59 S. W.
789. Rep. 916.
98 Wilson Drug Co. v. Phoenix, if>o Citizens' Ins. Co. v. McLaugh-
lin, 53 Pa. St. 485.
INSURANCE. 811)
§716. Painter. — Paintshop or factory.
A policy issued to a painter, keeping nothing except bis pro-
ductions, or his paints, oils, brushes, and other '' merchandise,"
covers articles of necessity and convenience, though they are
not kept for sale.^''^ A written rider attached to a policy pro-
vided that the insurance was against loss on " paints, oils, var-
nishes," etc., " and such other articles as are usually kept in a
sign painter's and carriage painter's and trimmer's shop." A
printed clause in the body of the policy provided that " this en-
tire policy, unless otherwise provided by agi-eement thereon, or
added hereto, shall be void ... if (any usage or custom
of trade or manufacture to the contrary notwithstanding) there
be kept, used, or allowed, on the above described premises, ben-
zine," etc. It appeared in evidence that benzine was usually
kept in ... a shop such as the one insured. It was held
that the prohibition with respect to benzine applied only when
the article was not insured, and by insuring the benzine it was
^' otherwise provided, by agreement indorsed on the policy " that
benzine might be kept on the premises.^"" If the written part of
a policy on a paint factory provides that it may be used for
'' hazardous or extra hazardous " purposes, it will control the
printed part prohibiting the keeping of benzine ; and the prem-
ises may be used as a paint factory in which benzine is used to
manufacture paints. ^''^
§717. Torch to remove paint from house.
A policy provided that naphtha should not be used on the
premises. The owner of the house employed a painter to paint
the house, find he, with the consent of the owner, used a naphtha
torch to remove the paint on the house preparatory to repainting
it. The building caught fire from the torch and was consumed.
Another provision in the policy provided that the circumstances
101 Hartwell v. California Fire Mascott v. First, etc.. Ins. Co., 60
Ins. Co., 84 Me. 524; 24 Atl. Rep. Vt. 116; 37 Atl. Rep. 255.
954. 103 Russell v. Manufacturers', etc.,
102 Mascott V. Granite, etc.. Ins. Ins. Co.. 50 Minn. 409; 52 N. W.
Co., 68 Vt. 253; 35 Atl. Rep. 75; Rep. 906.
820 OIL AISTD GAS.
affecting- the risk should not be so ahered as to cause an increase
of such risk. It was held that there was an alteration of " the
situation or circumstances affecting the risk." within the mean-
ing of the condition above stated ; that the risk had been in-
creased ; that although no naphtha was used in the house, it was
used '' on the premises " within the meaning of the prohibitory
clause ; that the only question for the jury was whether the use
of the naphtha and the change in conditions affecting the risk
occurred through making ordinary repairs in a proper and rea-
sonable manner, since such a provision in a policy is not in-
tended to prevent the making of such repairs by proper means ;
that a finding of the jury that the method used was " the method
ordinarily pursued to remove paint on the outside of a building
preparatory to scraping it off, to paint it," is not equivalent to
an affirmative finding on such question, for it assumes that the
removal of the old paint was reasonably necef&ary, and that the
particular building, as to the danger arising from moving the
flaming torch all over its external surface, was like ordinary
buildings ; that the insurance company could show by an expert
that the rates on a building whore paint is to be removed from
the outside by the use of a torch would have been higher than
if there was to be no such use ; that an expert may not testify
as to the actual effect of the use of naphtha in reference to
danger from fire, and that it was proper to admit the testimony
of an expert as to the proper and usual way of removing paint
from a building."* But where a policy provided that it should
be void if gasoline be " kept, used, or allowed " on the prem-
ises, it was held that keeping it in the building to be used in
filling gasoline torches for use in removing paint from the build-
ing, in order to repaint it, did not avoid the policy."^
104 First Congregational Churcli los Smith v. German Ins. Co., 107
V. Holyoke, etc., Ins. Co., 158 Mass. Mich. 270; 6.5 N. W. Rep. 236; 30
475 ; 33 N. E. Rep. 572 ; 35 Am. St. L. R. A. 368.
Rep. 508; 19 L. R. A. 587.
INSURANCE. °'^^
^718. Cleaning clothes.— Destroying vermin.
A policy on a dwelling house prohibiting the use of gasoline
does not prohibit the use of gasoline in small quantities by
members of the insured's family for the purpose of cleanmg
their clothes,'°« or destroying vermin.^''
§719. Cleaning or lubricating machinery.
Temporarily keeping on the premises small quantities of ben-
zine to use in cleaning machinery and needful light will not
avoid a policy prohibiting the keeping on the premises ben-
zine "^ Where oil was in constant use in the shop to lubricate
the machinery, according to the common usage, and the insurer
knew that practice, it was held that the insurer must have con-
tracted with reference to the practice, and that it was bound
even though oil thereafter was used for that purpose and the
policy expressly prohibited the keeping or using of oil on the
premises.
§720. Waiver by knowledge or acquiescence in use of building.
The knowledge of the company of the use the building was
being put to at the time the policy is placed uix)n it may amount
to a waiver of the prohibitory clause inserted m the ix)licy ;
for in such an instance the insurance company cannot success-
fully contend that the policy was avoided by the use of the
building in the manner prohibited in the policy. To do so
would be to practically deny, often, that the policy was ever m
force Thus a policy placed on a factory prohibited the use
of petroleum. At the time it was written the agent of the
company knew that the factory was to be run at night and
lio-hted by "headlight oil," a product of petroleum; and it was
held that the condition should be deemed to have been waived
.oecohunbia, etc., Co. v. Ameri- 92 Pa. St. 15; 37 An. Rep. 64'7.
can Fire Ins. Co., 59 Mo. App. 204. See O'Neil v. Buffalo Ins. Co.. 3 N.
10. La Force ^^'^f^^l^'^''^ ^\o''carlin v. ^Yestern. etc.. Co..
"i:sSa";."no;^ - CO., 5.Ml'5I5;40An..Kep.440.
822 OIL AND GAS.
by the company."" If the agent knows that the prohibited ar-
ticle is kept and is to be kept on the premises, the policy will
not be avoided."^ A policy prohibited the keeping of gun-
powder in the building insured, without a written permission,
and it also contained a clause that nothing less than a distinct
agreement, endorsed on the policy, should be construed a w^aiver
of any condition or restriction. At the time of the loss the
assured had a few^ pounds of gunpowder, which was kept in the
insured building with the knowledge and express consent of the
insuring company's local agent. A policy had been issued by
the same company on the same building, and the same agent
who knew gim powder was kept in the building, and that all
premiums had been paid to and accepted by the company, ex-
pressly permitted the keeping of the powder without calling the
assured's attention to the prohibitory clause. It was held that
the failure of the assured to have the writtiti consent of the
company indorsed, on the policy, under the circumstances, did
not render it void, for the condition had been waived. ^^" Where
an insurance company issued a policy on a woollen mill and its
contents, knowing at the time that naphtha was used and was
necessarily used in the business, it waived a printed condition
of the policy that it should be void if the assured uses naphtha ;
and after a loss the company was held estopped from setting up
the use of naphtha to defeat a recovery on the policy."''' If
the application shows the nature of the business carried on in
the building insured, and it is such a building as indicates the
character and the nature of the article to be kept in the build-
ing, so that the nature and extent of the risk must have been
110 Couch V. Rochester, etc., Ins. Western, etc., Co. v. Rector, 85 Ky.
Co., 25 Hun 469; Rivara v. Queen's 294; 3 S. W. Rep. 415; 9 Ky. L.
Ins. Co., 62 Miss. 720; Farmers'. Rep. 3; Bartholomew v. Merchants'
etc. Ins. Co. v. Nixon, 2 Colo. App. Ins. Co., 25 la. 507; 96 Am. Dec.
265; 30 Pac. Rep. 42; Kruger v. 65; American Fire Ins. Co. v. Nu-
Western. etc.. Ins. Co., 72 Cal. 91 ; gent. 7 Ky. Law Rep. 597.
13 Pac. Rep. 156. 112 Reaper City Ins. Co. v. Jones,
111 Peoria, etc.. Ins. Co. v. Hall, 62 Ml. 458.
12 Mich. 202; Kenton Ins. Co. v. ii3 Wheeler v. Traders' Ins. Co.
Downs, 90 Ky. 236; 13 S. W. Rep. (N. H.), 1 Atl. Rep. 293.
882; 12 Ky. L. Rep. 115. Contra,
iNSUEAisrcE. 823
known to the insurers to embrace articles and pursuits specified
as extra hazardous, the carrying on of a business in the building
designated as extra hazardous will not avoid the policy."* A
policy issued by a foreign insurance company prohibited the
storing in the building insured petroleum in excess of five gal-
lons without permission first endorsed on the policy. After the
policy was issued, the company's local agent gave the insured
verbal permission to keep on the premises more than five gal-
lons. A loss occurred under the policy, but not from the keep-
ing of the petroleum. In a suit on it there was evidence of a
mutual mistake of the insured and the agent as to the pro-
hibitory clause in the policy ; and it was held that it was proper
to submit the case to the jury on the ground of estoppel caused
by such mistake, as the agent alone could act in the State where
the policy was issued."^
§721. Waiver by knowledge of acquiescence in use of building
continued.
^N^otwithstanding the cases cited in the previous section, it
cannot be said that knowledge of the use the building is put to,
at the time the ix)licy is issued, will always prevent its for-
feiture ; nor can it be said that the cases are harmonious on the
question. Thus where a |X)licy was issued on a country store in
which gunpowder was at the time habitually kept and intended
to be kept, to the insurance agent's knowledge, who also repre-
sented that the provisions of the policy did not prevent the in-
sured keeping it, it was held that the policy was avoided because
of a clause in it prohibiting the keeping of gunpowder and
avoiding it if powder was kept in the building covered by the
policy."*' Where a policy on a stock of hardware and stoves
provided that no gasoline should be used or kept on the prem-
114 City of New York v. Brooklyn Ky. L. Rep. 3. Contra, Peoria, etc.,
Fire Ins. Co., 41 Barb. 231. Ins. Co. v. Downs, 90 Ky. 236; 13
115 Queer's Ins. Co. v. Harris S. W. Kep. 882; 12 Ky. L. Rep.
(Pa.), 2 Wkly. N. C. 220. 115; Birmingham Fire Ins. Co. v.
116 Western, etc., Co. v. Rector, Kroegher, 83 Pa. St. 64; 24 Am.
85 Ky. 294; 3 S. W. Rep. 415; 9 Rep. 147.
824 OIL AND GAS.
ises, and avoided it if it were so kept, and also provided that
no representative of the company could waive the use of its
provisions, except in certain cases by indorsement on the policy,
it was held avoided by the use of small quantities of gasoline
from time to time to illustrate the operation of gasoline stoves
offered for sale, although the local agent taking the application
and also the local board of underwriters, of which the insurance
company or its agents were members, knew of the practice of
the assured."^ The consent of a local agent, whose authority
is limited to soliciting insurance, delivering policies, and re-
ceiving premiums, to change the use of a building and use it for
a restaurant, which included the use of a gasoline stove, will
not amount to a waiver of the terms of the prohibitory clause/^^
The fact that the company 'knew there were no gas fixtures in
the house insured, and that the occupant immediately preceding
the issuance of the policy used a spirit lamp f^jr lighting such
house, was held not to constitute a waiver of the clause in the
policy forbidding the use of spirit gas.^^^ Where the insured
had kept fireworks in another store, knowledge of the insurance
agent of this fact at the time the policy was issued, was held to
be no waiver of a clause in the policy prohibiting the keeping
of them in the building insured/^" If there is nothing in the
application or description of the property which necessarily im-
plies or indicates the use to which it is or will be put, the
insurance company will not waive a condition in a policy pro-
hibiting the use of gasoline, nor consent to an existing use
which could have been ascertained by reasonable investigation/^^
Tlie fact that the rate charged was the same as that charged for
an adjoining building, which included a charge for the use of
gasoline, will not estop the insurance company from claiming
J 117 Fischer v. London, etc., Ins. na Minzesheimer v. Continental
Co.. 83 Fed. Rep. 807; affirmed, 92 Ins. Co., 5 Jones and S. (N. Y.) 332.
Fed. Rep. 500; Birmingham Fire 120 Georgia Home Ins. Co. v. Ja-
ins. Co. V. Kroegher, 83 Pa. St. cobs, 56 Tex. 366.
64; 24 Am. Rep. 147. i^i^IcFarland v. St. Paul, etc.,
"sGarretson v. Merchants', etc.. Ins. Co.. 46 Minn. 519; 49 N. W.
Co.. 81 Iowa 727; 45 N. W. Rep. Rep. 253.
1047.
IXSURAXCE. 825
a forfeiture for a breach of the condition against the use of gas-
oline, on the ground that it had constructive notice of such use,
the insured not having informed it of the use of the gasoline.^'^
A broker procuring insurance for the insured is not the com-
pany's agent; and his faihire to inform tlie insured that the use
of gasoline will avoid the policy will not estop the company; ^"^
nor will his knowledge of the use of forbidden articles on the
insured premises be a waiver of the forfeiture/"'
§722. Waiver by receiving premium with knovs^ledge of pro-
hibited user.
If a building be used for purposes prohibited by the policy,
and, with full knowledge of that fact, the insurer makes and
collects assessments on a premium note given for the insuranc?,
he will thereby waive the forfeiture/'^ This is especially true
if the agents of the company, at the time the policy was issued,
told the insured that an article prohibited by the terms of the
|X)licy might be used ; ^'^ or the company, being informed of the
prohibited use, declines to fix an increase rate of premiums, and
treats the contract as subsisting/"^ And it has been apparently
held that a failure to cancel a policy, under a clause allowing
the insurer to do so, after he has notice of the prohibited use,
will amount to a waiver of the right to defend because of such
§723. Waiver by adjusting loss or accepting proof without ob-
jection.
If there has been a forfeiture by the use or keeping of a pro-
hibited article on the premises, but the adjusting agent objects
i22Turnbull v. Home Fire Ins. 126 Carrigan v. Lycoming Fire
Co., 83 Md. 312; 34 Atl. Rep. 875. >is. Co., 53 Vt. 418; 38 Am. Rep.
i23Turnbull v. Home Fire Ins. ()87.
Co., 83 Md. 312; 34 Atl. Rep. 875. 127 Witte v. \Yestern. etc., Ins. Co.,
124 Kings Coimty Ins. Co. v. Rwi- 1 Mo. App. 188.
gert. 11 111. App. 590. 12s Farmers', etc.. Ins. Co. v. Nix-
i25Keenan v. Dubuque, etc., Ins. on. 2 Colo. App. 265; 30 Pac. Rep.
^o., 13 Iowa 375. 42.
826 OIL AND GAS.
to the proofs received solely upon the ground that they are not
made out in the form used by the company, and the proofs are
then made out on blanks furnished by him, the company will
waive its right to insist upon a forfeiture/'" So if the com-
pany require proof at the expense of the insured, without claim-
ing a forfeiture, there will be a waiver/''*' But where the policy
had ceased to have any effect by reason of the fact that the
insured had kept prohibited articles, it was held that" a promise
made by an agent, having authority to adjust and pay losses,
with knowledge that the prohibited articles had been kept in the
house at the time of the fire, was not a waiver that bound the
company/^^
§724. Insurance company's right of action to recover damages.
Effect of insurance on right of action.
If a company has insured the property destroyed by the negli-
gence of a gas company, and it has paid the loss and become sub-
rogated to the rights of the owner, it may maintain an action to
recover damages to the extent of the loss, or at least the amount
of the loss, it has paid, where the amount paid is less than the
loss sustained."- The fact that the property destroyed is fully
insured and the loss has been paid, does not prevent the owner
recovering damages from the gas company."^ From a reported
case it would seem that subrogation is allowed where an insur-
ance company pays the loss, even though the policy contain no
clause of subrogation.^^*
120 Northwestern, etc., Ins. Co. v. lignt Co.^ 18 N. Y. App. 447; 46
Germania Fire Ins. Co., 40 Wis. N. Y. Supp. 158; Lindsay v. Bridge
446. Water Gas Co., 24 Pittsb. L. J. (N.
130 Garrettson v. Merchants', etc., S.) 276; 14 Pa. Co. Ct. Rep. 181.
Ins. Co., 81 Iowa 727; 45 N. W. i34 German- American Ins. Co. v.
Rep. 1047. Standard Gaslight Co., 34 N. Y.
lii Phoenix Ins. Co. v. Lawrence Misc. Rep. 594; 70 N. Y. Supp.
4 Mete. (Ky.) 9; 81 Am. Dec. 521. 384; 67 N. Y. App. Div. 539; 73
132 Indiana, etc., Gas Co. v. New N. Y..Supp. 973. See Commercial
Hampshire, etc.. Co.. 23 Ind. App. LTnidn Fire Ins. Co. v. Lister, 23
298 ; 53 N. E. Rep. 485. Gas J. 364.
133 Armbruster v. Anburn Gas-
INSURANCE. 827
§725. Gas company causing fire liable to insurance company.
A gas or oil company negligently causing a loss by fire is
liable to an insurance company that "\vas liable to pay the owner
for the loss. The right of action is based upon the liability
of the company to the owner of the property destroyed.^^^ The
insurance company is subrogated, upon payment of the loss, to
all the rights of the insured."'' If the insured has released the
gas or oil company before payment is made by the insurance
company, then the latter cannot recover from the gas or oil
company causing the damages."^ If the insured release the
wrong-doer from all liability, he thereby releases the insurance
company; and if the release is in part, he releases the insurance
company to that extent.^''* If the loss is payable to a mort-
gagee of the property destroyed ; and the policy provides that by
no act of the owner of the property shall the policy be forfeited,
then upon payment of the amount due under the policy, not to
exceed the amount due on the mortgage, the insurance company
may foreclose the mortgage against the property, if the policy
as to such owner Avas avoided by his act.^^"
135 Insurance Co. of N. A. v. Fi- Granite Ins. Co., 63 Neb. 514 ; 73
delity, etc., Co., 125 Pa. St. 523; 16 N. VV. Rep. 950.
Atl. Rep. 791; 2 L. R. A. 580; i37 phoenix Ins. Co. v. Erie, etc.,
Svea, etc., Co. v. Packham, 92 Md. Co., 117 U. S. 312; 6 Sup. Ct. Rep.
464; 48 Atl. Rep. 359; 52 L. R. A. 750, 1176; Packham v. German Fire
95. Ins. Co., supra.
130 Insurance Co. of N. A. v. Fi- i38 Packham v. German Fire Ins.
delity, etc., Co.. supra; Niagara Co., supra; Aetna Ins. Co. v. Hum-
Fire Ins. Co. V. Fidelity, etc., Co., boldt, etc., Ry. Co., 3 Dill 2. Con-
125 Pa. St. 516; 16 Atl. Rep. 791; tra, People's Natural Gas Co. v.
Packham v. German Fire Ins. Co., Fidelity, etc., Co., 150 Pa. St. 8;
91 Md. 515; 46 Atl. Rep. 1066; 50 24 Atl. Rep. 339; Insurance Co. of
L. R. A. 828 ; Norwich Fire Ins. So- N. A. v. Fidelity, etc., Co., 123 Pa.
ciety V. Standard Oil Co.. 59 Fed. St. 523; 16 Atl. Rep. 791; 2 L. R.
Rep. 984; 8 C. C. A. 433; 19 U. S. A. 586.
App. 460; Hall x. Nashville, etc., "9 Badger v. Platts, 68 N. H.
Ry. 13 Wall 367; Sims v. Mutual,- 222; 44 Atl. Rep. 296; Traders'
etc., Ins. Co., 101 Wis. 586; 77 N. Ins. Co. v. Race, 142 111. 338; 31
W. Rep. 908; Omaha Ry. Co. v. N. E. Rep. 392.
828 OIL AND GAS.
§726. Inhaling gas, accident or life insurance policy.
Clauses in accident or life insurance policies often provide
that the company shall not be liable for injuries or deaths pro-
duced by inhaling gas. In such a case if the inhaling is done
while asleep or unconscious, it is considered that such a clause
is not violated, and a recovery is allowed. "° In the case just
cited the court declared that " in expressing its intention not
to be liable for death from ' inhaling of gas,' the company can
only be understood to mean a voluntary and intelligent act by
the insured, and not an involuntary and unconscious act. Read
in that sense, and in the light of the context, these Avords must
be interpreted as having reference to medical or surgical treat-
ment, in which ex vi termini would be included, the dentist's
work ; or to a suicidal purpose." ^*^ Where a provision of an
accident policy was that the company " does not insure against
the death or disability . . . arising from anything acci-
dentally taken, administered, inhaled, contact of poisonous sub-
stances, inhaling gas, or any surgical operation," it w^as held
that the company w^as not relieved from liability for a death
caused by inhaling illuminating gas which accidentally escajDed
into an hotel room where the insured w^as sleeping. " That pro-
vision in the ix)licy," said the court, " clearly implies voluntary
action on the part of the insured, or some other person. The
insured must take or inhale, or another must administer. The
manifest provision is to exempt the insurer from liability where
the insured has voluntarily and consciously, but accidentally
taken or inhaled, or something has been voluntarily admin-
istered which was injurious or destructive of life. We think
that the particular accidents intended to be excepted by that
provision are the accidental taking or inhaling into the system
of some injurious or destructive agency under the mistaken
belief that it was beneficial, or, at least, harmless. That is
more apparent by that portion of the provision which relates
i-iopaul V. Travellers' Ins. Co., y. U.-^S., etc., Co., 123 N. Y. 304;
112 N. Y. 472; 20 N. E. Eep. .347; 2,5 N. E. Rep. 399; 9 L. R. A, 617;
aflfirminEr 45 Him 313. reversing 3 N. Y. Supp. 237.
141 Affirmed in principle in Bacon
IXSURAXCE. 829
to something ' administered/ as it cannot be reasonably con-
strued as referring to a thing involuntarily and unconsciously
administered. Indeed, it is quite difficult to understand how
a thing could be involuntarily and unconsciously administered.
Coupled together as these provisions are, the same rule of con-
struction must be applied to that portion which relates to some-
thing accidentally inhaled as applies to the portion which relates
to a substance accidentally taken or accidentally administered.
All cases thus provided for plainly involve voluntarj^ and con-
scious action on the part of the insured, or some other person.
The leading and controlling idea in this provision is the ^Derform-
ance of a voluntary act which accidentally causes the death or
injury of the insured. That a proper construction of the policy
requires us to hold that it applies only to cases where something
has been voluntarily and intentionally, although mistakenly
taken, administered, or inhaled, there can, we think, be but
little doubt. As thus construed, this provision, manifestly,
did not exempt the defendant from liability in this case, as it
was admitted that the death of the insured was occasioned by
accidental means, and was caused by involuntary and accident-
ally breathing illuminating gas which had escaped into the
room where he was sleeping at the time of his death. The
argument that the provision as to inhaling gas has been given
the same effect as is now given to the other and more general
one, and that such could not have been their purpose, has little
force. The inhaling of gas having been si>ecifically provided
for when taken for surgical and like purposes, it is only when
it is inhaled for some other purpose, or under other circum-
stances, that the general provision applies. The special provi-
sion is applicable when gas is inhaled for surgical and like
purposes. The general provision applies when it is inhaled
for other purposes." ^*^
142 T^Ienneilley v. Employers', etc., ing 59 111. App. 297 ; Pickett v.
Corp 148 N. Y. 596; 43 X. E. Rep. Pacific, etc.. Ins. Co.. 144 Pa. St.
54; 31 L. Pv. A. 686; affirming 25 79; 'Z'! Atl. Rep. 871; Travellers'
N y Supp. 230; Fidelity, etc.. Co. Ins. Co. v. Dunlap. 160 111. 642; 43
V. Waterman. 161 111. 632; 44 N. N, E. Rep. 765. affirming 59 111.
E Rep. 283; 32 L. R. A. 654. affirm- App. 515 (unknowingly taking pois-
830
OIL AND GAS,
Death caused by inhaling gas in the atmosphere is regarded
as death produced b}^ a violent external agency within the
meaning of a provision of a jwlicy requiring the death to be
caused by external and violent means.^*^ And where the in-
surance company admitted that the death was caused by invol-
untary and accidental breathing of illuminating gas which had
accidentally escaped into the deceased's room; that, there were
no visible marks of the accident upon the body, but when
artificial respiration was produced, illuminating gas emanated
therefrom to the perception of the persons producing such
respiration ; and that on entering the room it was perceived
to be full of gas, and gas was still escaping, and that an inspec-
tion of the body showed life to be extinct, this was held to
authorize a recovery on the policy.^**
on) ; Healey v. Mutual, etc.. Co.,
133 111. 556; 25 N. E. Rep. 52 (un-
knowingly taking poison) ; Metro-
politan, etc., Assn. v. Froiland, 161
111. 30; 43 N. E. Rep. 766, affirm-
ing 59 111. App. 522; Picket v. Pa-
cific, etc., Ins. Co., 144 Pa. St. 79;
22 Atl. Rep. 871; Omberg v. U. S.,
etc., Association, 111 Ky. 303; 40
S. W. Rep. 909; Lowenstein v. Fi-
delity and Casualty Co., 88 Fed.
Rep. 474; affirmed 97 Fed. Rep. 17;
Healey v. Mutual, etc., Co., 133 111.
556; 25 N. E. Rep. 52. Contra,
Richardson v. Ins. Co., 46 Fed. Rep.
843; and see Kasten v. Interstate,
etc., Co., 99 Wis. 73; 74 N. W.
Rep. 534; 40 L. R. A. 651.
143 Paul V. Travellers' Ins. Co.,
supra; United States, etc., Co. v.
Newman, 84 Va. 52; 3 S. E. Rep.
805.
144 Menneilley v. Employers', etc.,
Corp., supra.
CHAPTER XXXII.
TAXATION.
§727. Scope of chapter.
§728. When corporate stock taxed, property of company exempt.
§729. Exempt as a manufacturing company.
§730. Gas mains of city plant taxed as personal property.
§731. Assessing franchise.
§732. Valuation of stock. — Certificates as to surplus.
§733. Kxemption of municipalities from taxation.
§734. Rates charged consumers not taxes.
§735. Cost of inspection of meters.
§736. Object of tax.— Ohio Statute unconstitutional.
§737. United" States revenue.
§738. Set off.
§739. Product in pipeline. Inter-state commerce.
§740. Exemption from taxation.
§741. Taxes on leases and minerals.
§727. Scope of chapter.
Xecessarilv this chapter must be limited to those cases in
which the subject of taxes, or rating, as it is called in England,
is peculiar to gas companies, gas and oil leases, or interests m
land, gas fixtures, pipes and works, and oil or gas when held
in pipes, tanks and reservoirs. It is manifest at a glance that
the power to impose taxes and the liability for them must
depend upon statutes in force at the place of taxation; and
that a decision construing one statute can afford little light m
construing another.
§728. When corporate stock taxed, property of company exempt.
The value of stock of a corporation is determined by the
value of property it represents. To tax both the stock and
the property would be double taxation, a thing that it cannot be
831
832 OIL AND GAS.
supposed the legislature intended. Where, therefore, the stock
of a gas company is taxed, the property it represents is not
taxable, and usually the property is such property as is neces-
sary to enable the corporation to execute the object and fulfill
the purposes for which it was chartered.^ Dwelling houses,
however, that were not necessary for the performance of a com-
pany's proper work and which had been built for the accommo-
dation of its working-men, has been held liable to taxation.^
§729. Exempt as a manufacturing company.
Under a statute ^ exempting from taxation " manufacturing
companies carrying on manufactures within " the State, an
artificial gas company organized, even before the statute was
enacted, is exempt from taxation ; and so is a foreign gas cor-
poration doing business within the State.'*
§730. Gas mains of city plant taxed as personal property.
The general rule is that gas mains of a city plant, laid in
the public streets do not become part of the real estate but
are jjersonal property, and taxable as such. They are personal
property and belong to the gas company, and are a part of the
usual and necessary appliances of such an establishment, with-
out which the gas manufactured could not be received or
delivered to the consumer.^ On the contrary it has been held
that reservoirs, hydrants and pipes of a water company are
real and not personal property, and are taxable in the town
in which they are situated.** In Iowa the entire plant is
1 Coatsville Gas Co. v. County of Assessors of Brooklyn, 6 X. Y.
Chester, 97 Pa. St. 476. Trans. App. 116; Commonwealth v.
- West Chester Gas Co. v. County Lowell Gaslight Co., 12 Allen 75 ;
of Chester, 30 Pa. St. 232. Covington Gaslight Co. v. City of
3N. Y. Act. 1880, Chap. 512, Covington. 84 Ky. 94; Shelbyville
Sec. 3. Water Co. v. People. 140 111. 545;
4 Nassau, etc., Co. v. Brooklyn, 30 N. E. Rep. 678; 16 L. R. A. 505.
25 Hun 567. ejJover v. Main Water Co.. 90
5 Memphis Gaslight Co. v. State, Me. 180; 38 Atl. Rep. 101; Con-
6 Coldw. 310: 98 Am. Dec. 452; simiers' Gas Co. v. Toronto, 27
People, ex rel Citizens', etc., Co. v. Can. S. C. 453; affirmed 23 Ont.
TAXATION.
8or>
assessed as a whole, including the pipes, in the city or township
where the main works are located.' In England gas-pnmpers,
gas retorts, pumps and exhausters are taxed as fixtures, but
meters are personal property.^ In England where the tax is
levied on the income after allowing certain deductions, where
the gas works were situated in one township and the pipes
extended into four other townships, it was held " that the ratable
value of the mains and pii>es, which would be the residue, after
deducting the net ratable value of the stations, works, buildings
and lands within the to^raship where situated from the value of
the whole ratable property of the company, must be apportioned
among the different to^vnships, not simply according to the
extent of the mains contained in each, but keeping in view also
the fact that part of them contributed directly, and part only
indirectly, to the profits/' ''' If the pipes are to be assessed
App. Rep. 551. (This Canadian de-
cision is controlled by a Statute
declaring that "' land .shall include "
all machinei-y or other things so
fixed to any outbuilding as to form
in law part of the realty." Consum-
ers' Gas Co. V. Toronto, 26 Ontario
Eep. 722.) Providence Gas Co. v.
Thurber, 2 R. I. 15; Riverton, etc..
Co. V. Haig, 58 N. J. L. 295; 33
Atl. Rep. 215; Paris v. Norway
Water Co.. 85 Me. 330; 27 Atl. Rep.
143 (taxable as real estate in the
town where laid, although the com-
pany's works are situated in an-
other town) ; People v. Martin, 48
Hun 193; Tidewater Pipe Line Co.
V. Berry, 53 X. J. L. 212; 21 Atl.
Rep. 490.
T Oskaloosa Water Co. v. Board,
84 Iowa 407; 51 X. W. Rep. 18.
8 Regina v. Lee, L. R. 1 Q. B.
241; 35 L. J. M. C. 105; 12 Jur.
(X. S.) 225; 13 L. T. (X. S.) 704;
14 W. R. 311.
9 Michael and Will on Gas and
Water (5 ed.). 53. See Regina v.
Mile End Old Town. 10 Q. B. 208;
3 Xew Sess. Cas. 13; 16 L. J. M. C.
184; 11 Jur. 985; Regina v. West
Middlesex Waterworks Co., 1 E. and
E. 716; 28 L. J. M. C. 135; 5 Jur.
(X. S.) 1159; Regina v. Sheffield
Consolidated Gaslight Co.. 32 L. J.
M. C. 100; 4 B. and S. 135; 9 Jur.
(X. S.) 623; 8 L. T. (X. S.) 692;
11 W. R. 1064; Sculcoates Union v.
Hull Dock Co. [1985]. App. Cas.
137 ; 64 L. J. M. C. 49 ; 71 L. T. 642 ;
43 W. R. 623; 59 J. P.. 612; 11
R. 74. See also Riverton. etc.. Co.
V. Haig. 58 X. J. L. 295: 23 Atl.
Rep. 215. where the court refused
to class the plant of a water com-
pany as a " farm " or " lot " so it
could be assessed in one district.
" The idea that they [the pipes]
may be considered appurtances to
the place of supply and taxable
there is untenable. There is no
principle upon which it can rest."
Paris V. Xorway Water Co.. supra.
Contra. In re Des Moines Water
Co.. 48 la. 324 ; Fall River v. Bristol
Co.. 125 Mass. 567; Oskaloosa Wa-
ter Co. V. Board. 84 la. 407; 51 N.
834 OIL AND GAS.
as real estate, the sale of the real estate of the company, other
than the pij^es, to pay the tax upon thera, is erroneous.^"
§731. Assessing franchise.
In Xew York a foreign gas company selling and distributing
gas to consumers, under authority from a municipality, natural
gas furnished by another company, whose property consists of
pipes and mains located beneath the surface of the street and
reservoirs built on a lot, must be assessed on its property as
real estate " at its full and true value " ; " and in determining
the value of the franchise granted by the municipality, and tlie
v'alue of the contract Avith the company for supplying the city
Avitli gas, cannot be considered.^"
§732. Valuation of stock. — Certificates as to surplus.
The value of the physical property of a gas company does
not necessarily determine the value of its stock ; nor does the
amount the stockholders would receive upon a dissolution of
the corporation. The privileges, rights, patents and franchise
of the company must also be considered in determining the value
of the stock.^^ Certificates of a stockholder's interest in the
surplus revenue of the company, reserving to the gas company
the right to redeem them upon notice of their face value, or by
the issue of ordinary' stock, are not taxable, since such surplus
is taxable to the company.^*
W. Rep. 18,: 15 L. R. A. 296; San 12 People v. Martin, 48 Hun 193.
Jose V. January, 57 Cal. 614; Fond The New York laws of 1855, Chap.
Du Lac Water Co. v. Fond Du Lac, 37, assessing the property of a for-
82 ,yis. 322; 52 N. W. Rep. 439; eign corporation, has no application
16 L. R. A. 581 ; Yellow River, etc., to such a case as is above stated,
Co. V. Wood County, 81 Wis. 554 as that statute applies only to per-
51 N. W. Rep. 1004. onalty. Ibid.
10 Capitol City Gaslight Co. v. i3 People ex rel Buffalo, etc., Co.
Charter Oak Ins. Co., siqjra. v. Steele, 56 N. Y^ 664; 1 Sheldon
For a short discussion of gas and 345.
water pipes laid in a public street, ^i4 People ex rel Williamsburg
see article by J. H. Beale in 4 Gas Co. v. Assessors of Brooklyn,
Harvard Law Review 83. 76 N. Y. 202; 16 Hun 196.
11 Laws 1881, Chap. 293.
TAXATION. 835
§733. Exemption of municipalities from taxation.
The property of a mnnicipality used in furnishing natural
gas to it and its citizens is exempt from taxation under a statute
exempting the property of a municipality from taxes.^^ But
where the constitution of a State provided that " there shall
he exempt from taxation public property used for public pur-
poses," it was held that a city's water or gas plant may be
taxed by the State, the same as it may tax any private corpora-
tion.^'' A statute exempting from taxation property of a city
used by it in furnishing its citizens with gas or water does
not apply to an independent company f'UiHiishing such inhab-
itants with gas or water,^^
§734. Rates charged consumers not taxes.
Rates or rents established by a municipal corporation to be
charged for the use of w^ater furnished by it are not taxes
which may be collected by the tax collector, even though the
water works are operated at a profit.
§735. Cost of inspection of meters.
A statute creating the office of a gas mctOr inspector, and
providing that his salary shall be paid by assessment upon the
various gas companies of the State, is valid, and does not violate
a constitutional provision providing that all taxes shall be
assessed upon property by a uniform rule. Such an assessment
is not a tax for general revenue. It is a charge for a special
15 Toledo V. Hosier, 54 Ohio St. 21 Ky. L. Rep. 42; 50 S. W. Rep.
418; 43 K E. Rep. 583; 35 Ohio 845; 51 S. W. Rep. 343; 45 L.
L. J. 215. R. A. 518. See also Wagner v. Rock
leNeeley v. City of Henderson Island, 146 111. 139; 34 N. E. Rep.
(Ky.), 55 S. W. Rep. 5.54. See 545; 21 L. R. A. 519.
Commonwealth v. McKibbon, 90 Ky. i7 Austin v. Austin Gaslight Co.,
384; 14 S. W. Rep. 372; Covington 09 Tex. 180; 7 S. W. Rep. 200; Xew-
V. Commonwealth, 19 Ky. L. Rep. port Light Co. v. City of Newport,
:05; 39 S. W. Rep. 836; 173 U. S. 14 Ky. L. Rep. 464; 20 S. W. Rep.
231; Newport v. Commonwealth, 434.
836 OIL AND GAS.
purpose growing out of the supervisory power of the State over
the gas companies' business."
§736. Object of tax, — Ohio statute unconstitutional.
The constitution of Ohio contains a provision declaring that
every statute imposing a tax shall state distinctly the object of
such tax,^** A statute of that State provided that in counties
of a certain population moneys arising from the tax on oil wells
should be returned to the township treasurer, not to exceed a
specified amount, for the exclusive purpose of repairing high-
ways. This statute was held to violate the provision of the
constitution referred to, for the reason that the tax on the oil
wells was raised for another s|D€cific purpose.""
§737. United States revenue.
4
An Internal Revenue Act of the United States "^ levied a
tax upon gas, but allowed the manufacturer of it to add the
tax to the cost charged the consumer. The City of Pittsburg
surrendered to a gas company certain shares of stock it held
in the company, in consideration of which the company agreed
to furnish it with gas " free from charge." Under this agree-
ment a large amount of gas was furnished on which the gas
company paid the tax, and then brought suit to recover the
amount from the city. But they were defeated, the court
holding that the city was not liable.^" This statute provided
that the gas made by the manufacturer " for his own use "
should not be taxable. \^Tiile it was in force the Philadelphia
gas works was held and operated by trustees, appointed by the
city, under a trust agreement. While the city had apparently
18 Cincinnati Gaslight Co. v. Barre v. Crystal Spring Water Co.,
State, 18 Ohio St. 237. 7 Kulp. (Pa.) 31.
Under its general "welfare i^Ohio Const., Art. 12, Sec. 5.
clause " a city cannot provide by 20 State v. Fangboner, 14 Ohio
ordinance that a water company Cir. Ct. Rep. 104; 7 Ohio Dec. 334.
shall be annually licensed and reg- '*^i 13 U. S. Stat, at L. 2G4, Sec.
istered, and pay a certain svim to 94.
the city for police purposes. Wilkes- 22 Qas Company v. Pittsbvu-g, 101
U. S. 219.
TAXATION,
837
the ultimate ownership of the gas works under this agreement,
until certain debts due from the city, contracted to build and
enlarge the works, were paid, they were to be held and managed
exclusively by these trustees, who were to sell gas to the city
at a certain price, and set aside all clear profits to provide a
sinking fund for the payment of the principal due the creditors.
It was held that gas furnished the city under this agreement
was ''made" and sold within the meaning of the statute so
as to render it liable to taxation.^^
§738. Set off.
A city, when sued for the amount it owes a gas company for
gas furnished it, cannot set off, when a statute provides that
a set off " can only be pleaded in an action founded on con-
tract, or ascertained by the decision of the court," against such
amount the delinquent taxes due it from such company; for
the reason that taxes " neither arise upon contract, either ex-
pressed or implied, nor is the amount thereof determinable by
the judgment of a court." "*
§739. Product in pipeline. Inter-state commerce.
A pipe line company transporting oil through its pipes from
one State to another, may be taxed in the latter State for the
privilege of doing business in that State; and the tax may be
a certain percentage of the receipts from the transportation
of the oil, such a tax not being an interference with inter-
State commerce.'''
23 City of Philadelphia v. Collec- Maine v. Grand Trunk Ry.. 142 U.
tor, 5 Wall 720. See Glasgow Gas S. 217; 12 Sup. Ct. Hep. 121. 163;
Comrs. V. Solicitor, at 3 Court of G. C. T. Railroad Tax Cases. 92
Sessions Rep. (4 Series) 857. U. S. 575; Western Union Tele-
24 Nebraska City v. Nebraska, graph Co. v. Massachusetts, 125 U.
etc., Co.. 9 Neb. 339; 2 N. W. Rep. S. 530; Cleveland, etc., Co. v.
87o! *" Backus. 133 Ind. 513; 33 N. E. Rep.
25 State V. State Board, 57 N. J. 421: 18 L. R. A. 729; affirmed 154
L. 516; 31 Atl. App. 220; 27 L. R. U. S. 439; 14 Sup. Ct. Rep. 1122.
A. 684. For analogous cases, see
838 OIL AND GAS.
^740. Exemption from taxation.
In Pennsylvania boilers, engines and derricks nsed for the
transportation of oil and to aid in its prodnction are exempt
from taxation by statute.'^ And so of companies transporting
natural gas to the public are exempt as to local taxes, being a
public corporation.-' Pipes of natural gas company laid in tbe
streets are exempt in this State.'^ And the buildings of a gas
company are also exempt from local taxation, if it pays taxes
to the State. -^ In Ohio gas wells, pipe lines, pumping stations
and machinery owned and used by a city for the conveyance of
gas to be consumed by it and its citizens generally are exempt
by statute ^° exempting all works, machinery, pipe lines and
fixtures belonging to any to^vn or city and used exclusively for
testing and lighting such town or city.^^ In California inas-
much as the franchise of a gas company is asSl^sed as a whole,'"
pipe lines running through a county to supply people of another
county are not subject to local taxation, for the reason that such
pipe line is not a franchise, being only a mere right of way.'^
Property not used for a public purpose, as a house for a tenant,
26 Mellon V. Alleghany Co., 3 Pa. for the purpose of furnishing prop-
Dist. Ct. Rep. 422. er water to the public shall be ex-
27 St. Marys Gas Co. v. Elk Co., enipted from local taxation will be
191 Pa. St. 458; 43 Atl. Rep. 321; liberally construed in favor of the
Ridgeway Light, etc., Co. v. Elk conlpan3^) Brush Electric Light
Co., 191 Pa. St. 465; 43 Atl. Rep. Co. v. Philadelphia, 8 Pa. Dist. Rep.
323; Mellon v. Alleghany Co., 3 231.
Pa. Dist. Rep. 422. The same rule prevails in New
28 Pittsburgh's Appeal, 123 Pa. York as to taxing locally the value
St. 374; 16 Atl. Rep. 621; Coots- of the franchise. People v. Brook-
ville Gas Co. v. West Chester Co., lyn Assessors, 19 N. Y. App. Div.
97 Pa. St. 476. 599; 46 N. Y. Supp. 388.
29 Schuylkill Co. v. Citizens' Gas so Rev. Stat., Sec. 2732.
Co.. 148 Pa. St. 162; 23 Atl. Rep. si Toledo v. Hosier, 54 Ohio St.
1055; West, etc., Co. v. Philadel- 418; 35 Ohio L. J. 215; 43 N. E.
phia, 3 Pa. Dist. Rep. 52; Spring Rep. 583.
Brook, etc., Co. v. Schadt. Co., 3 .'!2 San Jose v. January, 57 Cal.
Lack L. News 170. (In this case eti.
it was held that the rule which ss Spring Valley Waterworks Co.
measures the extent to which v. Barber, 99 Cal. 36 : 33 Pac. Rep.
property used by a water company 735; 21 L. R. A. 416.
TAXATION. 839
is not exempt from taxation in Pennsylvania ; ^* even houses
of the workingmen of the company owned by it are not ex-
empt.^^
§741. Taxes on leases and minerals.
If there is no covenant on the part of the lessee to pay the
taxes on the landowner's interest in the premises, he is not
hound to do so,^*^ unless same statute especially fixes that burden
upon him.^" The lessor pays the value of his own interest in
the land ; and the lessee the value of his interest in them under
the lease, which includes the improvements he has put upon
the land premises in the operation of them under the lease."''
In no event can the land be assessed higher by reason of the
two interests being owned by two persons than if they were
owned by one of them.^'' When the entire premises is owned by
one person the value of the mineral underneath the surface
cannot be assessed separate and apart from the landowner's
remaining interest in the land.*" But the lease may provide
that the lessee shall pay all the taxes assessed against the entire
premises. Thus where a lease of coal land which created a
divided ownership of the coal and surface provided that the
lessor should pay all taxes on the leased land, it was held that
the lessee was liable for the taxes assessed u|X)n the lands while
in possession and exploring them, though no ore was found and
the lease was subsequently declared forfeited.*^ A covenant
by the lessee to pay taxes does not cover a local municipal assess-
34 iScliuylkill County v. Citizens' Storey County. 1 Xev. 105 ; Flory
Gas Co., 148 Pa. St. 162; 23 Atl. v. Heller, 1 Monaghan (Pa.) 478;
Rep. 1055. Miles v. Delaware, etc., Co., 140 Pa.
35 West Chester Gas Co. v. dies- St. 62.3; 21 Atl. Rep. 427; Wood-
ter Co., 30 Pa. St. 232; Ridgeway ward v. Delaware, etc., Co., 121 Pa.
Light and Heat Co. v. Elk Co., St. 344; 15 Atl. Rep. 622; State
supra. V. Moore. 12 Cal. 56.
se Sanderson v. City of Scranton, 39 Logan v. Washington Co.. 20
105 Pa. St. 469; Delaware, etc., Co. Pa. St. 373; City of Scranton v.
V. Sanderson. 109 Pa. St. 583. Gilbert. 16 W. N. C. (Pa.) 28.
37 Chevington & Bum Co. v. Lew- 40 City of Scranton v. Gilbert,
is, 10 W. N". C. (Pa.) 196. 16 W. k C. (Pa.) 28.
38Hecksher v. Sheafer. 17 W. N. 4i Gribbens v. Atkinson, 64 Mich.
C. (Pa.) 323; Hale, etc., Co. v. 351 ; 31 N. W. Rep. 570.
840 OIL AND GAS.
ment to defray the cost of sewer, or the payment for the cost of
grading a street.*" Where a party was seized of what is called
in Pennsylvania unseated land subject to a mineral reservation
of oil and mineral rights, it was held that there was no such
a personal obligation of the owner to pay taxes as rendered him
liable to the owners of the oil or mineral rights for taxes paid
by him to prevent a sale, there being no snch a community of
interest between them as implied a promise to pay.*^ After
mineral has been severed from the soil it becomes the personal
property of the lessee, and is taxable to him.*^ Where a statute
provided that the person in possession of real estate, whether he
held its fee simple or as a life estate, should be deemed the own-
er for the purpose of taxation, it was held that a conveyance by
the owners of land of the oil and gas to a third person, upon con-
dition that the grantee pay a certain amount of money to the
grantors within a specified time after the completion of the
well on the land, and providing that if the money was not paid
within that time the grant should be void, that the right thus
given was taxable to the grantee as real estate.*^ In such an
instance an assessment of the lessee's or grantee's interest as
personal property is void.*** But where a statute provides for
the taxation of mineral in place the same as land, oil and gas
in the ground cannot be taxed to the person who has acquired
the right to drill for them for a certain time, and who is to
pay a specified amount of them as royalty.*^ A tax law provid-
ing that the words personal property shall include all fixtures
42 Pettibone v. Smith, 150 Pa. St. takes an estate in the land that is
118; 24 Atl. Rep. 693; Delaware, assessable as such. Moore's Appeal,
etc., Co. V. Von Storch, 196 Pa. St. 4 Pa. Dist. Rep. 703.
102; 46 Atl. Rep. 375. -is State v. Low, 46 W. Va. 451;
43Neill V. Lacy, 110 Pa. St. 294; 33 S. E. Rep. 271.
1 Atl. Rep. 325; Powell v. Lantzy, 46 Carter v. County Court, 45 W.
173 Pa. St. 543; 34 Atl. Rep. 450. Va. 806; 32 S. E. Rep. 216; 43 L.
44 Forbes v. Gracey, 94 U. S. 762. R. A. 725.
In Pennsylvania it has been held 47 Jones v. Wood. 2 Ohio Dec. 75;
that a lessee's estate is not assess- 9 Ohio Cir. Rep. 560; 6 Ohio Cir.
able as land conveyed to a grantee; D«<?. 538. reversing 1 Ohio N. P.
but Avhere the lessee is in fact the 155; Moore's Appeal, 4 Pa. Dist.
grantee of an interest in the coal. Rep. 703.
oil or gas underlying a tract, he
TAXATION. 8-11
attached to land, not included in the valuation of such land as
entered upon the proper tax duplicate, all appliances used in
producing oil, such as pump, tanks, boilers, are taxable as
personal property.** Coal in place belonging to one not o^vning
the surface under which it lies may be assessed as land apart
from the surface.'*'' And the word " held " in a statute pro-
viding that when coal or gas privileges are " held by a party or
parties, company or association, exclusive of the surface, the
same shall be assessed separately to such " party or association,^"
must be construed as " owned," and such privileges or interest
cannot be assessed to a mere lessee.^^
48 Carter v. County Court, supra. ci United States Coal, etc., Co. v.
49 Consolidated Coal Co. v. Baker, Randolph County Court, 38 W. Va.
135 III. 545; 26 N. E. Rep. 651. 201; 18 S. E. Rep. 566.
50 Acts of W. Va., 1891, Chap. 36,
Sec. 4.
CHAPTER XXXIII.
MISCELLANEOUS.
§742. Artificial gas statutes do not relate to natural gas.
§742. Larceny of gas.
§744. " Shut ofl gas," meaning.
§745. Contract for purchase of oil.
§746. Term " fire proof oil " as a trademark.
§747. Gas company's liability for supplies.
§748. Gas not a necessary of life.
S742. Artificial gas statutes do not relate to natural gas.
^ 4
Statutes relating to the manufacture and supply of gas en-
acted before natural gas was discovered in this country, as a
rule do not apply to natural gas companies. In ]S«^ew York
it has been held that a statute enacted in 1890, authorizing
the formation of corporations for manufacturing and supplying
gas for lighting streets and for buildings, and providing a
penalty if they refused to supply gas to consumers on applica-
tion, did not apply to natural gas companies incorporated under
the " business corporations law " of 1875.*^
§743. Larceny of gas.
To take artificial gas from a gas company with a felonious
intent is larceny, even though the taker take it on his o^vn
*i Wilson V. Tennent, 65 N. Y. 6, Sec. 60, of New York, a company
Supp. 852; affirmed 61 App. Div. may be organized to supply both
100; 70 N. Y. St. Rep. 2. gas and electricity; and under Laws
A corporation organized under 1892, Ch. 688, Sec. 32, a gas com-
the general corporation law of New pany may enlarge its powers so as
Jersey cannot conduct business as a to manufacture and supply elec-
gas company. Richards v. Dover, tricity. People v. Rice, 33 N. E.
(N. J. L.) ; 39 Atl. Rep. 705. Rop. 846; 138 N. Y. 151.
Under Laws 1890, Ch. 566, Art.
842
MISCELLANEOUS. 843
land by secretly opening the gas company's service pipe laid
therein for the purpose of supplying his house with gas. Thus
to insert a* pipe in the service pipe throngh which the gas flows
to the burner direct and not through the meter, with the felon-
ious intent to take it, and not pay for the same, is a larceny,
tJiere being a sufficient severance of the gas at the point of junc-
tion of the connecting pipe with the entrance pipe to constitute
an asporation. It is immaterial whether the service pipe is the
property of the taker or of the company." If the pipe be kept full
all the time, although the gas is repeatedly cut off at the point of
consumption, there is a continuous taking, and not a series of
separate takings ; and there will be a continuous taking, even
though the pipe has not been kept full, for it is usually substan-
tially all one transaction.^
§744. " Shut off gas," meaning.
The printed regulations of a gas company provided that " the
person sent to attend [to examine for leaking gas] is authorized
to shut off the gas." In an action for personal injuries brought
against a gas company, caused by an explosion of leaking gas,
it was held that the gas company could show by parol evidence
2 Regina v. White. 20 E. L. and is subject to private ownership,
Eq. 585; 17 Jur. 536; 3 Car. and K. there is no reason why the felon-
363; 6 CoxCr. Cas. 213; Dears. C. C. ious taking of it from the pipe
203; 22 L. J. (N. S.) 123; Beale's should not be a larceny, even a
Cas. 506 ; Commonwealth v. Shaw, taking from the pipe in the well
4 Allen 308; 81 Am. Dec. 706; should be so considered. But a tak-
Beale's Cas. 506 ; Regina V. Mitchell, ing from the earth, by drilling a
22 Gas J. 137; Regina v. Jenkins, 5 well would be a mere trespass. For
Gas J. 214; State v. Wellman. 34 larceny of water, see Ferens v.
Minn. 221. See also Phoenix Gas- O'Brien. 11 Q. B. Div. 21; 15 Cox.
light, etc., Co. V. Shillits, 19 Gas C. C. 332.
J. 848. As to such a concealment of a
•" Queen v. Firth, L. R. 1 Crown fraudulent taking of gas as will
Cas. Res. 172; People v. Wilber, 4 prevent the Statute of Limitations
Park. Cr. Rep. 19. running, see Imperial Gaslight and
So far as the writer knows, there Coke Co. v. London Gaslight and
are no decisions concerning the lar- Coke Co., 10 Exch. 39; 26 Ed L.
ceny of natural gas; but inasmuch and Eq. 425; 3 Gas J. 483.
as natural gas confined in pipes
844 OIL AND GAS
that the direction to '* shut off the gas " applied, in this con-
nection, only to shutting off gas from houses and not from
streets.*
§745. Contract for purchase of oil.
A refiner of oil, who purchases of a dealer, at current
prices, all the crude oil he may need during a particular year,
he agreeing to order more than a certain amount per month,
does not prohibit him from ordering, at any time during the
year, subject to the monthly limitations, such an nmount of oil
as he may need, for the entire year. He is bound to withhold
his orders until he actually needs the oil ; and if the vendor
refuses to fill such orders, to the extent of the amount of oil
proved to be needed, he is liable.^
§746. Term " fire proof oil " as a trademark. .
The term " Fire Proof Oil " cannot be claimed successfully
as a trademark for an illuminating oil. The reason is that
such words are descriptive of oil, which is not inflammable, al-
though it is not literally proof against fires."
§747. Gas company's liability for supplies.
A corporation organized to manufacture and supply illum-
inating and heating gas may purchase the right to use and
deal in steam-heaters, radiating mantels, and gas consuming
appliances, if such purchases are advantageous to its business
4 Bartlett v. Boston Gaslight Co., was taking off gas from the leased
117 Mass. 533. premises in violation of the terms
Under a statute declaring it un- of the case; and it was held that
lawful for any person to turn ofi' the lessor could not shut off the
any valve belonging to any person gas, but, to secure relief, must re-
furnishing gas to consumers with- sort to his legal remedy,
out permission of the owner, the 5 Willoek v. Crescent Oil Co., 184
doing of the act, without consent. Pa. St. 245; 28 Pittsb. L. J. (N. S.)
is unlawful, without any reference 35^ 39 Atl. Rep. 77.
to the intent of the doer. State v. 6 Scott v. Standard Oil Co.. 106
Moore, 27 Ind. App. 83; 60 N. E. Ala. 475; 19 So. Rep. 71; 31 L. R.
Rep. 955. In this case the lessee A. 374.
MISCELLAXEOUS. 84o
as a manufacUirer ami distributor of gas/ If it purchase gas
pipes to be of good material and workmanship and they are
defective and with flaws so gas escai>es, and it lay such pipes
hi the soil without knowledge of the defects and flaws, it
may recover damaaes from the vendor, or recoup them when
sued for the price of the pipes, which will cover the cost ol
taking out the pipes to replace them with others, including the
relaying of new pipes.*'
§748. Gas not a necessary of life.
Where a husband left his wife, and she continued to use gas
in the house as usual, it was held that he was not liable lor
the gas thus used."
TMalone v. Lancaster, etc., Co., « Smith v. Citizens', etc., Co., 5
182 Pa. St. 309; 40 W. N. C. 4.34; W. N. C. 97. , , o.
14 Lane. L. Rev. 321; 15 Nat. Corp. o Kettening Gas Co. v. Leach, 24
Rep. 98; 37 Atl. Rep. 932. Gas. J. 503.
APPENDIX.
GAS AND OIL LEASES AND AGREEMENTS. ^
INDIANA.
GRANT OF OIL AND GAS.
IN CONSIDERATION of the sum of Dollars, and the covenants
and agreements hereinafter contained first part, .hereby grant
unto second party, his heirs or assigns, all the oil and gas in and
under the following described premises, together with %e exclusive right
to enter thereon for the purpose of drilling or operating for oil or gas;
to erect, maintain and remove all structures, pipe lines, and machinery
necessary for the production and storage of oil, gas or water, namely: A
lot of land situated in the Township of County of in the
State of bounded and described as follows containing
acres, more or less.
The above gi'ant was made on the following terms:
Should oil be found in paying quantities upon the premises, second
party agrees to deliver to the first party in the pipe line with which he
may connect the well or wells, the part of all the oil saved from
said premises.
If gas only is found, second party agrees to pay each year for the
produce of each well while the same is being used ofi' the premises, and
first party shall ha^e gas free of expense to light and heat the dwellings
on the premises.
The second party shall have the right to use sufficient gas or water to
run all machinery used by him in carrying on his operations on said
premises, and the right to remove all his property at any time.
If no well is drilled within from this date then this grant shall
become null and void unless second party shall pay to the first party
for each thereafter such completion is delayed
IN WITNESS WHEREOF, The parties have hereunto set their hands
this day of A. D. 190. ..
Witness : -
846
APPEXDIX. 847
OIL AND GAS GRANT.
IN CONSIDERATION of the sum of Dollars, the receipt of which
is hereby acknowledged first part.. hereby grant unto
second party, its successors and assigns, all the oil and gas in and under
tiie following described premises, together with the right to enter thereon
at all times for the purpose of drilling and operating for oil. gas and water,
and to erect and maintain all buildings and structures, and lay all pipe
necessary for the production and transportation of oil, gas and water
from said premises. E.xcepting and resendng, however, to first part.. the
part of all oil produced and saved from said premises, to be deliv-
ered in the pipe line with which second party may connect its wells,
namely: All that certain lot of land situated in the Township of
County of in the State of bounded and described as follows,
to-wit : containing acres more or less.
Second party agi'ees, if gas is only found, to pay Dollars each
year, in advance, for the product of each well while the same is being
used off the premises, and first party to have gas free of cost to heat
stoves in dwelling house during the same time.
Whenever first part.. shall request it, second party shall bury all oil
and gas lines, and pay all damages done to growing crops by reason of
burying and removing said pipe lines.
No well shall be drilled nearer than feet to the house or barn on
said premises, and no well shall occupy more than one acre.
In case no well is within from this date., then this grant
shall become null and void, unless second party shall pay to said first
part Dollars in advance for each thereafter such
is delayed.
The second party shall have the right to use sufficient gas, oil and water,
for all their operations, and also the right to remove all its property at
any time, including the right to draw and remove casing
All covenants and agreements herein set forth between the parties
hereto shall extend to their successors, heirs, executors and assigns.
IN WITNESS WHEREOF, The parties hereto have hereunto set their
hands and seals this day of A. D. 19. ..
(Seal)
(Seal)
(Seal)
STATE OF INDIANA,
COUNTY OF
On the day of A. D. 19. ., before me, the subscriber, a
in and for said county, personally appeared to me known to
be the person named in. and who executed the foregoing instrument, an;!
in due form of law acknowledge the same to be act and deed, for th<>
uses and purposes therein mentioned, and desired that it might be re-
corded as such.
Witness my hand official seal.
(Seal)
848 OIL AND GAS.
OIL AND GAS GRANT.
IN CONSIDERATION of the sum of Dollars, the receipt of which
is hereby acknowledged first part . . hereby grant. . unto
second part. ., successors and assigns, all the oil and gas in and under tiie
following described premises, together with the right to enter thereon at ail
times for the purpose of drilling and operating for oil. gas and water, and
to erect and maintain all buildings and structures, and lay all pipe neces-
sary for the production and transportation of oil, gas and water from said
premises. Excepting and reserving, however, to first part.. the part
of all oil produced and saved from said premises, to l)e delivered in the
pipe line with which second party may connect the wells, namely: All
that certain land situate in the Township of , County of , in
the State of Indiana, described as follows, to-wit : containing
acres more or less.
This grant is made for the period of five years fi-om this date and as
much longer as oil or gas is found in paying quantities under the terms
and conditions herein contained.
Second part, .agree. ., if gas only is found, to pay Dollars each
year, payable in advance, for the product of each \\4ll while the same
is being used oflf the premises, and first part.. to have gas free of cost, at
the well, for domestic purposes on the farm.
Whenever first part, .shall request it. second part, .shall bury all oil and
gas lines, and pay all damages done to growing crops bj' reason of burying
and removing said gas lines.
No well shall be drilled neared than feet to the house or barn on
said premises, and no well shall occupy more than one acre. The first
part, .shall fully use and enjoy said premises for farming purpcses, except
such parts as may be necessary for said operations.
In case no well is within from this date, then this grant shall
become null and void, unless second part . . shall pay to said first part . .
in advance for each thereafter such is delayed.
Payments to be made as herein provided may be made direct to first
part, .or deposited to first party's credit in
It is understood and agreed between the parties hereto, that, second
part, .by giving to first part, .thirty days' notice in writing of a desire to
surrender this grant, may do so upon the payment to first part.. of the
sum of one dollar and releasing the same of record, and thereby be released
from all further liabilities hereon.
The second part.. shall have the right to use sufficient gas, oil and
water, for all operations hereunder, and also the right to remove all
property at any time, including the right to draw and remove casing.
All covenants and agreements herein set forth between the parties
hereto shall extend to their successors, heirs, executors and assigns.
APPENDIX. ^'^'^
In Witness Whereof, the parties have hereunto set their hands and
seals, this day of A. D. 190...
Witness :
(Seal)
(Seal)
(Seal)
(Seal)
STATE OF INDIANA, COUNTY OF , ss :
Before me the undersigned Notary Public, personally appeared the
within named and severally acknowledged the execution ot
the foregoing instrument to be free act and deed
Witness my hand and official seal, this day of ^^^■••^g^^^)
Notary Public.
Commission expires 190- ••
STATE OF INDIANA, COUNTY OF ss:
Before me the undersigned Notary Public, personally appeared the
wifhin named and severally acknowledged the execution ot
the foregoing instrument to be free act and deed^
Witness my hand and official seal, this day ot i-iu. ..
.... (Seal)
Notary Public.
Commission expires 190.
OIL OR GAS LEASE.
, . , • 1 ^t A n 1 QO bv and between
THIS LEASE, Made this day of A. U. IJU. ., oy a
of the County of and State of Indiana of the first part.
and Tlie Hancock Oil Company of the second part,
WITNESSETH, That the said part, .of the first part, in consideration o
$1.00 in hand paid, the receipt of which is hereby -"^--^^^f;-;";^^ '^^
stipulations, rents and covenants hereinafter contained, on the part of Uie
aMparty of the second part, his executors, administrators and assigns
to be pakl kept and performed, have granted, demised and let unto Uie
aid pa ty of The second part, his executors, administrators and ass gns^
th sole and only purpose of drilling and operating for Petrc. um
Oil or Gas for the term of years with the privilege ^i^ ■-■ ■ J'^^^
?h re fter on the same terms and conditions at the option of the les.e.
s'd lessee to give thirty day's notice in writing before t^- exp-ti^^^^^^^^
said year of its intention to avail itself of said option, or as long there
Tf er as Oil or Gas is found in paying quantities, all that certain tract of
and situated in Township .County, State of Indian. Bei^
the .Containing acres, more or less; excepting and reseiv
ing' therefrom acres around the buildings «^ ^-'^/^-^^^Virbe
which there shall be no wells drilled; the boundaries of which shall be
designated and fixed by the part, .of the first part.
The said second party hereby agrees in consideration of the W lease of
the above described premises, to give said first part • . "^fjf ^J^^^^;,^
of all the oil or mineral produced and saved from said premises, except for
850 OIL AND GAS.
operating purposes on the premises, delivered in tanks or pipe lines to the
credit of first part... And further agrees to give $ per annum for
the gas from each and every well drilled on the above described premises,
in case the gas be found in quantity to transport off the above described
premises, and convey to market, which the second party is to be the sole
judge thereof. The said second party not to unnecessarily disturb growing
crops thereon, or the fences.
Said second party has the right, which is hereby granted him, to enter
upon the above described premises at any time for the purpose of mining
or excavating, and the right of way to and from the place .of mining or
excavating and the right to lay pipe lines for the purpose of conveying or
conducting water, steam, gas, or oil over and across said premises, and
also the right to remove at any time any or all machinery, oil well supplies
or appurtenances of any kind belonging to the said second party
The party of the second part agrees to commence one well
from the date hereof (unavoidable accidents and delays excepted), and
in case of failure to commence one well within such time, the party of the
second part hereby agrees to pay thereafter to the part, .of the first part
for any future delay, the sum of dollars per annum as a rental on
the same thereafter until a well is commenced or the premises abandoned,
payable at and the part.. of the first partj^hereby agree.. to
accept such sum as full consideration and payment for such yearly delay
until one well shall be commenced, and a failure to commence one well or
to make any of such payments within such time and at such place as
above mentioned, renders this lease null and void, and neither party
hereto shall be held to any accrued liability, otherwise to be and remain
in full force and virtue.
It is understood by and between the parties to this agreement that all
conditions between the parties hereto shall extend to their heirs, executors
and assigns.
IX WITNESS WHEREOF, We, the said parties of the first and second
part, have hereto set our hand and seals the day and year first above
written.
(Seal)
(Seal)
THE COMPANY,
Attest : ; By
Secretary. President.
STATE OF INDIANA.
COUNTY OF
Before me, the undersigned, a Notary Public in and for said county.
this day of 190. ., personally appeared and
the Hancock Oil Company by its offieers. William C. Dudding. President,
and Ephraim Marsh, Secretary, and acknowledged the execution of the
foregoing agi-eement. >.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial
Seal, this day of , 190. ..
Notary Public.
APPENDIX. °^^
AGREEMENT TO DRILL WELL.
AGREEMENT made and concluded this day of . . . .1899 by and
between The Rowland-Zeighvr Oil Co., of Montpelier, Ind., party of the
first part, and of party of the second part.
WITNESSETH, the first part hereto agiees to furnish one wood ng,
the necessary drive pipe and casing on farm in Section. ... ^. in
h Township of... .County of in the State of Indiana. Also
shot rods pumping outfit and tank provided well proves a producer and
he 'second party hereto, in consideration of cents per foot (which
sum s to b'e paid to second part by first part when Job is completed m
arordance with the contract hereinafter set forth) agrees at his own
rand risk, furnishing all else that is necessary "/-P-^
pletion of an oil or gas well; and to effectually shut off all lesh water
C t"kin. the casing entirely tight, a test of the casing to be made by
use of the^Device known as the casing tester, by first part on- notice from
second part that the well is on top of the sand, and to dril said well into
the Trenton rock to any depth that the first part elects, not to exceed one
uindre^fe^^^ to cleanU after shot, on the following day f roni that on
'^ch the sh t is put in. fit up and start said well to pumping m first-class
^•ovided the well should prove a gas produ^r, to pack the ^^^^
material furnished bv first part for same, and making it an entiiely tight
™r And provided, further, that if neither gas or oil is found m paying
•ouantity and the first part would want the piping and casing pulled out
rsa d well, the second'party hereto agrees to plug the well in accordan e
with the la; and pull the piping without further <^^^^^^f^^^
the first part must pay for the use of the jacks or cutteis if the same
'"Tn'tlf event the second partv finds it necessary to have a water well
at the lid Tocatn, the fir'st part agrees to furnish the necessary casing
for the same, only.
KANSAS
OIL, GAS AND MINERAL LEASE.
THIS LEASE, Made between , party of the first part, and
parties of the second part, WITNESSETH that m con id^
eration of One^DoUar, the receipt of which is ^^^^^f^f' ^^'
the further consideration of drilling or excavating test ^;^^^;^;--
County. Kansas, for Oil, Gas and other minerals, or P^P-tn gjo. tl^^^^^^
minerals party of the first part hereby agree w^th P^^^ ^^^^^^
second part: That they shall have ^ ^ /^^f^/^f;/;; J Minerals
from this date to enter upon and operate for Oil Gas and oth
all that certain tract of land in township County,
described as follows, to wit:
852 OIL AND GAS.
Section Twp, Range, Acres Containing
acres, more or less, upon the following terms and conditions :
Second parties shall deliver in tanks at the wells to the first party without
cost, one-tenth of an Oil, produced on these premises; second parties shall
also pay Fifty Dollars per year for each Gas well of sufficient capacity to
utilize when used off the premises, and deliver on the dump, to the first
party without cost, one-tenth of all mineral produced on these premises.
If Oil, Gas or other Mineral is found in paying quantities in any well
drilled, the privilege of operating shall continue as long as Oil, Gas or
other Mineral shall be produced in paying quantities and when abandoned
tor such purposes this grant shall cease, and no longer be binding on
either party. If Gas is found on the above described land the party of
the first part is to have same for domestic purpose free. The second
party reserves the right to remove all machinery and fixtures placed
thereon by them. In case no Oil or Gas well is sunk or prospecting for
other Mineral done on these premises within five years from this date
this lease shall become absolutely null and void unless the second parties
shall from year to year continue this lease by paying or depositing to the
credit of the first party each year in advance Dollars at the
until a well is completed or other prospecting done on ihe premises
Party of the first part further agrees that for and in consideration of the
considerations and covenants above contained that second party at. .option
may any time within year from this date purchase the above de-
scribed property ty paying Dollars per acre and first party at such
payment agrees to deliver deed of above property free from all liens and
encumbrances whatsoever. It is understod by and between the fir.st and
second parties to this agreement that all the conditions between the parties
hereto shall extend to their heirs, executors and assigns.
IN WITNESS of which we hereunto set our hands and seal this the. . . .
day of A. D. 190...
(Seal)
Witnesses : ( Seal )
(Seal)
(Seal)
STATE OF KANSAS,
COUNTY OF
Be It Remembered, That on this day of 190. ., personally
appeared before me personally known to me to be the persons
who executed the foregoing instrument and said persons acknowledged the
execution of the same.
In Witness Whereof I hereunto subscribe my name and affix my official
^pal.
My Commission expires on the day of 190. ..
OIL AND GAS LSTASE.
IN CONSIDERATION of the sum of One Dollar, the receipt of which is
hereby acknowledged, and of the covenants and agreements hereinafter
contained first party, hereby grant unto Lanyon Zinc Company,
APPENDIX. 853
a New Jersey Corporation, second party, successors and assigns, all the
Oil and Gas in and under the following described premises, together with
the right to enter thereon at all times for the purpose of drilling and
operating for oil, gas or water, to erect, maintain and remove all build-
ings, structures, pipes, pipe lines and machinery necessary for the pro-
duction and transportation of oil, gas or water.
PROVIDED: That the first party shall have the right to use said
premises for farming purposes except such part as is actually occupied by
second party, namely: A lot of land situated in the township of
County of in the State of Section number Town-
ship number Range number containing acres, more
or less.
THE ABOVE GRANT WAS MADE ON THE FOLLOWING TERMS :
1st. Second party agrees to drill a well upon said premises, within one
year from this date, or thereafter pay to first party Dollars annually
until said well is drilled, or the property hereby granted is conveyed to
the first party.
2nd. Should Oil be found in pajdng quantities upon the premises,
second party agrees to deliver to first party in tanks or in the pipe line
with which it may connect the wells, the one-tenth part of all the oil pro-
duced and saved from said premises.
3rd. Should Gas be found, second party agrees to pay to first party
Fifty Dollars annually for every well from which Gas is used off the said
premises.
4th. The first party shall be entitled to enougli Gas free of cost for
domestic use in the residence on said premises as long as second party
shall use Gas off said premises under this contract, but shall lay and
maintain the service pipe at his own expense and use said Gas at his own
risk. The said party of the second part further to have the privilege of
excavating for water and of using sufficient water. Gas and Oil from the
premises herein leased to run the necessary engines for the prosecution
of said business.
5th. Second party shall buiy, when requested to do so by the first party,
all Gas lines used to conduct Gas off said premises and pay all damages
to timber and crops by reason of drilling or the burying, repairing or
removal of lines of pipe ovei' the said premises.
6th. No well shall be drilled nearer than feet to any building now
on said premises, nor occupy more than one acre.
7th. Second party may at any time remove all his property and
re-convey the premises hereby granted and thereupon this instrument shall
be null and void.
8th. A deposit to the credit of lessor, his heirs, executors or assigns
in Bank, to the account of any of the money payments herein pro-
vided for. shall be a payment under the terms of this lease.
9th. If no well shall be drilled upon said premises within five years
from this date, second party agrees to re-convey, and thereupon this
instrument shall be null and void.
10th. A failure by second party to comply with any of the above
conditions shall render this lease pull and void.
854 OIL AND GAS.
IN WITNESS WHEREOF, the parties liereimto have set their hands
and seal this day of A. D., 190...
Signed, sealed and delivered in the presence of
(Seal)
(Seal)
(Seal)
COMPANY.
; ' By (Seal)
COUNTY OF )
STATE OF KANSAS, C ss
BE IT REMEMBERED, That on the day of A. D., 190. .,
before me a Notary Public for the County and State aforesaid came
personally known to me to be the same persons who executed
the foregoing instrument and said persons duly acknowledge the execu-
tion of the same.
Witness my hand and official seal the day and year aforesaid.
My commission expires the day of A. D., 190. ..
, Notary Public.
OHIO
OIL AND GAS LEa\SE.
IN CONSIDERATION of the sum of Dollars, the receipt of which
is hereby acknowledged first part . . hereby grant unto
second party, successors or assigns, all the oil and gas in and under
the following described premises, together with the right to enter thereon
at all times for the purpose of drilling and operating for oil. gas or water,
and to erect and maintain all buildings and structures, and lay all pipes
necessary for the production and transportation of oil, gas or water from
or over said premises. Excepting and reserving, however, to first party
the part of all oil produced and saved from said premises, to be
delivered in the pipe line with which second party may connect wells,
_ namely: All that certain lot of land situated in the Township of
County of in the State of bounded and described as follows,
to-wit : '
To have and to hold the above premises, for the said purposes only, for
and during the term of twelve years, from the date hereof, and as
nnich longer as Oil or Gas shall be found in paying quantities.
If gas only is found, second party agrees to pay dollars each year,
in advance, for the product of each well while the same is being sold off
the premises, the first party to have gas free of cost at the well to heat
stoves in dwelling house during the same time.
Whenever first party shall request it, second party shall bury all oil
and gas lines, and pay all damages done to growing crops by reason of
burj'ing and removing said pipe lines.
No w^ell shall be drilled nearer than feet to the house or barn on
said premises, and no well shall occupy more than one acre.
APPETs^DIX. 855
In case no well is completed within from this date, then this grant
shall become null and void, unless second party shall pay to the said first
party dollars in advance 'for each year such completion is delayed.
The second party shall have the right to use sufficient gas, oil or water to
run all necessary machinery for operating said wells, and also the right to
remove all ot his property at any time.
It is expressly stipulated and agreed that the party of the second part
may, at any time in its option, in consideration and payment of one
dollar to the party of the first part, his heirs or assigns, surrender and
cancel this lease and terminate all right and rescind all obligations of
either and all of the parties hereto, their successors, heirs or assigns.
It is understood between the parties to this agreement that all conditions
between the parties hereunto shall extend to their heirs, excutors and
assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals this day of A. D., 190. ..
Signed, sealed and delivered in the presence of
.. (Seal)
(Seal)
(Seal)
STATE OF , COUNTY, SS:
Before me, , a in and for said Coimty and
State, personally appeared and acknowledged the execution of
the within lease to be voluntary act and deed.
WITNESS, My hand and Seal, this day nf 190 .. .
(Seal)
OIL AND GAS LEASE.
AN AGREEMENT, Made the day of A. D., 190.. between
of the County of and State of Lessor, .and
of Lessee. ..
WITNESSETH, That the lessor, in consideration of ONE DOLLAR,
the receipt of which is hereby acknowledged, and of other valuable con-
siderations do.. hereby demise, grant and let unto the lessee heirs
and assigns, all the oil and gas in and under the following described tract
of land, and also the said tract of land for the purpose and with the
exclusive right of operating thereon for said oil and gas, together with
the right of way, the right to lay pipes over, to use water from, and also
the right to remove, at any time, all property placed thereon by the lessee. .
which tract of land is situated in the of County of and
State of and is bounded and described as follows, to-wit:
To have and to hold the same imto the lessee, .heirs and assigns for the
term and period of year, .from the date hereof, and as much longer
as oil or gas is found in paying quantities thereon or the rental paid
by lessee.
The lessee .. shall pay to the lessor, .the part of all the oil pro-
duced and saved from the premises, and deliver free of expense into tanks
856 OIL AND GAS.
or pipe lines to the lessor's credit, and should any well j)roduce gas in
sufficient quantities to justify marketing, the lessor.. shall be paid at the
rate of dollars per year for such well so long as the gas thi-rcfroin is
sold.
If no well be completed on tlie above described premises witliin
from tlie date hereof, then this lease shall become null and void unless
tiie lessee, .shall tliereafter pay for further delay at the rate of
dollars per year until a well shall be completed. Said amount may be
paid in hand or by deposit to the lessor's credit.
The lessor to have sufficient gas for heating dwellings on said premises
free of charge at the wells. All pipe lines to be buried below plow deptii.
It is further agreed, tliat the lessee shall pay all damage done to growing
crops and shall operate the well witliin thicc mnntlis after said well is
completed.
It is fully understood bj' and In'tween the paities hereto, that the rights
and privileges herein conferred sliall be construed to mean simi)ly a lease
of privilege to drill and operate as above set forth, for gas and oil; and any
attempt, on the part of the second party, to exceed the privileges granted,
as so construed, shall render the same liable for tresplws; and, furtiiermore,
shall work a forfeiture of all tlie riglits conferred, and this instniiuent
shall become null and void.
IT IS FURTHER AGREED, That the lessee, .shall have the right at
any time to surrender this lease to the lessor.. and thereby be fully
discharged from any and all damages or claims whatsoever arising from
any neglect or nonfulfillment of the foregoing contract.
It is understood that all the terms and conditions between the parties
hereto shall extend and apply to their respective heirs, e.xecutors, admin-
istrators and assigns.
IN WITNESS WHEREOF, The said parties have hereunto set tlieir
hands and seal, the day and year first above written.
Sealed and delivered in the presence of
(Seal)
(Seal)
(Seal)
STATE OF OHIO
COUNTY OF I ^^•
On this day of A. D., 190.. before me, a in and for
said county, personally appeared the above named and ac-
knowledged that did sign and seal the within instrument, and that
the same is free act and deed for the purpose herein named.
(Seal)
GAS AND OIL LEASE.
IN CONSIDERATION of the sum of One Dollar, the receipt of whicii
is hereby acknowledged of of the First Part, hereby Grant and
Guarantee unto Second Party all the Oil and Gas in and under
the following described premises, together with the right to enter thereon
APPENDIX. 857
at all times for the purpose of Drilling and Operating for Oil and Gas and
to erect and maintain all buildings and structures and lay all pipes neces-
sary for the production and transportation of Oil and Gas. The First Party
shall have the one-eighth (1-8) part of Oil produced and saved from said
premises, to be delivered to the Pipe Line with which Second Party may
connect wells, namely: All that certain lot of land, in the Town-
ship of County of in the State of bounded and described
as follows, to-wit: containing acres, more or less.
To have and to hold the above described premises on the following condi-
tions, for and during the term of Five years from the date hereof and as
long after said term of years as Oil and Gas can be found on said real
estate in paying quantities or the rental is paid thereon as hereafter
herein provided.
If Gas only is found, in sufficient quantities to transport. Second Party
agrees to pay First Party One Hundred ($100) Dollars annually for the
product of each and every well so transported, and First Party to have
Gas free of cost for heating and lighting purposes in dwelling house.
Second Party shall bury all Oil and Gas lines when same interfere with
cultivation, and pay all damages done by reason of operating under this
grant.
It is agreed that Part.. of the Second Part is hereby given the option
to purchase the above described land at the sum of Dollars per acre
on or before the day of , 190. ..
In case no well is commenced within from this date, then this
grant shall become null and void unless Second Party shall thereafter pay
at the rate Dollars for each year such commencement is delayed.
A deposit to the credit of the First Party in will be good and suffi-
cient payment for any money falling due on this grant. First Party has
right to locate roads to and from places of operation
The Second Party shall have the right to use sufficient Gas, Oil and
Water to run all machinery for operating said Wells, also the right to
remove all its property at any time, and may cancel and annul this
contract or any undrilled portion thereof at any time upon payment of
One Dollar to said First Party and releasing the same of record.
It is understod between the parties of this agreement that all conditions
between the parties hereunto shall extend to their heirs, executors, success-
ors and assignees.
IN WITNESS WHEREOF, The parties hereunto set their hands and
seals this day of A. D., 190. ..
STATE OF INDIANA, COUNTY OF ss:
Before me , a Notary Public in and for said County, this
day of , 190. ., personally appeared the above named
to me Avell known, and acknowledged the execution of the above and fore-
going instrument to be their free act and deed.
Witness my hand and Notarial seal this day and year above written.
My commission expires 190 .. .
858 OIL AND GAS.
OIL AND GAS LEASE.
IN CONSIDERATION of the sum of One Dollar, the receipt of which
is hereby acknowledged, , of first part. ., hereby grant unto
, second party, all the oil and gas in and under the following
described premises, together with the right to enter thereon at all times
for the purpose of drilling and operating for Oil or Gas, and to erect
and maintain all buildings and structures, and lay all pipes necessary for
the production and transportation of Oil or Gas taken from" said premises.
Excepting and reserving, however, to first part.. the one-eighth (%) part
of all oil produced and saved from said premises, to be delivered in the
pipe line with which second party may connect his wells, namely: All
that certain lot of land situate in the township of Couniy of
in the State of , bounded and described as follows, to- wit:
containing acres, more or less.
To have and to hold the above premises on the following conditions: If
gas only is found, second party agrees to pay Dollars each year for
the product of each well while the same is being used off the premises, and
first party to have gas free of cost to heat stoves in dwidiing house
during the same time. 4,
In case no well is completed within fioiii this date, then this
grant shall become null and void, unless second party shall pay to said
first part Dollars annually for each year thereafter such well is
delayed.
The second party shall have the right to use sufTicient gas, oil or water,
to run all machinery for operating said wells, and also the right to remove
all its property at any time
It is understood between the parties to this agreement that all conditions
between the parties hereunto shall extend to their heirs, executors and
assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals this day of , A. D. 190. ..
(Seal)
( Seal )
(Seal)
(Seal)
STATE OF..
COUNTY OF.
Before me in and for said county aforesaid, personally ai3peared
and acknowledged the exectition of the foregoing lease.
Witness my hand and seal this day of , 190.
. f ^^-
APPENDIX. 859
OHIO AND PENNSYLVANIA
OIL LEASE.
[Entered according to Act of Congress in the year 188G, by J. A. Heydrick,
of Butler, Pa., in the Office of Librariati of Congress, at Washington,
D. C, and used by his permission.]
AGREEMENT, Made and entered into this day of A. D.
190.., by and between of the County of and State of
party of the first part, and party of the second part.
WITNESSETH, That the said party of the first part, for and in con-
sideration of the sum of Dollars, to him in hand well and truly paid,
the receipt of which is hereby acknowledged, and in further consideration
of the covenants and agreements hereinafter mentioned, does covenant and
agree to lease, and by these presents has leased and granted the exclusive
right unto the party of the second part, his heirs or assigns, for the
purpose of operating and drilling for petroleum and gas, to lay pipe lines,
erect necessary buildings, release and sub-divide all of that certain tract
of land situate in Township, County and State of and
bounded and described as follows, to-wit:
Bounded on the North by the lands of on the East by the lands of
on the South by the lands of on the West by the lands of
Containing acres, The party of the second
part, his heirs or assigns, to have and to hold the said premises for and
during the term of fifteen years from the date hereof, and so long there-
after as oil or gas can be produced in paying quantities.
The party of the second part, his heirs or assigns, agrees to give to the
party of the first part one-eighth part of all the petroleum obtained from
the said premises, as produced in a crude state, the said one-eighth part
of the petroleum to be set apart in the pipe line running said petroleum
to the credit and for the benefit of the said party of the first part. The
said party of tlie first part is to fully use and enjoy the said premises
for the purpose of tillage, except such part as shall be necessary for said
mining purposes, and a right of way over and across the said premises to
the place or places of mining or operating. The said party of the second
part is further to have the privilege of using sufficient gas and water from
the premises herein leased to run the necessary engines, the right to
remove any machinery, fixtures and buildings placed on said premises by
said party of the second part, or those acting under him. and is not to
put down any well for oil on the lands hereby leased within ten rods of
the buildings now on said premises without the consent of the said party
of the first part
IT IS AGREED, That if gas is found in paying quantities, the consid-
eration in full to the party of the first part for gas shall be Dollars.
per annum for the gas from each well Avhen utilized off the aforesaid
premises.
The party of the second part agrees to commence operations within
from the execution of this lease, or in lieu thereof thereafter pay to
the said party of the first part dollars per annum imtil work is
commenced
■■!
860 OIL AND GAS.
AND IT IS FURTHER AGREED, That the second party, his heirs or
assigns, shall have the right at any time to surrender up this lease, and be
released from all moneys due and conditions unfulfilled, then and from
that time this lease and agreement shall be null and void and no longer
binding on either party, and the payments which shall have been made
shall be held by the party of the first part as the full stipulated damages,
for the non-fulfillment of the foregoing contract; that all conditions be-
tween the parties hereunto shall extend to their heirs, executors and
assigns.
IN WITNESS WHEREOF, we, the said parties of the first and second
parts, have hereunto set our hands and seals the day and year first
above written.
Witness :
(Seal)
(Seal)
COIVIMON WEALTH OF.
COUNTY OF
BE IT REMEMBERED, That on the day of A. D. 190.
before me, a in and for said county, personally came the above
named and in due form of law acknowledged the above inden-
ture to be act and deed, and desired that the same might be recorded
as such.
(Seal)
AGREEMENT.
[Entered according to the Act of Congress in the year 1886, iy J. A.
Heydrick, of Butler, Pa., in the office of Librarian of Congress at Wash-
ington, D. C, and used with his permission.]
THIS AGREEMENT, Made and entered into this day of
A. D. 190. ., by and between of the fir.st part, and of the
second part.
WITNESSETH, That the said for and in consideration of the
sum of Dollars, to well and truly paid by the receipt and
payment of wliich is hereby acknowledged, has sold, granted, conveyed,
assigned, transferred and set over and by these presents do sell, gram,
convey, assign, transfer and set over unto the said heirs and assigns
interest in the within lease made by to on the
day of 190. ., with of the property, rights of property,
interest, powers and possessions of every kind therein conveyed, all and
singular, subject to the conditions therein specified
IN WITNESS WHEREOF, The parties have hereunto seir their hands
and seals the day and year first above written.
WiTXE.SS : ( Seal )
(Seal)
(Seal)
(Seal)
APPENDIX. 861
COMMONWEALTH OF.. )
COUNTY OF \^^^-
BE IT REMEMBERED,' That on the day of A. D. 190..
before me, a in and for said county, personally came the above named
and in due form of law acknowledged the above indenture
to be act and deed, and desired that the same might be recorded as
such.
(Seal)
OHIO AND WEST VIRGINIA
OIL LEASE.
AGREEMENT, made and entered into this day of A. D.,
190.., by and between of the county of and State of
party of the first part and party of the second part.
WITNESSETH. That the said part, .of the first part, for and in
consideration of the sum of Dollars to him in hand well and truly
paid, the receipt of which is hereby acknowledged, and in further con-
sideration of the covenants and agreements hereinafter mentioned, does
covenant and agi'ee to lease, and by these presents has leased and granted
the exclusive right unto the party of the second part, his heirs or assigns,
for the purpose of operating and drilling for petroleum and gas, to lay
pipe lines, erect necessary buildings, re-lease and sub-divide all that
certain tract of land situate in district; county and State of
and bounded and described as follows, to-wit :
On the North by lands of ; on the East by lands of ; on the
South b}' lands of ; on the West by lands of ; containing
acres Tlie party of the second part, his heirs or
assigns, to have and to hold the said premises for and during the term
of from the date hereof, and so long thereafter as oil or gas can
be produced in paying quantities, or rental paid thereon.
Tlie party of the second part, his heirs or assigns, agrees to give
to the party of the first part one-eighth part of the petroleum obtained
from said premises, as produced in the crude state, the said one-eighth
part of the petroleum to be set apart in the pipe line running said
petroleum, to the credit and for the benefit of the said party of the
first part. The said party of the first part is to fully use and enjoy
the said premises for the purpose of tillage, except such parts as shall
be necessary for said mining purposes, and a right of way over and
across said premises to the place of mining or operating. The said party
of the second part is further to have the privilege of using sufficient
gas and water from the premises herein leased to run the necessary
engines, the right to remove any machinery, fixtures and buildings placed
on said premises by said party of the second part, or those acting under
him, and is not to put do^vn any well for oil on the lands hereby leased
within feet of the buildings now on said premises without the consent
of both parties in writing.
862 OIL AND GAS.
Party of the second part agree to pay damage done to growing crops
by their operations on said premises.
IT IS AGREED, That if gas is found, in paying quantities, the con-
sideration in full to the party of the first part for gas shall be
Dollars per annvun for the gas from each well when utilized off the
premises of the parties of the second part.
Part . . of the first part to have gas for domestic purposes free by
making his own connections to well or wells. Party of the second part
to have privilege of disconnecting, pulling casing or abandoning said
well or Avells without becoming liable for any damage to party of first
part.
The party of the second part agree to commence operations within
from the execution of this lease, or in lieu thereof thereafter pay
to the said party of the first part until the work is commenced, pay-
able at
AND IT IS FURTHER AGREED, That the second party, his heirs
or assigns, shall have the right at any time to surrender up this lease,
and be released from all moneys due and conditions unfulfilled; then and
from that time this lease and agreement shall be null and void, and no
longer binding on either party, and the payments which shall have been
made be held by the party of the first part as the full stipulated damages
for the non-fulfillment of the foregoing contract ; that all conditions be-
tween the parties hereunto shall extend to their heirs, executors and
assigns.
IN WITNESS WHEREOF, We, the said parties of the first and second
parts, have hereunto set our hands and seals the day and year first above
written.
In Presence of
(Seal)
( Seal )
(Seal)
(Seal)
STATE OF WEST VIRGINIA,
COUNTY OF
To-WIT :
I , a of said county of , do certify that and
his wife, whose names are signed to the within writing, bearing
date the day of A. D., 190. .ha. .this day acknowledged tlie
same before me in my said county.
Given under my hand this day of A. D., 190..
THE STATE OF OHIO, J
COUNTY OF i^^-
Be it remembered that on the day of A. D., 190. .before me,
the subscriber, a in and for said coiuity, personally came
and his wife, and acknowledged the signing and sealing of the
foregoing instrument to be act and deed for the use and purposes
therein expressed.
APPEXDIX. 863-
In witness whereof I have hereunto set my hand and seal the day and
year above written.
OIL LEASE.
AGREEMENT, made and entered into this day of A. D.,
190. .by and between of the county of and State of pfirty
of the first part and party of the second part.
WITNESSETH, That the said part.. of the first part, for and in
consideration of the sum of Dollars, to him in hand well and truly
paid, the receipt of which is hereby acknowledged, and in further consid-
eration of the covenants and agi'eements hereinafter mentioned, does
covenant and agree to lease, and by these presents has leased and granted
the exclusive right unto the party of the second part, his heirs or assigns,
for the purpose of operating and drilling, for petroleum and gas, to. lay
pipe lines, erect necessaiy buildings, re-lease and sub-divide all that certain
tract of land situate in district, county and State of
and bounded and described as follows, to- wit:
On the North by lands of ; on the East by lands of ; on
the South by lands of ; On the West by lands of ; containing
acres, The party of the second part, his heirs or
assigns, to have and to hold the said premises for and during the term of
from the date hereof, and so long thereafter as oil or gas can be
produced in paying quantities, or rental paid thereon.
The party of the second part, his heirs or assigns, agrees to give to the
party of the first part one-eighth part of the petroleum obtained from
said premises, as produced in the crude state, the said one-eighth part of
the petroleum to be set apart in the pipe line running said petroleimi,
to the credit and for the benefit of the said party of the first part. The
said party of the first part is to fully use and enjoy the said premises for
the purpose of tillage, except such parts as shall be necessary for said
mining purposes, and a right of way over and across said premises to the
place of mining or operating. The said party of the second part is further
to have the privilege of using sufficient gas and water from the premises
herein leased to run the necessary engines, the right to remove any
machinery, fixtures and buildings placed on said premises by said party of
the second part, or those acting under him, and is not to put down any
well for oil on the lands hereby leased within ten rods of the buildings
now on said premises without the consent of both parties in writing.
IT IS AGREED, That if gas is found, in paying quantities, the con-
sideration in full to the party of the first part for gas shall be
Dollars per annum for the gas from each well when utilized.
The party of the second part agree to commence operations within
from the execution of this lease, or in lieu thereof thereafter pay to
tlie said party of the first part dollars per annum until the work
is comrnenced. A failure to pay such rental shall render this lease null
and void
AND IT IS FURTHER AGREED, That the second party, his heirs
or assigns, shall have the right at any time to surrender up this lease.
864: OIL AND GAS.
and be released from all moneys due and conditions nnfulfilled ; then
and from that time this lease and agreement shall be null and void, and
no longer binding on either party, and the payments which shall have
been made be held by the party of the first part as the full stipulated
damages for the non-fulfillment of the foregoing contract ; tliat all con-
ditions between the parties hereunto shall extend to their heirs, executors
and assigns.
IN WITNESS WHEREOF, We, the said parties of the first and
second parts, have hereunto set our hands and seals the day and year
first above written.
In Presence of
^eal)
(Seal)
( Seal )
(Seal)
STATE OF WEST VIRGINIA, )
COUNTY OF ^To-wit:
I, a of said county of , do certify that and
his wife, whose names are signed to the within writing, bearing
date the day of A. D., 190.., ha.. this day acknowledged the
same before me in my said county.
Given under my hand this day of A. D., 190. .
THE STATE OF OHIO.
ss
COUNTY OF
Be it remembered that on the day of A. D., 190. .before me,
the subscriber, a in and for said county, personally came
and his wife, and acknowledged the signing and sealing of the
foregoing instrument to be act and deed for the use and purposes
therein expressed.
In witness whereof I have hereunto set my hand and seal the day and
year above written.
OIL AND GAS LEASE.
AGREEMENT OF LEASE, Made this day of A. D., 190. .
between of , Lessor . . , and , Lessee . . , Witnesseth :
That the lessor does hereby grant unto lessee for the term of
years (and so long thereafter as oil or gas is produced from the land
leased and royalty or rentals paid by lessee therefor) the exclvisive right to
mine for and produce petroleum and natural gas from, and the possession
of so much of acres of land Township County,
State of as may be necessary therefor, with the right to use water
and gas (if found) for the necessary engines, and to remove all machinery,
fixtures, etc., placed by the lessee on the premises. Said land bounded:
North by lands of ; East by land of ; South by lands of
APPENDIX. 865
, and West by lands of No well will be drilled within
feet of the buildings without the lessor's consent. The lessee to
deliver to lessor, in pipe line, the one-eighth of all petroleum produced
from the premises, and to pay dollars per annum for each gas well
from which gas is marketed, payable yearly from the date and while the
same is so utilized, and to pay all damages to growing crops. If gas is
found on the premises the lessee is to have sufficient gas for fuel purposes
in the operation of this lease; lessor is to have gas for household purposes
free of charge. Lessee is to have all rights and privileges necessary for the
proper use and enjoyment of this lease.
This lease to be null and void and no longer binding on either party if a
well is not completed on the premises within months from tlfis date,
unless the lessee shall thereafter pay monthly to the lessor dollars
per month for each month's delay in commencing said well. Each pay-
ment to extend the time for commencing for one month and no longer.
A deposit to credit of lessor in Bank to be good payment of
any moneys on this lease.
All grants and covenants to extend to the heirs and assigns of the
parties hereto
Witness the hands and seals of the parties.
Witness : ( Seal)
(Seal)
(Seal)
(Seal)
STATE OF OHIO, COUNTY, ss.
Be it remembered, that on the day of A. D., 190.., before
me, a in and for said County, personally came the above named
and in due form of law acknowledges the within agreement
to be free act and deed, and desired that the same might be
recorded as such.
(Seal)
STATE OF WEST VIRGINIA, COUNTY OF To-wit:
I, , a of said county of do certify that and
his wife, whose names are signed to the within writing, bearing
date the day of A. D., 190. ., have this day acknowledged the
same before me in my said county.
Given under my hand this day of A. D., 190. ..
ASSIGNMENT OF LEASE.
KNOW ALL MEN BY THESE PRESENTS, That for and in
consideration of the sum of Dollars the receipt of which is hereby
acknowledged, has this day transferred, conveyed and sold unto
my interest in the foregoing lease.
Witness :
86G OIL AND GAS.
ACICSrOWLEDGMENT OF TRANSFER.
STATE OF COUNTY OF To-wiT:
I, , a of said county of , do certify that
whose name signed to the above writing bearing date the
day of 190. ., ha. .acknowledged the same to be free act and
deed before me in my said county
Given under my hand and notarial seal this day of 190..
State of
County Office 190 .. .
The foregoing writing and the certificate of acknowledgment thereof
were this day admitted to record in this office. >
Teste :
OIL AND GAS LEASE.
AGREEMENT, Made and entered into the day of A. D.,
190. ., by and between of County of and State of
party of the first part, and party of the second part :
WITNESSETH, that the said party of the first part, for and in con-
sideration of the sum of Dollars in hand well and truly paid by
the said party of the second part, the receipt of which is hereby ac-
knowledged, and the covenants and agreements hereinafter contained on
the part of the said party of the second part, to be paid, kept and per-
formed, has granted, demised, leased and let, and by these presents does
grant, demise, lease and let unto the said party of the second part, his
heirs, executors, administrators or assigns, for the sole and only purpose
of mining and operating for oil and gas, and of laying pipe lines, and
of building tanks, stations and structures, to take care of the said
production, all that certain tract of land, situate in of
County of and State of on waters of bounded substan-
tially as follows :
On the North by lands of ; on the East by lands of ; on the
South by lands of ; on the West by lands of Containing
acres, more or less.
IT IS AGREED that this lease shall remain in force for the term of
ten years from this date, and as long as oil or gas, or either of them, is
produced therefrom by the party of the second part, its successors and
assigns.
IN CONSIDERATION OF THE PREMISES the said party of the
second part covenants and agrees; 1st — To deliver to the credit
of the first party, his heirs or assigns, free of cost, in the pipe
line to which it may connect its wells, the equal one-eighth part of all
oil produced and saved from the leased premises ; and 2nd — to pay
Dollars per year for the gas from each and every gas well drilled
on said premises, the product from whfch is marketed and used off the
premises, said payment to be made on each well within sixty days after
commencing to use the gas therefrom, as aforesaid, and to be paid yearly,
thereafter while the gas from said well is so used.
APPEXDIX. 8G7
Second party covenants and agrees to locate all wells so as to interfere
as little as possible with the cultivated portions of the farm, and to drill
no well within feet of the buildings on these premises, except by
consent of the first party.
Provided, however, that this lease shall become null and void, and all
rights hereunder shall cease and determine unless a well shall be
completed on the said premises within from the date hereof, or
unless the lessee shall pay at the rate of Dollars quarterly, in ad-
vance for each additional three months such completion is delayed, from
the time above mentioned for the completion of such well until a well is
completed ; and it is agreed that the completion of such well shall be
and operate as a full liquidation of all rental under this provision during
the remainder of the term of this lease. Such payments may be made
direct to the lessors or by check to order of deposited in the post
office by registered letter directed to
IT IS AGREED that the second party shall have the privilege of using
sufficient water from the premises to run all necessary machinery and at
any time to remove all machinery and fixtures placed on said premises;
and, further, shall have the right at any time to surrender this lease to
the first party for cancellation, after which all payments and liabilities
to accrue under and by virtue of its terms, shall cease and determine, and
this lease becomes absolutely null and void.
Witness the following signatures and seals:
Witness :
(Seal)
(Seal)
( Seal )
(Seal)
STATE OF WEST VIRGINIA. COUNTY OF To-wit:
I, a of said County of do certify that and
his wife, whose names are signed to tlie within writing, bearing date the
...... day of A. D., 190 . . , ha . . this day acknowledged the same before
me in my said county.
Given under mv hand this dav of A. D.. 190. .
THE STATE OF OHIO, COUNTY OF , ss.
Be it remembered that on the day of A. D., 190. .before me,
the subscriber, a in and for said county, personally came and
his wife, and acknowledged the signing and sealing of the foregoing
instrument to be act and deed for the use and purposes therein
expressed.
In witness whereof I have hereunto set my hand and seal the day and
year above written.
OIL AND GAS LEASE (NEW).
THIS INDENTL^RE, Made the day of A. D.. 1 be-
tween of the of County of and State of
lessor and , lessee.
868 OIL AND GAS.
WITNESSETH, That the lessor. ., in consideration of Dollars, the
receipt whereof is hereby acknowledged, does hereby grant, demise and let
unto the said lessee, all the oil and gas in and under the following de-
scribed tract of land, with covenant for the lessee's quiet enjoyment of the
term, and that lessor has the right to convey the premises to the said
lessee; together with the exclusive right unto the lessee to operate and
drill for petroleum and gas, to lay and maintain pipe lines, and erect
and maintain telephone and telegraph lines, and buildings convenient for
such operations; with the right to use water and gas from said lands,
and right of way over same for any purpose, and right of ingi'ess, egress
and regress for such purposes, and of removing, either during or at any
time after tlie term hereof, any property or improvements pl#eed or
erected in or upon said land by said lessee; with the right of sub-dividing
and re-leasing all that tract of land situate in the of County of
and State of and bounded and described as follows, to-wit:
On the North by the lands of ; on the East by the lands of ;
on the South by the lands of ; on the West by the lands of
Containing acres, more or less.
TO HAVE AND TO HOLD unto and for the use of the lessee for the term
of years from the date hereof and as much longer as oil or gas is pro-
duced in paying quantities, yielding to the lessor the one-eighth part of
all the oil produced and saved from the premises, delivered free of ex-
pense into tanks or pipe lines to the lessor's credit; and should a well
be found producing gas only, then the lessor shall be paid for each such
gas well at the rate of Dollars for each year, so long as the gas is
sold therefrom, payable quarterly while so marketed.
PROVIDED, That this lease shall become null and void unless opera-
tions shall be commenced on the premises and a well completed, unavoid-
able delay or accident excepted, within months from the date hereof,
or, unless lessee sliall pay at the rate of Dollars per , payable
in advance or within ten days thereafter for each additional
such completion of well is delayed; and the completion of such well,
productive or otherwise, shall vest in lessee, during the remainder of
the term of this lease, rental free, the grant hereunder including the
exclusive right to make such other and further search for oil or gas as
lessee. may wish
Lessor is to fully use and enjoy said premises for the purpose of tillage,
except such parts as may be used by lessee for the purposes aforesaid.
Lessee is not to put down any well on the lands hereby leased within ten
rods of the buildings now on said premises without the consent of the
lessor in writing. Lessor may, if any well or wells on said premises
produce sufficient gas, have gas for domestic purposes for one family, the
lessor paying for connections at such point as may be from time to time
designated by lessee.
The above rental shall be paid to lessor in person or by check deposited
in postoffice directed to And it is further agreed, that lessee
shall have the right at any time to surrender this lease, whereupon this
lease shall be null and void; and that all conditions, terms and limitations
APPENDIX. 869
between the parties hereto shall extend to their heirs, personal represen-
tatives and assigns.
IX WITNESS WHEREOF, We, the said parties hereto, have hereunto
set our hands and seals the day and year first above written.
Witness :
(Seal)
(Seal)
(Seal)
(Seal)
STATE OF WEST VIRGINIA, COUNTY OF , To- wit:
I, a of said County of , do certify that and
his wife, whose names are signed to the within writing, bearing
date the day of A. D., 190.., ha.. this day acknowledged the
same before me in my said county.
Given under my hand this day of A. D., 190. .
STATE OF OHIO, COUNTY OF , ss.
Be it remembered that on this day of A. D., 190. .before me,
a in and for said county, personally appeared the above named
, to me personally known to be the part . . named in and who executed
the within agreement and acknowledged to be act and desired the same
to be recorded.
Witness my hand and seal the day and year aforesaid.
(Seal)
OIL AND GAS LEASE (NEW).
AGREEilENT, Made and entered into the day of A. D.,
190. ., by and between of Coimty of and State of
part, .of the first part, and part, .of the second part:
WITNESSETH. That the said part.. of the first, for and in considera-
tion of the sum of Dollars to in hand well and truly paid by the
said part . . of the second part, the receipt of which is hereby acknowledged,
and the covenants and agi-eements hereinafter contained on the part of the
said party of the second part, to be paid, kept and performed, ha . .
granted, demised, leased and let, and by these presents do . . grant, demise,
lease and let unto the said part . . of the second part, heirs, executors,
administrators or assigns, for the sole and only purpose of raining and
operating for oil and gas, and of laying pipe lines, and of building tanks,
stations and structures thereon to take care of the said products. ALL
that certain tract of land, situate in District County and State
of on waters of bounded substantially as follows:
North by lands of ; East by lands of ; South by lands of
and West by lands of Containing acres, more or
less, and being same land conveyed to the first part.. by by deed,
bearing date 190. ., reserving, however, therefrom feet around
the buildings on which no well shall be drilled by either party except by
mutual consent.
870 OIL AND GAS.
IT IS AGREED that this lease shall remain in force for the term of
ten years from this date, and as long thereafter as oil or gas, or either
of them, is produced therefrom by the party of the second part,
heirs, executors, administrators or assigns.
IN CONSIDERATION OF THE PREMISES the said part.. of the
second part covenants and agrees: 1st — To deliver to the credit of the
first part heirs or assigns free of cost, in the pipe line to which it
may connect its wells, the equal part of all oil produced and saved
from the leased premises; and, 2nd — To pay Dollars per year for the
gas from each and every gas well drilled on said premises, the product of
which is marketed and used off the premises, said payment to be n^de on
each well within sixty days after commencing to use the gas therefrom.
as aforesaid, and to be paid yearly thereafter while the gas from said
well is so used.
Second part, .covenant, .and agree., to locate all wells so as to inter-
fere as little as possible with the cultivated portions of the farm. And
further to complete a well on said premises within from the date
hereof, or pay at the rate of Dollars quarterly, in advance, for each
additional three months such completion is delayed from the time above
mentioned for the completion of such well until a well is completed; and
it is agreed that the completion of such well shall be and operate as a
ful liquidation of all rental under this provision during the remainder of
the term of this lease. Such payments may be made direct to the lessor
or deposited to credit in
IT IS AGREED that the second party shall have the privilege of using
sufficient water from the premises to run all necessary machinery and
at any time to remove all machinery and fixtures placed on said premises;
and, further, upon the payment of Dollars, at any time, by the
part . . of the second part, heirs, successors of assigns, to the part . .
of the first, heirs successors or assigns, said part.. of the second
part, heirs, successors or assigns, shall have the right to surrender
this lease for cancellation, after which all payments and liabilities there-
after to accrue under and by virtue of its terms, shall cease and determine,
and this lease become absolutely null and void.
Witness the following signatures and seals:
Witness.
(Seal)
(Seal)
( Seal )
.(Seal)
STATE OF WEST VIRGINIA, COUNTY OF , To-wit :
I, , a of said county of do certify that and
his wife, whose names are signed to the within writing, bearing date
the day of A. D., 190. ., have this day acknowledged the same
before me in my said county.
Given under my hand this day of A. D., 190. ..
APPENDIX. 871
STATE OF OHIO, County, ss.
Be it remembered that on the day of A. D., 190.., before
me, the subscriber, a in and for said county, personally came
and his wife, and acknowledged the signing and sealing of the
foregoing instrument to be act and deed for the use and purposes
therein expressed.
In witness whereof I have hereunto set my hand and seal the day and
year above written.
OIL AND GAS GRANT.
IN CONSIDERATION of the sum of dollars, the receipt of which
is hereby acknowledged grantor, ha.. granted and conveyed,
and do. .hereby grant and convey, subject to the following conditions, unto
gi-antee . . all the Oil and Gas in and under the following
described premises, to-wit : All that piece or parcel of land in the
of county of and State of containing acres,
be the same more or less.
This grant is subject, nevertheless, to any rights now existing to the
lessee by virtue of the lease heretofore given on said land for oil and gas;
but if said lease has expired or become void, or shall hereafter expire
or become void, or if no such lease ever existed, said grantee shall have and
is hereby granted, all the rights and privileges of drilling and operating
on said land, to produce, store and remove the said oil and gas necessary
and usually granted to the lessee in an oil and gas lease.
This grant and conveyance is made on condition that said grantee..
do . . within days after a well shall have been drilled on said land to
the usual depth for oil and gas, and been properly completed, tubed and
tested for oil, pay unto the said grantor, .the sum of dollars.
If said grantee shall, as he may do at his option, omit to pay the said
sum of $ within the time aforesaid, then this grant shall become
as absolutely null and void as though it had never been made, and said
grantor shall retain the sum first above mentioned as full liquidated
damages. Depositing the sum of $ in the bank at to the credit
of said grantor shall be equivalent to payment of the same to and its
acceptance by said grantor
This grant shall expire years from this date, if no well shall have
been drilled on said land by that time, unless the said sum of $
shall be paid without the well being drilled.
This grant and the conditions, terms and provisions thereof, shall apply
and extend to the said grantor.. and grantee, their heirs, executors, ad-
ministrators and assigns.
IN WITNESS WHEREOF we have hereunto set our hands and seals this
day of A. D., 190.. |.
Witness :
(Seal)
(Seal)
(Seal)
(Seal)
(Seal)
(Seal)
872 OIL AND GAS.
I, for said county, do certify that and his wife,
whose names are signed to the writing hereto annexed, bearing date the
day of 190. .have this day acknowledged the same before me.
Given under my hand this day of 190. .
TEXAS.
OIL AND GAS LEASE.
THIS LEASE, made and entered into this day of A. D.,
190 . . , by and between of State of lessor . . , and
Petroleum Company, a Texas corporation, lessee, witnesseth:
The Lessor. ., for and in consideration of the sum of dollar. ., paid
to the lessor.. by the lessee, the receipt of which is hereby acknowledged,
do.. hereby grant, demise and let unto the lessee, its successors and
assigns all the oil and gas in and under the following described tract of
land, and also the said tract of land for the purpose and with the ex-
clusive right of drilling and operating thereon for said oil and gas,
together with the right-of-way and the right to lay pipes to convey water,
oil, steam and gas, and to have sufficient water, oil and gas from the
premises to drill and operate wells thereon and on adjoining leases, also
such other privileges as are necessary for conducting said operations, and
the right to remove at any time any and all property placed thereon by
the lessee, all that certain tract or parcel of land situated in State
of , bounded and described as follows: containing
acres, more or less, but no wells are to be drilled within feet of the
present buildings without the consent of both lessor.. and lessee.
TO HAVE AND TO HOLD the same unto the lessee for and during the
term of ten years from the date hereof and as much longer as oil or gas is
found in paying quantities thereon, yielding and paying to the lessor . .
the ( . . ) part or share of all the oil saved from that produced on the
premises, delivered free of expense at the well into tanks or pipe line
to the lessor's credit, and should any well on said premises produce gas
in sufficient quantities to justify the lessee marketing same off said
premises, the lessor, .shall be paid at the rate of dollars a year for
each and every well, the product of which is marketed and sold off said
premises, the first payment to mature si.xty days after a well is turned
into a pipe line for marketing and to be paid thereafter while the
gas from said premises is so sold.
Provided, however, that this lease shall become null and void and all
rights hereunder shall cease and determine imless a well is commenced on
said premises within from the date hereof, or unless the lessee shall
pay to the lessor, .a delay rental of per annum, payable quarterly in
advance for every three months such commencement is delayed from the
time above specified until a well is commenced, such payments to be made
direct to the lessor .. either by check mailed to or deposit to
APPENDIX. 873
credit in at and in default of the payment of such rental when
due this lease shall become null and void and of no effect
It is expressly understood and agreed between the lessor, .and the lessee
herein that the said lessee shall have the right to hold this lease for the
period of ten years as above provided, and as long thereafter as oil or gas
in paying quantities is produced therefrom, if a well is commenced as
above specified or if the rental is paid promptly when. due, and the said
sum of dollar, .this day received by the lessor, .from the lessee is a
consideration for the right of the lessee to hold said lease during .said
term either by commencing a well on said premises as herein provided or
by paying the rental above specified.
The lessee agrees to locate all wells so as to interfere as little as possible
with the cultivated portions of the farm.
It is agreed that all the conditions and terms herein shall extend to
the heirs, executors, successors and assigns of the parties hereto.
In witness wl\ereof the lessor.. and the lessee have hereunto set their
hands and seals the day and year first above written.
Witness :
STATE OF TEXAS,
COUNTY OF
Before me, the undersigned authority, on this day personally appeared
known to me to be the person . . whose name subscribed to
the foregoing instrument and acknowledged to me that executed the
same for the purposes and considerations therein expressed ; and on this
day also appeared before me , wife of the said , who having
been examined by me privily and apart from her said husband, and having
the said instrument by me fully explained to her, she the said , ac-
knowledged the same to be her act and deed, and declared that she had
willingly executed the same for the purposes and considerations therein
expressed and that she did not wish to retract it.
Given under my hand and seal of office this the day of A. D.,
190...
K
INDEX.
(References are to sections.)
ABANDONMENT —
Acquiescence in, effect, 13^
Cessure of operations, 140
of work after operations begun, 141
Distinction between abandonment and forfeiture, 137.
Expense of drilling wells, recovery, 137
Extension of time, 140
Failure to drill wells on several leased premises, 129
Forfeiture, see
Inability to complete work, 173
Intent to abandon necessary, 137
Lessor consenting to. effect, 181
Non-productive premises, 138
Partial of leased premises, 169, 170
Personal privilege, 137
Rent falling due after abandonment, 137
Suit to ca.icel lease, 186
Surrender of leased premises, 142
Temporary suspensions of work, effect, 140, 141
Unprofitable lease, 99
Waiver of or abandonment, 159, 160
When completed, 137.
ACCEPTANCE —
Of franchise is necessary, 471
ACCOUNT —
Co-tenant must account to fellow servant, 278, 279
Effect of rendering, 251
Power of court of equity to enforce accounting between joint owners,
282
Statute of Limitations does not bar right to an accounting, 301
Suit to recover upon account rendered, 282
ACKNOWLEDGMENT OF LEASE —
Defective, effect, 82
ACQUIESCENCE —
Abandonment of damages occasioned by, 132
Delay, effect, 131
ACTION —
Assumpsit to recover price of gas, 545
Forfeiture of right to occupy estate enforced by, 491
Inspection of meter to secure, 555
Right of action over by gas company against wrongdoer, 656
Suit, see
to recover for gas supplied. 432
875
876 INDEX.
(References are to sections.)
ADMINISTRATOR —
Power to execute lease, 59
ADVERSE POSSESSION —
Ejectment, see
Possession of surface when adverse to owner of oil or gas, 295 to
299
AFRICA —
Oil wells, 7
AGENT —
May take lease after forfeiture of his principal's lease, S9
ALASKA —
Oil wells, 7
ALLEGANY RIVER — **'
Oil springs upon known to French, 2
ANCIENTS —
Knew of petroleum, 1
APPURTENANCES —
What passes as such on conveyance of leased premises, 74
ARTICLES OF COMMERCE —
Gas and oil are such articles, 350
ARTIFICIAL GAS —
Corporation for cannot supply natural gas, 478, 742
Gas, see
Natural Gas, see
ASSIGNEE —
Bound by agreements in lease, 203
Default, assignee cannot take advantage of, 195
Equitable, in'possession of premises, 200
Forfeiture of lease may declare, 152
Liable to his assignor, 204 to 209, 215
Liability on covenants in lease or contract, 94
if he occupies under unassigned lease, 208
when he does not take possession, 209, 211
Notice to of prior lease, G9
Several successive assignees liable for rents, 210
Substitution of releases lessee, 212
ASSIGNMENT —
Assignee liable upon express covenants in contract, 95
Consent to of lighting contract, 414
Lighting contract may be assigned, 414
Rates for gas fixed in assignment, 395
Right to occupy streets, 477
ASSIGNMENT OF LEASE —
Assignees bound by agreements in lease, 95, 203
Consent, refusal to give, 196
Default in carrying out terms of lease, assignee cannot take advan-
tage of, 195
Equitable assignee in possession of premises, 200
Interest assignee secures in lease, 194
Judicial sale, effect, 199
Lease, see
Lessee may make of lease, 193 *■
Lessor may make of lease, 193
Liability of assignee, extent, 203 to 206
of assignee to his assignor, 215
of assignee of part interest in lease, 207
INDEX. 87'
(References ate to sections.)
ASSIGNMENT OF LEASE — Continued.
of assignee broadened by terms of assignment, 205
to assignee»\vlicn not taking possession, 209, 210
if he occupies under unassigned lease, 208
Oil in tank does not pass, 254
Option carries, 19S
Privity of estate, 203
Release of lessee by substitution of assignee, 212
Royalties, see
may be assigned, 202
Statute of Frauds, effect upon, 94
Several successive assignees' liability, 210
Substitution of assignee is a surrender, 143
Sublessee, see
when not liable, 217
Sublease is not an assignment, 197
Surrender of lease, 168
Unassignable, when, 201
ASSIGNOR —
Assignee liable to, 215
Liable on account of lease as surety, 216
B
BABYLON —
Petroleum used by ancients, 1
BAKU —
Oil and gas wells of, 1, 9
BANKRUPT —
Trustees of liable for gas rents, 546
BARBADOES TAR —
Use of as a medicine, 14
BENZINE —
Exploding when vised in paint, 675
BIDS —
On lighting contracts, 41
BISSELL, GEORGE II.—
Formed first oil company, 5
Secured analysis of petroleum, 13
BLANKS —
In lease, 80
BOUNDARY LINE —
Draining premises by wells on adjoining territory, 171, 172
Drilling wells near leased premises, 101, 102
Of leased premises, 109
Protection to oil or premises, 101. 102, 112
Wells near to is not waste, 35
to protect, 112
BOUNDARIES OF CITY —
Extending, right of gas company in new territory, 419
BRANDS —
Use of false brands misleading consumers, 670
BURDEN OF PROOF —
Plaintiff has in case of negligence, 610
BURMAH —
Oil wells, 7
878 INDEX.
(References are to sections.)
c
CALIFORNIA —
Oil wells of, 2
CANADA —
Early oil wells, 2
Gas wells situated in territory, 9
Oil wells, 7
CANDELABRA —
Fixtures, when are, 568
CARE —
Leaks and explosions, see
Negligence, see jt
CARS —
Defective, used in transportation of oil, 371, 372
CASPIAN SEA —
Oil and gas found near, 1, 8
O.^SAR, JULIUS —
Refers to natural gas spring in France, 8
CESTUIS QUE TRUSTENT —
When trustee of lessee liable, 213, 214
CHANDELIER —
Fixtures are, when, 568
CHARTER —
Is a contract, 391
CHATTEL REAL —
A lease may be, 51
CHINA—
Natural gas, 8
Natives used petroleum at early day, 1
CITY —
Municipality, see
COAL MINES —
Drilling gas well through to lower strata, 369
Laying pipe-line above, support, 368
COMMERCE —
Gas or oil is an article of commerce, 40
COMIMON CARRIERS —
Negligence in the use of defective cars, 371, 372
Oil shipped on trains carrying other goods, 373
Overcharges for carrying oil, 351
Passengers injured by exploding oil, 375
Shippers liability to servant of carrier, 374
COMIMON LAW —
Rule 566
COMPOSITION—
Elements of petroleum and natural gas, 11
CONSIDERATION —
Lease, sufficient amount for, 66
Option must have, 71
CONSOLIDATION — *
Gas companies making must comply with their several grants, 485
CONSTITUTION —
Limit upon indebtedness of cities, 408, 409
Rates, see
INDEX.
(References are to sections.)
879
CONSTITUTION — Continued.
Regulation of transportation of oil and gas does not prohibit, .350,
352, ,353
Restrictions on monopolistic grants, 441, 442, 443
CONSTRUCTION —
Of the provisions of lease, 78, 79, 219
CONSUMER —
Abutting property only entitled to gas, 528
Action against to collect price of gas, 545
Classification of consumers. 543
Common law does not require gas company to furnish gas, 524
Company must supply line consumers with gas, 525
Contract, special for supply of gas may make, 539, 547, 548, 549.
Deposit of money to secure pay for gas, 541
Discriminating between, 520, 527, 542
Distress to collect gas bills, 546
Extension of mains or pipes in order to furnish with gas, 529
Failure to supply with gas. 531
to supply with natural gas, 527.
Former tenant, present tenant not liable to pay his gas bills, 54b, 547
Frost preventing company from supplying gas, 534
Gas Company, see
Heat, furnishing consumer with gas for, price, 542
Inspection of his promises. 530
Limiting liability for failure to supply gas, 535
Mandamus to compel company to furnish gas, 531, 532
Manufacturer, price of gas to. 526
Meter, see
Overcharge, may recover back, 544
Ownership of supply pipe, 550
Payment in advance for gas. 540, 541
Penalties for failure to supply gas. 533, 534
Price in other states to fix price at home, 539, 544
to be charged for gas. 539 ,
Rates, see
Receiver of liable for gas bills. 547
Right of consumer to discontinue use of gas, 549
Rules, see
must obey, 537
need not obey illegal rules, 537, 538
Shutting oflF supply for neglect to pay for gas, 547
meaning of in contract. 744
Supply of gas furnished only to abutter, 528
Turning on and ofl" gas, may not, 531
CONTRACT FOR LEASE —
Damages for breach of, 294
Exclusive right to oil or gas, 90
Effect of taking possession of land, under, 292
Indefinite, effect, 290
Interest in land may give, 52
Merged in conveyance of premises, 65
Notoften drawn into controversy, 289
Rescission for fraud. 146
Surface of ground, right to oil, 77
Unilateral, what is, 56
What is a sufficient writing concerning, 291
What is a sufficient consideration, 66
880 INDEX.
(References are to sections.)
CONTRACT FOR LIGHTING CITY OR TOWN —
Action to recover for gas supplied under, 432
Additional requirements may be exacted in extension of time for com-
pletion of gas works, 456
Assessment of cost of gas upon abutting property, 430
Assignment of lighting contract, 414
effect, 94
Bids for lighting, 411
Breach of lighting contract by city, 413
damages, 413
Changing, city cannot, 417
Charter to furnish is a contract^ 391
Cost of city light, out of what paid, 426 g>
Dating ahead, 462 ^
Discontinuing use of gas, 416
Exhaustion of light appropriation, no defense, 428
Extending gas mains, refusing to make, 437
E.xtending term of contract, 410
Federal question, Avhen raises, 451
Gas furnished without contract, 418
How executed, 412
Interest upon gas bills, 433
Lamps, what kind to be used, 434
Length of term for light, 409, 461
Light, see
Mandamus to compel auditing of city bills, 431
Monopolistic clause in contract does not avoid, 452
Monopoly, see
Moonlight schedule for light, 422
Municipal offices interested in, effect, 439
Municipality, see
New territory, contract covers, 419
Ordinance, when must be general, 460, 461
Price to be paid for light, 423, 425
• Rates for gas, see
Receiver botind by, 438
Rescinding, 413, 415
Revocation of monopolistic franchise, 447
Special made for supply of gas at fixed price, 539, 547, 549
Taxation, exemption from, 425
Uncertainty, 421
United States revenue, adding amount to cost of light, 435
Void, effect of receiving light under, 420, 421
Waiver as to quality of gas or light furnished, 436
CONTRACTOR —
Gas company may be liable because of his negligence, 605, 681
Liability for causing leaks in gas mains, 655
CONVERSION —
Oil in tanks or pipe-lines, 46
CONVEYANCE —
Appurtenances, what pass by, 74
Merges contract for a lease, 65
CORPORATIONS —
For artificial gas, cannot supply natural gas, 478, 742
CO-OWNER —
Co-tenant, see
Partnership, see
Tenants in common, see
INDEX. 8SJ
CRpferences are to sections.)
CO-TENANTS —
Accounting between for oil produced, 278, 279, 282
Are not partners, 311
Assignment of lease^ 278
Confidential relations between, 281, 312
Expense of working joint property, 283
Fidelity relation between, 288
Injunction by, when against trespasser, 285
Joint tenant, see
Jurisdiction of equity to secure accounting between, 282
Lease may grant of joint property, 275
License may grant of joint property, 275
May operate land of co-tenar.cy, 274
Partnerships, see
Payment of rent or royalty to one co-tenant, 287
Purchased by, when of co-tenants" interest, 281
Receipt of rent or royalties, 287
Suit to secure an accounting, 278, 279, 282
Surrender of premises, one tenant may make, 284, 286
Tenants in common, see
When a tenant is bound by his co-tenants' act, 284
\^'ith owner of mineral, 280
COUNCILMAN —
Interested in lighting contract, effect upon contract, 439
COVENANT —
Assignee of contract, when liable upon, 95
Breach of implied covenant, effect, 91
Diligent search for oil or gas implied, 127
Free gas, agreement concerning is a covenant, 92
Implied to develop territory, 104
to operate territory after development, 151
forfeiture does not authorize, 92, 154, 157
Personal, what are, 93
Purchase of tools and machinery, 93
Running with lands, 92
vSearch for oil or gas is implied, 91, 127
Uncertain, will not work forfeiture, 165
When implied, 91
CURIOSITY SEEKER —
Injured by explosion of oil, 376
CURTESY —
Husband's right to oil or gas upon premises, 264
D
DAMAGES —
Acquiescing in abandonment of lease, effect, 132
Breach of contract to give a lease, 294
to furnish light, 413, 415
Compliance ^A-ith terms of lease, 183
Duty of owner of premises to prevent, 592
Entire leased premises must be developed, 104 to 107
Failure to develop premises, 104, 180
to deliver lessor his share of oil, 231
to supply gas, 533, 534
Injunction to prevent cutting off supply of gas, 548
Instead of forfeiture, 192
Limiting liability for neglect to supply gas, 535
882 INDEX.
(References are to sections.)
DAMAGES — Continued.
Measure of for taking oil or gas illegally, 33, 108
for taking right of way for pipe-line, 361 to 364
Neglect of company must cause damage to render it liable, 604
Occasioned by storing or bringing oil on land, 584
Res judicate, 107
Sickness occasioned by small supply of gas, 534
DEAD SEA —
Oil found upon its boundaries, 1
DEBT —
Constitutional provisions concerning, 408, 409
Contract for light does not create, 408, 409 ^
Liability of parties for debts of mining partnership, 324, 325
DEED —
Conveyance, see
Quit claim deed may create a lease, 62
DESCRIPTION —
Sufficiency of in an oil lease or contract, 76
DILIGENCE —
Agreement concerning what shall be, 98
Forfeiture of lease, see
Greater required in developing oil than coal lands, 130
Implied covenant to search for oil or gas, 127
Lease, see
Operating premises, degree required, 97
When work on leased premises must begin, 96
DISCRIMINATIONS —
Failure of supply of natural gas does not authorize, 527
Gas company cannot make, 526, 527, 542
In care of meters, 563
DISTRESS —
To collect gas rents, 546
DOWER —
Assignment in mineral lands, 273
Right of widow to operate wells upon lands assigned to her, 261, 262
273
DRAKE, E. L.
Dug first oil well, 5
E
EAST LIVERPOOL —
Gas wells, 9
EJECTMENT —
Lessee may maintain to recover leased premises, 20
ELECTION —
To authorize city to purchase or build a gas plant, 517
ELECTROLYSIS —
Expert evidence to show effect of, 659
EMINENT DOMAIN —
Artificial gas companies, power to use, ^57
Condemning riglit of way for pipe lines, 503
Conferring power of on gas or oil companies, 356-358
Foreign corporations empowered with right to use, 357, 358
Measure of damages in taking ri^ht of way for pipe lines, 361 to 364
Petition to condemn pipe line right of way, 367
INDEX. 883
(References are to sections.)
ENGLAND —
Natural gas wells^ 8, 9
Oil wells, 7
Refining petroleum, 13
ESTOPPEL —
City, when may be to control validity of monopolistic grant, 450
Land owner, to remove pipes from highway, 504
Occupying streets under void ordinance, "479
When lessor may be estopped, 182
When lessee may be estopped, 84
EXCEPTION —
Consideration for grant of a part of mineral, 245
Distinction between an exception and reservation, 302
Eeservation, nee
Severance of mineral by means of, 303
Subject to liens of judgment, 307
EXCLUSIVE CONTRACT —
Monoply, see
EXPENSES —
Operating expense first paid, when, 224, 225
Recovery when there has been an abandonment or forfeiture, 137
Reimbursement of lessee for expenses, 190
EXPLOSIONS —
Insurance cases, 697, 698
Leaks and explosions, see
Prospective damages occasioned by pipe lines, 363
EVICTION —
Effect upon lease, 120, 161
Erection of building for machinery is not, 120
Relieves lessee from liability to lessor, 241
EVIDENCE —
Care on part of gas company to prevent leaks, 658
Expert, to show effect of electrolysis, 659
Inhalation of gas, 660, 661
Leaks and explosions, .-.•ce
Notice of leaks in gas main, 620, 621, 622
Presumption of negligence arising from proof of explosions, 611, 612
Undue pressure in gas pipes at other places, 632
FIRE-POT —
Injury occasioned by exploding gasoline firepot, 669
FIRES —
Negligence, see
Pipe line occasioning, 363
FIRST OIL WELL —
When dug, 5
FIXTURES —
Agreement concerning may make them personal property, 567
Between mortgagor and mortgagee, 571
Candelabra, 568
Chandeliers, 568
Coal and mineral lease fixtures, 575
Conveyance of premises, effect on fixtures, 577
Division of subject, 565
Gas burners, 570
884 INDEX.
(References are to sections.)
FIXTURES — Continued.
Gas generators, 570
Gas machine, 570
Gas stoves, 568
Gasoliers, 568
Injury to freehold by removal, 567
Innocent purchaser of premises, rights. 567
Intent to constitute, when essential, 506
Judicial sale of premises, effect upon, 569
Landlord and tenant or between, 573
Mixers, 568
Mortgaging, 577
Oil and gas lease fixtures, 576
Pipes in house for gas, 570, 572, 573 f
Pipe lines, 579
Public policy, 560
Removal after forfeiture of lease, 191
Sources, 568
Special contract controls, 578
Trade fixtuies, 573, 574
Vendee, when entitled to, 570
FLAMBEAU BURNERS —
Prohibiting use, 28, 386
FOREIGN CORPORATION —
Right to exercise powers of eminent domain, 357, 358
FORFEITURE —
Action to declare forfeiture of right to occupy streets, 491
Monopolistic contract for lighting city, 452, 454
Right to occupy streets. 490, 491
Waiver by city of right to declare a forfeiture, 492
FORFEITURE OF LEASE —
Abandonment, see
Acquiescence in delay in developing premises, 131
Actual mining operations must commence within a reasonable time, 133
Assignee of lessor may declare forfeiture, 152
of lessee cannot take advantage of forfeiture clause, 195
Breach of implied covenant, 91
Cessure of work after operations begin, 141
Clause concerning omitted, effect, 156
Covenant uncertain, effect, 165
Damages for failure to develop premises, 104 to 107
for non-compliance with terms of lease, 183
instead of declaring a forfeiture, 192
Declaration of forfeiture by lessor, notice, 158
Diligence, agreement as to what constitutes, 98
in beginning work, 96
in operating premises after forfeiture, 97
required in developing oil lands, 130
search for oil required, 137
Draining leased lands by wells on adjoining premises. 171, 172
Excavating for oil means bringing it to surface, 176
Expense of drilling wells, recovery, 137
Extension of time of lease. 131, 140
Failure to operate and not failure to^evelop. 162. 103
Favorite equity when will promote justice, 147, 148, 151
Fixtures, see
and machinery, removal, 191
when forfeited, 574
INDEX. 885
(References are to sections.)'
FORFEITURE OF LEASE — Continued.
Heirs may declare, 152
History of change of rule giving lessor exclusive right to declare, 149
Holding premises for speculative purpose, not permitted, 128
How may be declared, 237, 238
Implied covenants to operate premises, 151
do not authorize forfeiture, 154. 157
Inability to complete work, effect, 173
Lessee cannot insist upon, 153, 155
cannot recover premises after forfeiture incurred, 189
Lessor can only declare, 148, 149. 151
Liability for rent after forfeiture incurred, 237 to 240
Lien, effect upon premises, 334
Machinery, removal, 191
Mortgage of leasehold may work. 174
Non-development of premises where no time is fixed, 129
Notice of election to declare. 158
Part onlj' of leased premises, 169, 170, 189
of premises. 111, 112
Paying quantities, see
what is considered to be. 134, 135, 136
Payment of rent, when will prevent, 145
when will not prevent, 178
Production of gas will not prevent forfeiture of an oil lease, 164
Question of intention, 184
for jury, 185
Re-entry, when necessary, 166
Reimbursement of lessee for expenses incurred, 190
Relief from. 187
Royalty, failure to pay, effect, 177
Rule in gas or oil leases, 148
Stranger cannot avail himself of a forfeiture, 153
Suit to cancel lease, 186
Surface, oil must be brought to. 176
Surrender after assignment, 168
Time to avoid, 188
Waiver of, 159, 160
Wells, see
must be drilled to prevent. Ill, 112, 175
Work, when must be completed, 175
Unavoidable accident, effect. 131
Void, in lease, means voidable,
FORMS OF LEASES —
See Appendix
FRANCE —
Natural gas and oil wells, 7, 8
FRANCHISE —
Acceptance of necessary, 471
Assignment of, rates for gas fixed in assignment, 395
Change of use, cannot be made, 478
Consolidation of gas company, effect, 485
Construction, 472. 473. 478
Estoppel to contract, 479
Forfeiture, exclusive franchise, 454
of right to occupy streets, 491
waiver of right of cit.v to declare. 492
Grant of right to occupy street before company is organized, 482
Length of grant, 483
Monopoly, see
886 INDEX.
(References are to sections.)
FRAXCHISE — Continued.
Nature of discussed. 469, 470
Natural gas grant does not authorize the use of artificial gas, 478, 742
New territory, 474, 475. 476
Ordinance, see
Power to grant not property of city. 467
Revocation of monopolistic contract, 447
when may be made, 489
Strictly construed, 472, 473, 474
Taxing, 731
Termination of life of corporation before expiration of right to occupy
streets, 484
Town becoming a city, effect upon gas company, 486 ^
Void ordinance, effect upon franchise, 479 '^
What territory it extends to, 474, 475, 476
FRAUD —
Avoids contract for a lease, 146
Co-tenant's fraud upon fellow tenant, 281, 288
Fidelity relations between co-tenants, violating, 288
Municipal offices interested in city contract, effect, 439
Partner's fraud upon co-partners, 288, 312, 315
FREDONIA —
Gas wells, 9
FREE GAS —
City contract for, 424
Covenant for runs with leased premises, 92
Quantity lessor entitled to receive, 226. 547
Royalty in gas used to operate leased premises, 227
When part of rent, 225, 226
FRENCH —
Discovered oil in Pennsylvania at early date, 2
FROST —
Breaking pipes and occasioning leaks, 624
Entering pipes, no defense for failure to furnish gas, 534
G
GALICIA —
Oil wells, 1, 7
■GAS —
Artificial and natural gas not subject to same statutes, 455, 742
City may furnish for commercial purposes, 512, 513, 515
Company, prices it may charge for gas, 539
Consumer, see
may discontinue use of gas, 549
Dangerous substance, care required in handling, 600 to 602
Delivery to consumer, when completed, 559
Deposit of money to secure payment for, 541
Discontinuing use of by city, 416
Early attempts to use for light, 17
Heat, price to be paid for gas, 542
Inhalation, evidence to show, 660, 661
License, 743
Mandamus to compel company to furnish, 531, 532
Measuring. 557. 558
by officially tested meters, 557
Meters, see
Municipality, profit may make in furnishing its customers, 515
INDEX. 887
(References are to sections.)
GAS — Continued.
Natural gas, see
same statutes do not apply to, 478
Necessary of life, is not, 748
No contract for gas furnished, 418
Payment for, in defense to suit on account, 540. 541
Poor quality, rescission of contract for gas, 415
Pressure in pipes, regulating, 3S3
Price to be charged, 530
Shutting off supply for failure to furnish gas, 547
meaning as used in contract, 744
Taxing, 741"
Turning off and on, who may, 531
Waiver as to quality of gas furnished for light, 436
GAS BOX —
May be placed in streets, 498
Use of in sidewalk occasioning injury, 680
GAS BURNERS —
Are fixtures, 570
GAS COMPANY IN CITIES AND TOWNS —
Accepting provisions of subsequent ordinance,
effect upon rates. 396
Assignment of franchise, effect upon rates, 395
Conditions of grant, must perform, 472
Consolidation, effect, 485
Consumer, see
must be furnished gas, 525
Duty to protect the public and its patrons, 599
Franchise, acceptance of necessary, 471
nature of, 469, 470
Grant to occupy streets strictly construed, 473
Leaks and explosions, see
Natural gas company cannot be organized under artificial gas statutes,
455, 742
Quasi public corporations, 401
Rates for gas, sec
Regulations of by municipality, 399, 480
Streets, see
Supplies furnished to, liable, 747
Taxing, 741
Unlawful combinations, may not make, 459
GAS FITTER —
Liable for occasioning explosion, 657
Plumber, see
GAS GOVERNOR —
Injunction to restrain use of, 553
GAS MAINS —
Extension, when company must make, 437
Natural gas mains using for artificial gas, 478, 742
Not an additional burden on fee. 500
Ordinance necessary to authorize placing in street, 460
Pipes, see
Taxed as personal property. 730
GAS POSTS —
Leaving in street after franchise has ended, 499
888 INDEX.
(References are to sections.)
GAS WORKS —
Building under void grant or franchise, 457
City's gas plant, 733
how pay for, 430
Enjoining construction, 595
Extension of time to complete, 456
How city may pay for, 430
Imperfectly constructed, occasioning injury, 683
Lease of its plant by city, 522
Mortgaging, 348
cannot be mortgaged, 339
Municipality may own, 511, 512, 513
may take stock in private company, 518
must be sole proprietor, 518
Nuisance, see
Option of city to purchase, 458
Polluting well or spring near by, 581
Right of city to purchase of gas company, 519
Sale by city of its plant, 521
Taxing, 733
Trustee to operate city's plant, 520
GASOLIERS —
Fixtures are, when, 568
GASOLINE —
Fire pot for exploding, 669
Leaks and explosions, see
Oil, see
GERMANY —
Oil wells, 7
GOVERNMENT LANDS —
Entry of government oil lands, 45
GRASS —
Proof of effect of escaping gas on growing grass, 662
GREEK FIRE —
Used by ancients, 1
GUARDIAN —
Leasing ward's property, 57, 256
When may not drill for gas, 35
GUEST —
May recover damages from gas company, 641
H
HAWAIIAN ISLANDS —
Oil wells, 7
HEAT —
Natural gas company cannot be organized under statute for formation
' of heating companies, 39
Price to be paid for gas for heating when price of gas for light is
fixed, 542
HEIR— ^
Interest of in gas lease, 57
May declare forfeiture, 152
Rights in mining partnership, 315
HERODOTUS —
Speaks of petroleum, 1
( INDEX. 889
(References are to sections.)
HIGHWAYS —
Acquiescence in use of for pipes, 504
Condemnation of right of way in for pipes, 503
Consent of city to lay pipes in, when not necessary, 468
of county to lay pipes in, 506
Control of, 464
Crossing with pipe-line, 506
Defined, 463
Franchise to occupy discussed, 469, 470
Injuries occasioned by laying mains therein, 682
Natural gas beneath, who owns, 306
Oil beneath, who owns, 306
Pipes laid in an additional burden on fee, 502
Removal of pipes from unlawfully laid tliercin, 508, 509
Revocation of license to use for pipes, 507
Streets, see
Surface cannot be used for pipes, 510
Use of for private purposes, 465
for pipe-lines, 360
HISTORY —
Ancients knew of petroleum, 1
Early wells in America, 2 to
HOMESTEAD —
Husband may lease, 62
Wife must sign lease, 57
INDEBTEDNESS —
City's contract for light does not create, 408, 409
INCOME —
Defined, 224
INCORPOREAL HEREDITAMENTS —
License to drill for oil may be, 50, 63
INDIA —
Oil wells, 7
INDICTMENT —
Obstructing streets, 494
Waste of natural gas or oil, 598
INFANT —
Lease of oil or gas land cannot make, 256
INFLAMMABLE OILS —
Judicial notice concerning, 41
INGRESS AND EGRESS —
Right to have, 74
INJUNCTION —
Building of gas plant, preventing. 595
Gas governor, to compel removal, 553
Lessee entitled to protect leased premises. 103
Mandatory to compel turning on of gas, 548
Nuisance, restraining, 594, 595
Ordinance, to prevent passage by city council, 453
Pipes, protecting. 496
Preventing the cutting off of gas, 548
Protecting right to use streets, 481
Restricting the laying of pipes in street, 487
Waste of natural gas, preventing, 28, 35, 598
890 INDEX.
(References are to sections.;
INSPECTION —
Company may inspect premises furnished with gas, 530, 615
Pipes must be inspected by gas company, 615
Right of company to make of premises, 590, 615
State may require of oil, 388
INSPECTOR —
State inspector of gas, see Taxes
INSURANCE —
Benzine and burning or chemical oil, 694
Cleaning clothes with gasoline, effect on insurance policy, 718
Conflict between rider or written part and printed part of rider, 688
Contiguous buildings, what are, 690
Custom may control terms of policy, 706
Damages, right of company to recover, 724
Death caused by inhaling gas, 726
Destroying vermin in house with gasoline, 718
Drug store keeping ex])losive oils, 713
Exemption clause omitted, 697
Explosions, 697, 698
Extent of prohibited use, 702
Factory using gasoline, 712, 716
Failure to disclose the use of oil, 699
French electric fluid equivalent to benzine, 694
Furniture store using oil for cleaning, 711
Gas company causing fire liable to insurance company, 725
Grocery keeping oil for sale, 709
Hazard not increased, policy avoided, 700
Hazardous articles, occasional use, 703
Implied consent to make use of prohibited articles, 706
Increase of risk, 704
Inhaling gas covered by accident or life policy, 726
Judicial notice of nature of oils, 41
Keeping oil. meaning of term, 707
Kerosene oil, when vise of prohibited, 694
use of for fires, 695
Lamps, filling in day time, 694
failure to extinguish, 693
time to extinguish, 692
Laundry using gasoline, 714
Lights, oil used for, 706
Lubricating oils, keeping, 694. 719
Machinery, keeping oil for, eff'ect on policy, 694, 719
Oil for illumination, 691
upon premises, 694
Owner of premises must violate terms of policy to avoid it, 696
Paint shop using oils and benzine, 711, 716
Painter keeping oils and using them, 716. 717
Patent leather factory using gasoline, 715
Powder exploding and causing damages, 697
Prohibited use not occasioning loss, 695
Premises, what constitutes, 680
Proof of custom of the usual practice, 705
Release by the insured of person causing loss, 724
Risk increased, effect, 704 *
Rope factory using oil on premises, 712, 716
Store keeping oil for sale, 70S
"Storing" meaning of term, 707
Tenant violating provisions of policy, 696
Torch, using to remove paint from building, 717
INDEX. 891
(References are to sections.)
INSURANCE — Continued.
Use of oil allowed, 701
Wagon-shop using oil, 711
Waiver of illegal use of building, 720, 721
acquiescing in prohibited use of building, 721
adjusting loss or accepting proof without objection, 723
receiving proof with knowledge of prohibited use, 722
Watch-maker using oil, 710, 712
Warranty as to conditions of store, 700
Written part controls printed parts, 688
INTEREST —
On over-due gas bills, 433
On royalties and rents, 232
INTER-STATE COMMERCE —
Overcharges by carriers of oil, 351
Transportation of oil or natural gas, 350, 351, 352, 353, 384
IONIAN ISLANDS —
Oil wells, 1, 7
ITALY —
Natural gas wells, 8
Oil wells, 7
JAPAN —
Natural gas, 8
Oil wells, 7
JESUITS —
Refer to oil springs in America, 2
JOINT LEASE —
By separate land-owTiers, 86
JOINT TENANCY—
Illustrations of in mining enterprises, 317
JOINT TENANTS —
Are not partners, 312
Co-tenants, see
Payment of rents or royalties to, 230
JUDGMENT —
Lien on exception or reservation, 307
JUDICIAL NOTICE —
Burning fluid^ 41
Chemical oil, 41
Concerning operation of oil wells, 42
Courts take of properties of oil and gas, 41, 42, 382
Taken of dangerous properties of gas, 382
JUDICIAL SALE —
Transfer of lease by sale, 199
JURY —
Contributory negligence a question for it, 652
Forfeiture a question for it, 184, 185
Questions for, in cases of negligence, 652
K
KALM. PETER —
Describes oil wells in Ohio and Pennsylvania, 2
892 INDEX.
(References are to sections.)
KENTUCKY —
Early oil springs, 2
KENYON COLLEGE —
Gas wells, 9
KEROSENE —
Judicial notice concerning, 41
KIES, SAMUEL M.—
Sold petroleum as a medicine, 14
L
LAKE —
Ownership of oil and gas beneath, 306 ^*
LAMPS —
Extinguishing pursuant to provision in insurance policy, 692, 693
What kind to be used under gas contract, 434
LAMP-POSTS —
Defined, 434
Removal, 434 '
LANDLORD AND TENANT —
Contributory negligence of tenant, 654
Fixtures, who entitled to. 573
Right of action against tenant for damages occasioned bv gas explosion,
645
Tenant, see
LARCENY —
Gas a subject of theft, 743
Oil in earth, 26
Oil in tanks or pipe-line, 46
LEAKS AND EXPLOSIONS —
Available force of gas company to prevent leaks, 616
Breaking of pipes for lack of support, 625
occasioned by ordinary use of streets, 623
Burden to show negligence of company, 610
Care on part of gas company, evidence to show, 658
required of company to prevent, 599, 600
Child, negligence of its parents may defeat its cause of action, 653
Company misleading plaintiff as to the extent of danger, 627
Concerning negligence of two or more defendants, 605
Contractor's negligence, 655
Contributory negligence of plaintiff defeats his cause of action, 048
question for jury, 652
Control of gas, company must maintain, 601
Cutting off supply of gas to pievent injury, duty of property owner
to make. 650
Deception used in sale of dangerous oil, 678
Defective barrels used in shipping oil, 374
Degree of care required of gas company. 602
Duty of gas company to prevent leaks, 599
to make immediate repairs, 616
Evidence in cases of inhaling gas, 660
to show due care on gas company's part, 658
to show other leaks, 621
of leaks, 022
of undue pressure in pipes at other places, 632
of notice to gas company of danger to mains, 626
to show effect upon growing vegetation. 662
Excavation near pipe-line causing leaks, 625
Expert evidence to show effect of electrolysis, 659
INDEX. 893
(References are to sections.)
LEAKS AND EXPLOSIONS — Continued.
Exploding tank injuring servant, 684
Explosion occasioned by violation of statute, 607
Failure of company to discover place of leakage, 613
Frost occasioning leak, 624
Gas-fitter igniting escaping gas, liability of gas company, 638
liability, 657
Gas following supply pipe from main, 629
following sewer, 629
percolating through soil, 629
turned on by owner or stranger, 644
Guest of family may recover damages of gas company, 641
Implied warranty in sale of illuminating oil, 679
Inhalation of gas, 660, 661
Insurance, see
Inspection of premises to prevent leaks, 530
to detect leaks, 615
Inspector, gas company must employ, 637
Intervening agency, 614
Landlord's right of action against tenant, 645
Laying gas mains on bed of navigable river, 608
Lessee's negligence, 655
Municipality liable for damages occasioned by it in operating plant,
628
Neglect of gas company must cause damage to render it liable, 604,
606
Negligence in turning off gas, 644
Negligently permitting oil to escape upon ground, 671
Negligeikt parent, wife or servant, 653
Night watchman, must be maintained to detect leaks, 603
Notice of leaks, duty of company, 617, 618
when not necessary to fix gas company's liability, 619
Oil exploding on trains, 375, 376
escaping from refinery and exploding, 672
Overwhelming disaster, liability of gas company, 609
OwTier of premises, when liable to injured person, 647
Person on premises by license may recover damages, 640
Plaintiff must show due care on his part, 648
Pressure of gas, undue, efTect, 604
Presumption of negligence owing from proof of explosion, 611, 612
Property owner's duty to notify gas company of leak, 626
Question of negligence, when for jury. 663
Removal from premises to escape personal injury. 649
Repairing consumer's pipes or fixtures, gas company undertaking to
make, 634
Rescuer injured by negligence of oil or gas company, 673
Reversioner's right to recover damages, 654
Sale of oil below fire test, 678
in violation of statute, followed by explosion, 677, 679
Searching for leaks with lighted candle, 051
Servant of gas company causing explosion. 633
of oil company injured by defective appliances. 670
Sewer gas driven into house by escaping illuminating gas, 636
Shade trees injured by escaping gas, 635
Shrubbery injured by escaping gas. 635
Shutting off gas and depriving city of light, 609
Stop-cock on Street line, who may open, 613
Stranger turning on gas. 644
Tenant's right of action against landlord. 646
contributory negligence may bar his landlord's right of action, bo4
894: INDEX.
(References are to sections.)
LEAKS AND EXPLOSIONS — Continued.
Third person causing explosion, 637, 638. 643
Undue pressure m gas-mains causing leak, 631
Withdrawal of gas from mains without notice, 630
LEASE OF OIL OR GAS LAJsDS —
Acceptance necessary, 84
Acknowledgment of defective, 82
Administrator, power to execute, 60
Agent of lessee, when may take lease, 89
Assignment of lease, sec
Assignee bound by terms of lease, 203
having a prior lease, 69
Blanks in unfilled, effect, 80 K
Boundaries of, how determined. 109
Cancellation by suit for failure to develop, 186
Change of by parol agreement, 83
Chattel real, may be, 51
Conditional oil or gas lease, 53, 54
Consideration, 78, 79
by court, 48
may bo purchase money, 245
what is sufficient, 66
Construction, 48, 219
Co-tenant, 275
Contract for not many. 289
damages for breach of, 294
giving interest in real estate, 52
indefinite, 291
specific performance, 293
what is sufficient for lease, 291
Damages for failure to develop premises. 104 to 106
measure for taking oil or gas illegally, 108
Default in developing lessee cannot take advantage of, 237, 238
Denial of tenancy, ?ffect, 122
Description of premises leased, 76
Development, 104 to 107
Diligence required of lessee, 54
in beginning work, 96
in operating premises after development, 97
Duration of lease^ 91
of ordinary lease, 126
Ejectment in favor of lessee, 120
Entire premises must be developed, 104 to 106
Estoppel, when lessee estopped, 84
Eviction of lessee terminates, 120, 161
Exclusive right of lessee to oil or gas, 57, 90
Excuse for not drilling test wells, 113
Execution of defective, 82
how must be made, 81
Extent of territory covered by, 77
Extension of time may amount to a new lease, 70
Father cannot make a lease of child's lands, 256
First oil lease executed in America, 16
Fixtures, see
removal from premises, 575 to 5'jr9
Forfeiture by breach of implied covenant, 91
by mortgage of leasehold premises, 174
lessee cannot insist upon, 155
Forms, appendix, see
INDEX. 895
(References are to sections.)
LEASE OF OIL OR GAS LANDS — Continued.
Free gas granted by is a covenant, 92
Guardian leasing ward's premises, •2.56
Holding for speculative purposes. 128
Homestead, how leased, 57, 62, 258
power of husband to lease, 62
How to execute, 255 to 258
Impairing value of by lessor, 100
value of, 100
value of by operating on adjoining territory, 101
Implied covenant to develop, 91
covenant to search for oil or gas, 127
Incorporeal hereditament, when is, 50
Infant cannot make, 256
Ingress and egress to leased premises, 74
Injunction to protect rights of lessee, 103
Interest of lessee in various leases, 57
Joint, given by separate owners, 86
Lessee's right of action against gas company, 642
Lex loci controls, 49
License, when is, 50
when is not, 61
Life tenant giving, 256
Limitations. 256
Married woman, 257
Merger in fee., 65
Mortgaging, 341 to 347
Natural gas, lessee not entitled to under oil lease, 118, 119
New lease may become, 73
effect upon rent or royalty, 236
Non-development of premises where no limit is fixed, 129
Notice of former lease, 69, 88
of former license, 62
to one of several lessees sufficient, 87
Oil lease does not give title to gas, 118, 119
Operations under, when must begin, 96
Option, revocation, 17.. 72
to extend term, 68
to pay rent or drill well, 73
to purchase after development, 67
Oral change discharging or changing rents, 247
Owner of land may grant a lease, 255
Partition of mineral lands, 276, 277
Parol, change of written lease by parol agreement, 83
Parol lease is only a license, 62
Paying quantities, see
as used in a lease, 134, 135, 136
Peculiarities of oil leases, 47
Personal covenants in, what are, 93
Possession of premises, lessee cannot recover after forfeiture incurred,
189
Printed form as evidence, 84
Protecting boundaries of lease, 112
Quieting title to in lessee, 103
Receiver, see
when will be appointed, 300
Rescission for fraud, 146
Reimbursing lessee for expenses, 190
when title fails, 121
896 INDEX.
(References are to sections.)
LEASE OF OIL OR GAS LANDS — Continued.
Release of lessee by substitution of assignee, 212
Rents, lessee must pay, 180
Royalties, see
Sale of oil and gas, and not a lease, 58
Second supersedes first, 69
Signing by lessee not necessary, 85
Statute of Frauds, concerning, 75, 291
Substitution of tenants, efTect, 143
Surface, right of lessee to use, 77
Taxing, 741
Tenants for life, 261 to 273
from year to year, 259, 260
from year to year, lease exists, 55
from year to year or at will, P5
Termination by failure to keep termsi of lease, 237
when occurs, 91
Territory covered by lease, 77, 78
Test well, see
depth, 113, 115
Texas lease, consideration, 56
Title to oil or gas, where rests. 34, 53, 54
Trustee of lessee is not a cestui quo trustent, 212, 214
Uncertainty, eflfect upon unconscionable contract, 123
Unilateral, may be, 56
Unprofitable, how determined, 99
may be abandoned, 99
what is, 99
Waste as between lessees, 35
Wells, see
contract to drill in vicinity, 125
diameter, 124
depth, 115
location upon premises, 109, 110
locating on strangers' land by mistake, 116
number to be drilled. 111
selection of site for, 109, 110
shooting, 117
shooting, when may be prohibited, 117
when need not be drilled, 114
Wife should join in husband's lease, 258
Written and printed clause is conflicting, 80
LEASE OF GAS WORKS —
City may lease its gas works to private company, 522
LEASEHOLD —
Fixtures situated upon, 575 to 579
LEGISLATURE —
Flambeau lights may prohibit, 28, 386
Inspection of oil may require, 387
Monopoly, see
Monopolistic contracts may authorize, 441, 442, 443
Plugging wells, may require, 43
Power to prevent waste of natural gas, 28
to regulate use of gas and oil. 25
to control production of gas, 382 >
to authorize monopolistic grants, 449
Public safety may protect, 382
Pumping gas, may regulate. 29
Rates for gas, when may change, 400 to 403
INDEX. 897
(References are to sections.)
LEGISLATURE — Continued.
Revocation of monopolistic contracts, 447
Transportation of oil and gas, limiting, 40
Use of the word " lease " does not make instrument a lease, 48
Waste of natural gas may prevent, 385, 386, 387
Wells near boundary line of lease, regulating, 102
May require them to be plugged, 385
LESSEE —
Co-lessee purchasing leased lands. 65
Default in lease, cannot take advantage of, 237, 238
Denying tenancy, effect, 122
Diligence required of to develop leased premises. 54
Draining leased premises by operations on adjoining territory, 101
Ejectment mav maintain for premises, 120
Eviction, effect, 161
Forfeiture, cannot insist upon, 155, 238, 239
Lea.se, see
Liability for leaks in gas mains, 655
Rents must pay, 180
Right of action against gas company, 642
Signing lease, need not do, 85
Tax must pay, when, 741
LESSOR —
Forfeiture, see
Lease, see
Taxes, when must pay, 741
When estopped, 182
LEX LOCI —
Law of governs provisions of lease, 49
LICENSE —
Co-tenant may give, 275
Definition of, and illustrations. 62
Dissolution of partnership revokes, 64
Exclusive license to take oil or gas, 90
Grant to occupy streets with gas mains, 489
Illustrations, 57
Interest in land, when creates, 62
Lease when not a. license, 31
Notice of prior lease, 02
Parol, 62
Personal privilege, when is, 62
Quit claim deed may create, 62
Revoking right to lay pipe-line, 366
when cannot be done, 63, 64
When creates an incorporeal hereditament, 50
LIEN —
Judgment is a lien on a reservation or exception, 307
Mechanics' Lien, see
Partner's, for money advanced, 323
Royalty is upon assets in hands of receiver, 253
LIFE-TENANT —
Accounting, rule as to, 279
Estoppel of remainderman. 272
Exhaiisting oil or gas, 271
Lease may make. 256
New wells may not drill. 263
Reversioner or remainderman opening wells. 267
Title to oil illegally severed from premises, 269, 270
898 INDEX.
(References are to sections.)
LIFE-TENANT — Continued.
Waste must account for, 268
When may drill well, 265
LIGHT —
Early use of gas for lighting, 17
LIGHTING CONTRACTS —
Action to recover for gas supplied, 432
Appropriation for, when necessary to render contract valid, 427
Assessing costs upon abutting property, 430
Assigning lighting contract, 414
Bids for lighting, 411
Contract, see
city cannot change, 417
Cost of, out of what fund paid, 426
Dating contract ahead, 462
Discontinuing use of gas, 416
Exempting gas companj^ from taxation, 425
Extension of gas mains, refusing to make, 437
Extending term of contract, 410
Free light, 424
Furnishing to city without contract, 418
How executed, 412
Indebtedness for, constitutional limit upon, 408, 409
Interest on over-due gas bills, 433
Lamps, kind to be used, 434
Length of term of contract, 409, 461
Mandamus to compel auditing of light bills, 431
Monopoly, see
Moonlight schedule, 422
Municipality, see
New territory, contract covers, 419
Offices of city interested in contract, effect, 439
Power of city to contract for light, 407
Price to be paid for gas, 423, 425
Rates, see
Receiver bound to furnish, 438
Rescission of contract for gas, 413, 415
Term for light, for how long it may be made, 409, 461
United States revenvie added to cost of gas, 435
Void contract for gas, effect of receiving gas under, 420
Waiver of quality of gas, 436
LOSS —
Implied covenant to work wells at a loss, 91
LUNATIC —
Cannot execute a lease on his lands, 256
M
IVIACHINERY —
Fixtures, see
Removal after forfeiture of lease, 191
MALICE —
Element of damage in boring well, 32
MANDAJVIUS —
Auditing gas bills, to secure, 431
Insufficient quantity of natural gas,*no defense, 531
Payment of bills, to compel, 431
Permit to occupy street, to secure, 480
Subscribing to illegal rules and regulations, 538
To secure supply of gas, 531, 532, 538
INDEX. 899
(References are to sections.)
MARCO POLO —
Refers to natural gas, 8
MARRIED WOMAN —
Interest in reservation, 308
Should join her husband in lease of his lands, 258
When may lease her lands, 257
MAYOR —
Interest in city contract for light, 439
MECHANIC'S LIENS —
Assignment of claims carries, 338
Attorney fees covered by assignment of claims, 338
Contract necessary to establish, 328
Custodian entitled to, 331
Derrick, lien for building, 330
Description of land in notice, 337
Foreman entitled to take, 331
Forfeiture of lease, effect, 334
For what labor a lien may be obtained, 330
For what material furnished a lien may be obtained, 329
Labor or material must be furnished under a contract, 328
Lubricating- oil furnished for machinery, 327
Machinery for leased premises, 329
Notice of claim of lien, 337
Oil refinery subject to, 334
On plant of public gas company, 339
Overseer entitled to, 331
Paraffine works subject to, 340
Pipe furnished for well. 329
hauling for use in well, 330
Priority of liens, 336
Retroactive effect of mechanic lien laws, 335
Superintendent entitled to, 331
Tools furnished mine, 329
Upon what interest it may be taken, 332
Well, drilling, gives, 333
MEDICINE —
Barbadoes Tar. 14
Petroleum used as, 14
MERGER —
When license merged in fee, 65
METER —
Action to secure inspection, 555
Charging rent for unless a certain quantity of gas is used, 562
Consumer, see
Control, 553
Defined, 551
Delivery of gas, complete when has passed meter, 559
Discrimination in use, 563
Extra charge for. 561
Fixtures, when meters are, 568
Governor to control supply of gas, 553
Inspection by conipany, 555
official, 556
official when measurements conclusive, 557
Measurements of quantity of gas used, 558
officially tested meters, 557
Nimiber company must furnish, 552
Officially tested "meters conclusive in their measurements, 557
900 INDEX.
(References are to sections.)
METER — Continued.
Removal, 564
Rent for may be charged, 562, 564
Rules and regulations concerning, 560
Taxing, 556
Testing, 556
Unreasonable requirements, 554
Who must furnish, 552
MEXICO —
Oil wells, 7
MINERALS —
Natural gas is a mineral, 29
Oil is a mineral, 29, 304
Reservation of includes oil and gas, 304
Taxing, 741
MIXER —
Defined, 221, 551
Extra charge for, 561
Unreasonable requirements concerning, 554
Who must furnish, 552
MOLDAVIA —
Oil wells, 1, 7
MONOPOLY —
Construction of exclusive grants, 446
Dating lighting contract ahead, 462
Division of subject, 440
Estoppel to contract, 450
Exclusive franchise strictly construed, 446
for artificial gas does not exclude natural gas, 455, 742
Federal question, when raises, 451
Forfeiture of exclusive franchise, 452, 454
Gas works building under void grant or franchise, 457
Injunction against passage of ordinance. 453
Legislature cannot revoke, 447
cannot authorize, 449
may authorize, 441, 442, 443
Statute to authorize exclusive grant necessary, 444, 449
Streets, see
Void, when clause does not make. 452
MORTGAGE —
Accounting by mortgagee for profits received, 346, 347
Fixtures may take, 571, 577
Leasehold interest may be mottgaged by lessee, 341
May work a forfeiture of lease, 174
Miner may mortgage premises. 341
Mortgagee in possession, 346, 347
Municipal gas plant may be mortgaged, 348
Owner of land may take out g^is and oil from mortgaged lands, 344, 345
Pennsylvania statutes concerning, 343
Verbal agreement for, 342
Waste, 344, 345
committed by mortgagee, 346, 347
MUNICIPALITY —
Action against to recover cost of gas, 432
Appropriation for light, when necessary, 427
Assessing abutting property for gas or light, 430
Assignment of lighting contract, 414
Bids for lighting, 411
INDEX. 901
(References are to sections.)
MUNICIPALITY— Continued.
Breach of lighting contract, 413
Charter granted by is a contract, 391
City agreeing not to compete with gas company, 448
Competing witli gas company, agreements to not do so, 448
Competition v/ith private plant, 516
Contract, see
for light cannot be changed, 417
Delegating of power to change gas rates, cannot make 404
Discontinuing use of gas, 416 '
Election to authorize purchase or erection of gas plant, 517
Exempting gas company from taxation, 425
Extending boundaries after contract made for gas, 419
Extending term of contract for light. 410
Free light, 424
Gas furnished Avithout contract. 418
Gas mains, extending, 437
Gas works, its own may lease, 522
owning, 511, 512, 513
purchasing, 519
selling its o\v^l, 521
sole proprietor must be, 518
statute necessary to build, when, 512, 513, 514
How executes contract for light, 412
Indebtedness, constitutional limit upon, 408, 409
Interest, pays on over-due bills. 433
Lamps, what kind must use under contract, 434
Lamp posts, 434
Length of term for lighting contract, 409
Liability in operating gas plant, 628
Light, see
Light, exhaustion of appropriation. 428
moonlight schedule, 422
quality of gas or light furnished. 436
out of what fund paid for, 426
tax to pay for. 429
Mandamus, see
Mandate to compel auditing of bills, 431
Monopoly, see
Moonlight schedule, 422
Oil turning into sewer, liability. 668
Police power cannot abrogate. 391
Power to make lighting contract. 407
to change rates for gas. 400
Price must pay for light. 423. 424, 425
Profit may make on gas furnished, 515
Rates for gas, see
fixing in ordinance granting franchise, 394
in annexed territorj', 405
regulating after ordinance granted, 393
statutory authority necessary to fix, 392
Received bond to furnish light under contract, 438
Rescission of lighting contract. 413, 415
Regulating gas company, 99
Rules and regulations may adopt for gas consumers, 523
Shutting oflf gas, when may, 547
Stock may take in gas plant, 518
Streets, see
Tax to pay for or support gas plant, 429
902 INUEX.
(Referencts are to sections.)
MUNICIPALITY— Continued.
Town becoming city, effect on gas company, 4SG
Trustee for gas works, 520
Void contract, gas furnished under, effect, 420, 421
MURRYSVILLE —
Gas wells, 9
N
NAPHTHA —
A dangerous agency, 374, 375
Sale for illuminating oil, liability, 678
NATURAL GAS —
Article of commerce, 40, 350
Artificial gas, contract concerning does not relate to natural gas, 455,
742
Damages for unlawfully taking from well, 33
Dangerous, is, 382
Early indications in America, 9
Elements in composition, 12
Failure of supply, 531
right of gas company to discriminate between customers, 526
Flambeau lights, use of may be prohibited, 386
Fugitive nature, 21, 24, 25 "
Gas, see
Gas wells not synonymous with oil wells, 118, 119
Heat, natural gas is not, 39
Highways, ownership of gas beneath, 306
Illegal severance from earth, 27
Injunction to prevent waste. 598
Judicial notice of nature of, 41
Lake, title to gas beneath, 306
Larceny, 26
Not synonymous with oil, 37. 455, 742
Origin. 10
Ownership in ground, 20, 21, 22, 24, 25
in pipes and tanks. 26
Payment so much per well, 223
Paying quantities, what is considered to be, 136
Pressure in pipes, regulating, 383
Presumption as to ownership in land, 59, 60
Prohibiting transportation beyond state lines. 29, 384
Production will not prevent forfeiture of oil lease, 164
Pumping, regulating, 29, 394
Realty, a part of, 19
Reservation of minerals includes, 304
River, ownership of gas beneath, 306
Sale and not a lease of gas lands, 58
Sea, ownership of gas beneath, 306
Severance from realty, 26
Tariff, not subject to, 44
Title to. lessee, when acquired, 34
when vests in owner of ground, 22
Transportation, 350 to 354 ^'
Volatile substance, when is not, 38
Waste, injunction to prevent, 28, 385, 386
may be a nuisance, 598
prohibiting, 28, 385, 386
When found, 8, 9
INDEX. 903
(References are to sections.)
NATURAL GAS — Continued.
Who entitled to vmder oil lease, 119
Wild animals, compared with as to ownership, 21
MECESSARY OF LIFE —
Artificial gas is not, 748
NEGLIGE^X'E —
Benzine used in paint exploding, 675
Care required, 671
Carriers of oil, negligence of, 351
Child, negligence of its parents defeating cause of action, 653
Company misleading plaintiff" as to extent of danger, 627
Concurring negligence of two or more defendants, 605
Contractor occasioning injury, gas company liable, 605, 681
Contributory negligence a question for the jury, 652
of tenant may bar landlord's right of action, .654
Danger from exploding oil, 375
Defective cars used in carrying oil, 371, 372
Degree of care required of gas coinpany, 601
Duty of company to make immediate repairs, 616
Exploding gasoline fire-pot, 669
tank injuring servant, 684
False brands misleading dealer, 670
Fire communicating wiih adjoining house, 671. 672
Fire on railroad communicating with refinery, 665
Gas-box occasioning injury, 680
Illegally storing oil at laili-oad stations, 379
Imperfectly constructed gas building occasiomng injury, 683
Implied warranty in sale of ilhnninating oil, 679
Inspection of pipes to detect leaks, 615
right of company to inspect premises, 615
of pipe-line, 378
Intervening agency, 614
Jury, when question of negligence submitted to them, 663
Leaks and explosions, set
Minor employee's oil-soaked clotlies catching fire, 674
Oil escaping from pipe-line, 377
from refinery, 672
into sewer, 668
Pipes used Avithout knowledge of defects in them, 747
Question of negligence, when for jury, 663
Refinery burned by railroad company, 665
Repairs, duty of gas company to make, immediately, 616
Rescuer injured by negligence of oil or gas company. 673
Reversions^ when may recover damages caused by an explosion, 654
Right of action over against wrongdoer. 656
Sale of naphtha for illuminating oil, 678
Servant of company injured by defective appliances, 676
entitled to safe place in which to work, 685
defective ladder injuring, 686
of purchaser injured by exploding oil, 677
Shipping oil on trains carrying other goods, 373
Shooting wells, 667
Statute changing rule as to rendering company liable. 606
Stop-cock, failure to provide, 666
Storing oil in warehouse, 380
Streets, see
rendered dangerous by laying gas mains, 682
Thief setting oil on fire, 381
904 INDEX.
(References are to sections.)
NEW YORK —
Fiedonia gas well. 9
Oil spring within discovered at an early date, 3
NEW ZEALAND —
Oil wells. 7
NINEVEH —
Asphalt used in cementing wails, 1
NITROGLYCERIN —
Exploding in oil or gas well, 31
NOISOME SMELLS —
When a nuisance. 586, 587, 588
NOTICE —
Change of gas rates by city, 400
Election to declare forfeiture of lease, 158
Evadence of other leaks, to show. 621, 622
to company of danger to mains, 620, 622
Improperly recorded, 88
Leaks (of), duty to prevent, 615 to 619.
Prior lease, 69. 88
Property owner's duty to notify gas company of leaks, 626
To one of several joint lessees suHicient, 87
Withdrawing gas from mains without giving notice, 630
NUISANCE —
Blocking highway or street, 465
Business being authorized by State is no defense, 591
Damages occasioned by storing or bringing oil on land, 584
Degree of annoyance from escaping gas, question for jury. 589
Duty of owner to prevent continuation of damages, 592
Evidence concerning, 593
Former recovery, when a bar, 596
Gas-box in street is not. 498
Gas or oil well near dwelling house, 590
Indictment, concerning, 597
Injunction to prevent, 594. 595
Jury when to determine question of, 589
Noisome smells. 586, 587. 588
Obstructing street, 494
Pollution of springs or well, 581, 582, 607
Stream polluting. 582
Subterranean waters, polluting, 583
Trees and vegetation destroying, 585
Well polluted with gas, and yet good for some purposes, 607
O
ODORS —
When a nuisance, 586, 587, 588
OHIO —
Early gas wells, 9
Early oil springs, 2, 4
OIL —
Contract for purchase, 745
Deception used to secure sale of dangerous oil, 678
Implied warranty in sale of illuminatijig oil, 678
Inspection of. State may require, 388
Leaks and explosions, see
Negligence, see
Not synonymous in statute with gas, 37
INDEX. 905
(References are to sections.)
OIL — Continued.
Ordinance may regulate storage, 380
Petroleum, see
Sale of oil of low fire test, explosion, 677, 678
Taxing. 741
Term "fire proof oil" is not a trade mark, 746
United States may not prohibit sale of, 390
OIL REFINERY —
Negligence, see
Subject to mechanic's lien, 340
OLD TESTAMENT —
Contains reference to petroleum, 1
OPERATIONS ON LEASED PREMISES —
Celerity with which must be ])ushed, 96
Cessure after work begun, 140, 141
Diligence in operating leased premises after development, 97
Failure to operate and not failure to develop, 162, 163
Inability to begin operations, 173
Obligation of lessee to operate premises implied, 151
Temporary suspension of, eflfect, 141
When must be begun, 90
OPTION —
City to purchase gas woiks, 458
OPTION FOR LEASE —
Assignment of lease carries, 198
Consideration for, 60, 67, 71
Essence of, 72
Extension of lease, 68
Leases, see
Payment of rent instead of developing premises, 145
Purchase of land after development, 67
Right to pay rent or drill well, 73
Revocation, 71, 72
Time for performance, 73
What is an option, 62
When must be general in the regulation of street, 460
ORAL AGREEMENTS —
Statute of Frauds invalidates, 75, 76
W^ritten lease may be changed by, 83
ORDINANCES —
Enjoining passage of by city council, 453
Rates for gas fixed by 392,' 393, 394
ORTON, PROFESSOR —
Theory of origin of petroleum and gas, 10
OVERCHARGE —
Recovering back, 544
OWNERSHIP —
Oil and natural gas in earth, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29
PAINT SHOP —
Using benzine in for painting purposes, insurance, 675
PAROL AGREEMENTS —
Statixte of Frauds avoids parol leases, 75, 76
PARSEES —
Worshiped natural gas, 8
906 INDEX.
(References are to sections.)
PARTITION —
May be made of mineral lands, 276, 277
When does not lie, 36
Works a dissohition of mining partnership, 320
PARTNER —
Community of interest, 312. 315
Confidential relations, 312
Co-tenants, see
Each partner liable for all partnership debts, 325
Incoming partner liable for debts, 324
Lien upon partnership assets, 323
Promotors and prospectors are not partners, 318
Selection, who makes. 315
Tenants in common are not partners, 311, 316
PARTNERSHIP (MINING; —
Association of several lessees in mining enterprise, legal eflfect, 316
Borrowing money, power of partner to do so, 322
Buying supplies for, who may, 322
Debts of, partner liable for all partnership debts, 325
liability of incoming partner for, 324
Dissolution revokes license, 64
what occasions, 319
Duration of mining partnership. 319
Fidelity relations between partners, 288
Heir's right in mining property, 315
Hiring labor, power of partner to do so, 322
Illustrations of what make mining partnerships, 317
Lien of individual partners, 322
Limited partnerships, 326
Majority of partners control mining operations, 321
Mining agreements that create ordinary partnerships, 313
applicable to gas and oil operations, 310
associations may become an ordinary partnership. 312
Partition and accounting works dissolution of partnership, 320
Partners, selection, 315
Power of partners in mining or oil enterprises, 322
Presumption of equality of interest of partner, 319
Sale of interest, effect on partnership, 315
Tenants in common not partners, 311
Working mine together creates mining partnership, 314
- PASSENGEPvS —
On train injured by exploding oil, 375
PAYMENTS —
Application, 136
PAYING QUANTITIES —
Defined, 134, 135, 136
PENNSYLVANIA —
Early gas wells, 9
Mortgaging lease, statute concerning, 343
Taxing pipe lines and petroleum, 740
PERSIA —
Oil wells, 7
•'PETROLEUM— *
Article of commerce, 40, 350
Composition. 11
Damages for unlawfully taking from well, 33
Dangerous agency is not, 372, 374
INDEX. 907
(References are to sections.)
PETROLEUM — Continued.
Defective barrels used in shipping, liability, 374
Early attempts at refining, 12
at transportation. 15
Escaping from pipe lines, liability, 377
Fugitive nature, 21, 24, 25
Highway, ownership of beneath, 306
Illegally severing from earth, 27
storing at railroad station, 379
Ingredients, 11
Judicial notice of properties. 41
Lake, oil beneath, ownership, 306
Larceny of when in pipe lines, 46
generally. 26
Mineral, oil is. IS
Origin, 10
Ownership in ground, 20, 21, 22, 24, 25
in pipes and tanks, 26
in pipe lines, 355
Presumption of owTiersliip in land, 59, 60
Production of will not prevent forfeiture of gas lease, 164
Pumping, 30
Sale of oil lands and net a lease, 58
Shipping on train carrying other goods, 373
Storing in warehouse, negligence, 380
Realty is a part of, 18
Reservation of minerals include, 304
River, beneath, ownership, 306
Sea, beneath, ownership. 306
Severance from realty, efl'ect. 26
Thief setting oil on fire, negligence, 381
Title to oil in tanks or pipe lines, 46
when vests in owner. 22
when lessees acquire, 34
Transportation with defective appliances, 371, 372
Use of as a medicine, 14
\^'aste of gas, when drawing oil from well, 385
Wild animals compared with wandering nature of, 21
PHILLIP'S WELL —
\Miere drilled, 6
PIPES —
Abutting land owner removing pipes from highway, 508
Breaks occasioned by frost, 624
by ordinary use of street, 623
from lack of support, liability of gas company, 625
Changing grade of streets, 493
Condemnation of highway for pipes, 503
Consent of county authorities to lay in highway, 506
Crossing highway, 506
Defective, will not always render company liable for leaks, 747
Depth at which should be laid in streets, 480
Evidence of undue pressure in places other than place of leak, 632
Excavations near pipe line causjing break, liability of gas company,
625
Extension of mains to supply customers with gas, 528, 529
Fixtures, when are, 571, 572, 573
Gas mains, see
Injunction to restrain laying in streets. 487
Injuries occasioned by laying gas pipes in streets, 682
908 INDEX.
(References are to sections.)
PIPES — Continued.
in repairing streets, 496
Inspection of pipes required, 615
In streets, not an additional burden on fee, 500
Laying in country higlnvay. 502 to 500
in navigable river, 501
in streets, consent of city required, 466, 468
Notice to gas company of danger to its mains, 620
of leaks in pipes. "620, 621, 622
Personal property of gas company, 579
Removal, when unlawfully laid in highway, 509
Revocation of license to use highway, 507
Street unlawfully laid out, pipes laid in, 488
Support of. 497, 368
Supply pipe, ownersliip, 550
Taxed as personal property. 730
Undue pressure of gas causing leaks, 631
Use of surface of highway or street, 510
PIPE-LINES —
Coal mine beneath, support, 368, 407
Conversion of oil in, 46
Crossing right of way of railroad company, 365
Damages occasioned by removal from right of way, 364
Early attempts at vise of, 15
Eminent domain used to secure right of way for, 356, 357, 358
Exemption from taxation in Pennsylvania, 740
Inspecting, 378
Laying in country highway. 360
License to lay pipe-lines, revocation, 366
Measure of damages in taking right of way for, 361 to 364
Number that can be laid in right of way, 259
Oil escaping from, 377
Ownership of oil in process of transportation, 355
Personal property of gas company. 579
Petition to secure right of way for, 367
Pressure in of gas may be regulated, 383
Removal. 579
Support, right to, 368
Use in transportation of gas and oil, 350 to 354
PLINY —
Refers to oil springs, 1
PLUMBER —
Causing explosion, liability of gas company, 638
Gas mains, see
POLICE POWER— '
Abandonment in fixing rates for gas, 398
Granting a charter does not repeal police power. 391
Inherent power to regulate gas company, 399, 406
Legislature may exercise, 382
I Rates, fixing, does not authorize, 406
Regulation of transportation of oil or gas, 355
POSSESSION —
Effect of taking under contract for lease, 292
PREMISES — >-
Defined in insurance cases, 689
PRESUMPTIONS —
Arising from proof of explosions. 611. 612
Ownership of oil or gas in land, 59, 60
INDEX. 909
(References are to sections.)
PRIVITY OF ESTATE —
Possession of asignee, 203
PROFITS —
Defined, 224
PROMOTERS —
Are not partners, 318
PROSPECTORS —
Are not partners, 318
PUBLIC LANDS —
Locations and entiy of oil and gas claims, 309
PUMPS —
Use of to increase flow or gas or oil, 29, 30
Q
QUIETING TITLE —
Title of lessee when may be, 103
QUO WARRANTO —
Action, see
Forfeiture of right declared by to occupy streets, 491
R
RAILROAD —
Common carriers, see
Crossing right of way with pipe-line, 365
Negligence, see
RATES FOR GAS— , ^ ^ .
Acceptance of provisions of subsequent ordinance that changes rates lor
gas, 396
Action to lecover price of gas, 545
Annexing territory, rate for such territory, 405
City reguhiting rate after franchise granted, 393
City must have statutory authority to fix rates, 392
Classification of customers, 543
Collection of, how made, 545
by distress, 546
Consumer, see
Delegation of power to determine, cannot be done, 404
Extra charge for meters and mixers, 561
Fixed by city in its consent to assignment of franchise, 395
in ordinance granting franchise, 394
Government tax may be added to price of gas, 561
Notice by city of intention to change rates, 400
Overcharges, can be recovered back, 544
Police powers not abrogated in fixing rates, 406
cannot be abandoned, 398
Power to change, 400
Prices to be charged to customers. 539, 542
in other states fixing, 539. 542
Prohibition to change for specified time, 397
Reasonable, must be. when changed by city or state 401 to 40.3
Requiring certain quantity per month to be used. 5b-
Taxes are not rates. 734
When may be changed by city or state, 401. 402, 4U.i
REAL ESTATE —
Contract for oil may give an interest in land. .>-
Lease, see i -q
No interest in land vests if no oil or gas discovered, o6
Oil and gas a part of land. 19
Refinery burning, 665
910 INDEX.
(References are to sections.)
RECEIVER —
Liable- for royalty on oil he takes out, 253
Light, when must furnish, 438
Lighting contract, wlien may rescind, 414, 415
Tenants in common of oil (for). 316
Title to oil lands in dispute, 300
When will be appointed to operate gas wells, 300
RE-ENTRY —
Release of premises equivalent to, 167
When necessary to enforce forfeiture, 166
REFINERIES —
Burned by negligent act of railroad company, 665
Early refineries, 13
Permitting oil to escape from into harbor, 672
REFINING —
Early attempts at refining petroleum, 13
REGULATIONS —
Power of legislation to regulate use of oil and natural gas, 25
Rules, see
REIMBURSEMENT —
Insurance, see
When an operator entitled to, 121
RELEASE —
Equivalent to a re-entry, 167
REMAINDERMAN —
May not drill wells, 267
When estopped, 272
RENT —
Abandoning lease, falling due thereafter, 137
Co-tenant may receive, 287
Defined, 221, 222
Eviction releases lessee for rent, 241
Failure of oil, rent ceases, 248
Free gas, 225. 226
Instances of lessee's liability, 250
Inter-dependent conditions, 235
Joint lessor.Sj 230
Lessee must pay. 180
cannot avoid by taking advantage of forfeiture, 155, 238, 239
Mining rents defined. 221
New lease effect upon, 236
Option to pay rent or drill well, 73
Oral change of terms of lease. 247
Payment of rent if well is not drilled, 242
instead of developing premises, 145
must be made although no oil on premises, 179
will not prevent forfeiture for neglect to develop, 178
Royalties, see
is a rent, 221
Surrender necessary to evade liability fof, 240
To whom payable. 230
Various kinds, 220
Waiver of right to exact^ 233
When due for failure to develop land, 229
INDEX. 911
(References are to sections.)
RESERVATION —
Distinction between and an exception, 302
Exception, see
Of all minerals includes gas and oil, 304
Restriction of right to drill for oil, 305
Severance of mineral by use of, 303
Subject to lien of judgment, 307
What, is of gas and oil, 35
Wife's interest in, 308
REVERSIONER —
May drill wells, 267
When may recover damages caused by an explosion, 654
RIVER —
Laying gas pipes in, 501, 608
Oif beneath, 306
ROYALTIES —
Abandonment, royalties falling due after, 137
Account rendered^ 251
Assigned, may be, 202
Co-tenant may receive, 287
Damages for failure to deliver to lessor his share, 231
Defined, 221, 222
Failure to pay, effect, 177
of oil, rent ceases, 248
Gas or oil used to operate leased premises, 227
How collected, 252
Income defined, 224, 225
Instances of lessee's liability, 250
Inter-dependent conditions, 235
Interest on, when begins to run, 232
Joint lessors, 230
Lessee can avoid by taking advantage of forfeited clause, 238, 239
Lien, occurring during receivership, 253
Minimum production allowed, 243
New lease, effect upon, 236
Option to pay or drill well. 73
Oral change of terms of lease, 247
Payment, so much per well, 223
Percentage of profit or income^ 224
Purchase money for premises, when is, 244
To whom payable. 230
Various modes of fixing, 220
Waiver of right to. 233
When due, 228, 229
RULES —
City may adopt for its customers, 523
Consumer, see
Gas company has a right to adopt for its customers, 537
Meter regulations, 560
Regulations, see
Removal of meter, 564
Subscribing to, 538
SALE —
Lease, see
Municipal gas works may be sold by city. 521
912 INDEX.
(References are to sections.)
SARDINIA —
Oil found there, 1
SCONCES —
When are fixtures, 568
SCOTLAND —
Oil wells, 7
SEA —
Ownership of oil beneath, 306
SENECA —
Oil describes, 3
SERVANT —
Exploding tank injuring, 684
Injured by use of defective ladder, 686
Injured by defective appliances, 676
Purchaser injured by exploding oil. 677
Safe place in which to work is entitled to, 685
When may recover for injury, 666
SEWERS —
Gas driven from sewer into house by escaping illuminating gas, 636
Gas escaping into sewer from pipes and entering house, 629
Oil escaping into sewers and causing fire, 668
SHADE TREES —
Escaping gas injuring, 635
SHUTTING OFF GAS —
Meaning of when used in contract, 744
SHRUBBERY —
Escaping gas injuring, 635
SICKNESS —
Occasioned by failure to supply gas, liability, 534
SIDEWALK —
Occupying with gas pipes, 474
SILLIMAN, JR., BENJAMIN —
Description of oil springs, 3
SMOKE —
When a nuisance, 586
SOUTH AMERICA —
Oil wells, 7
SPECIFIC PERFORMANCE —
To enforce contract for lease, 293
SPRING IS —
An oil spring, 1
SPRINGS —
Pollution, 581
STATE —
Waste of natural gas may prevent, 598
STATUTE OF FRAUDS — ^
Assignment of contract. 94
Contract for lease, sulficiency, 291 .
Decisions concerning, 75
STATUTE OF LIMITATIONS —
Acquiring right to oil or gas by adverse possession, 299
No bar to an accounting, 301
INDEX. 913
(References are to sections.)
STOP COCK —
Neglect in not providing, liability of gas company, 665
On street, who may open, 613
STOVES —
When gas stoves are fixtures, 568
STREAMS —
Pollution by gas works, 582
Subterranean, polluting, 583
STREETS —
Change of grade, effect on pipes, 493
Change of use of franchise, 478
Conditions of grant to use street must be performed, 472
Consent of municipality to occupy streets is necessary, 466
when not necessary, 468
Consolidation of gas companies occupying streets, 485
Control, 464
Cutting into improved pavements, 495
Defined, 463
Forfeiture of right to occupy, 490, 491
waiver, 492
Franchise, see
acceptance of grant, 471
to occupy, disused, 469, 470
Gas boxes in street, 498
Gas posts in street, 499
Grant of right to occupy street strictly construed, 473
before company organized, 482
Highway, see
Indictment for obstructing, 495
Injunction, see
to restrain laying pipes, 487
to protect company's rights, 481
Injury to pipes in repairing streets, 496
to persons occasioned by laying gas mains therein, 682
Length of time of grant to occupy, 483
License to occupy, 489
Monopoly, see
Natural gas company may not use for artificial gas, 478
New, right to occupy, 475, 476
Obstructing with pipes, 494
Ordinance granting right to occupy when void, effect, 479
Ordinance to occupy with gas mains, 460
Permission to occupy streets, 495
Pipes, see
laying in streets, 466. 468
not an additional burden, 500
Regulation of right of gas company to occupy, effect, 480
Repairing, 495
Revocation of grant to occupy, 489
Right to grant a franchise not property of city, 467
Sale or assignment of right to occupy, 477
Sidewalk a part of, 474
Specification of in grants, 474, 476
Statute necessary to authorize city to give an exclusive grant, 444, 445
Support of gas mains. 497
Surface of cannot be used for pipes, 510
Tearing up, 494. 495
Termination of life of corporation before expiration of franchise, 484
914 INDEX.
(References are to sections.) ^
STREETS — Continued.
Territory annexed to another city after grapt made, 475
Town becoming a city, effect on gas company, 486
Unlawfully laid out. effect on gas company occupying with its mains,
488
Use for private purpose cannot be made, 465
What streets gas company may occupy, 474, 476
SUB-LEASE —
Assignee of lease, see
Assignment of lease is not a sub-lease, 197
Defined, 217
SUB-LESSEE —
Assignee of lease, see
Liability of sub-lessee, 217
SUBTERRANEAN WATERS —
Polluting, 583
SUIT —
Action, see
Cancellation of part of lease, 186
Forfeiture, see
Lease, see
SUMATRA —
Oil wells, 7
SUPPORT —
Right to have for pipe line, 368
SURETY —
When assignor of lease is liable on account of lease, 216
SURFACE —
Oil must be brought to surface to comply with terms of lease, 176
Owner of mineral not co-tenant with owner of surface, 280
Right of lessee to use, 77
SURRENDER —
After assignment, 168
Co-tenant may make or receive, 284, 286
Involves yielding up the lease or premises, 142
Necessary to evade liability for rent or royalty, 154, 240
Parol, by. may be, 144
Substitution of tenants or assignment of lease, 143
When necessary, 142, 144, 234
' SYNONYMOUS —
Gas is not with oil, 164
Natural gas grant has no application to artificial gas grant, 455
Oil lease not with gas lease, 37, 118, 119
Statute relating to artificial gas has no application to natural gas, 742,
478
T
TABLES —
Composition of petroleum, 11
of gas, 12
TANKS —
Assignment of lease does not carry c*l in. 254
Exploding tank injuring servant, 684
TANK CARS —
Use of defective cars in transporting oil, 371
Use of in transporting oil, 351
INDEX. 915
(References are to sections.)
TARIFF —
Natural gas not subject to laws of, 44
TAXES —
Adding to price charged for gas, 561, 737
Exemption from taxation, 728, 740
from in fixing price for gas. 425
of municipalities from taxation, 733
of property of manufacturing company, 729
Franchise, owning, 735
Gas mains of city plant taxed as personal property, 730
Inter-state commerce law does not prohibit, 739
Leases and minerals, 741
Lessees when must pay, 741
Meters, 556
Object of tax. when must be stated in statute^ 736
Oil in pipe-line. 739
Rates for gas charged consumers are not taxes, 734
Tax to pay for gas or to support gas plant, 429
Stock and valuation, 732
when exempt from taxes, 728
Surplus, certificate of, taxing, 732
United States revenue adding to cost of gas, 737
TENANCY —
At willj 55
From year to year, 55
TENANT —
Contributory negligence of may bar landlord's right of action, 654
Co-tenant cannot bind his fellow tenant, 62
Fixtures, right to, 573, 574
Insurance policy, violating its provisions, 696
Joint lease by separate land owners, 86
Landlord and tenant, see
Right of action against landlord, 646
Shutting off supply of iras because old bills not paid, 547
Subsequent tenant not liable for former tenant's gas bill, 547
Supplying with gas, gas company must, 526
When relation of landlord and tenant creates, 57
TENANTS IN COMMON —
Are not partners, 311, 316
Co-tenant, see
cannot bind his fellow tenant, 62
Liability of assignee of part interest in lease, 207
Payment of rent or royalty to one tenant, 230
Two tracts of land drained by one well, 246
TENANTS FOR LIFE —
May work open mine, 259
Oil wells already open may work, 261, 262
When may open new mines, 260
may take out oil or gas, 35
TAXATION —
Cost of inspecting meters, 735
Exemption from taxation, 740, 729
of municipality from, 733
Franchise, 731
Gas mains, 730
Interstate commerce, 739
Leases, 741
916 ■' INDEX.
(References are to sections.)
TAXATION — Continued.
Object of tax, stating in statute, 736
Product in pipe-lines, 739
Rates charged consumers are not taxes, 734
Stock, valuing, 732
Set-off, 738
Surplus, 732
TAXES —
Consideration of gas contracts, 56
THIEF —
Setting oil or gas on fire, 381
TITLE —
Interest of lessee in various leases, 57
Failure of, reimbursement of oil operator, 121
Life tenant severing oil from premises, 269, 270
Non-productive well, effect, 139
Oil in tanks or pipe-lines, 46
Owner of land has to oil or gas, 24, 25, 26, 27
Severance of oil or gas from land, effect, 26
When title to oil or gas vests in lessee, 53, 54
TRADE MARK —
The term fire proof oil is not, 746
TRANSPORTATION OF OIL OR GAS —
Carrying gas beyond state boundaries, 352
Defective cars causing fire, 605
Early history of pipe-lines. 15
Injury occasioned by reason of defective cars or track, 371 to 376
Inter-state commerce, 350 to 353, 384
Limiting that of oil or gas, 40
Of oil or gas a public use, 350
Prohibiting transportation of natural gas beyond state lines, 384
TREES —
Destroyed by gas, 585, 662
Shade trees, see
TROVER —
Lies to recover oil, 27
TRUSTEE —
To operate city's gas works, 520
TRUSTS —
Unlawful combinations, sec
U
UNLAWFUL COMBINATIONS —
Between gas companies, 459
UNITED STATES —
Early indications of natural gas. 9
May not prohibit the sale of naphtha, 390
Oil wells in, 7
Refining petroleum in. 13
Revenue tax added to cost of gas, 435
Taxing gas plants and gas, 737
Tariff, see *
V
VEGETATION —
Destroyed by leaking gas, 585
Proof of effect of gas upon, 662
INDEX. 917
(References are to sections.)
VENDEE —
Fixtures on coal or mineral lands, 575, 577
When entitled to fixtures^ 570
VICINITY —
Defined in contract to drill wells, 125
" VOID "—
When means voidable, 151
VOLATILE SUBSTANCE —
Whether gas is or not, 38
W
WAIVER —
Insurance, see
Of forfeiture, 159, 160
Of right to rent or royalty, 233
Quality of gas or light may be waived, 436
WALLACHIA —
Oil wells, 1, 7
WARRANTY —
Implied warranty in sale of illuminating oil, 679
In policy of insurance, 700
WASTE —
Guardian guilty of, may be, 35
Injunction to prevent, 35
Lessees as between, 35
Life tenant must account for, 268
Mortgagee committing, 346, 347
Mortgagor may take out gas and oil from land, 344
Natural gas may be a nuisance, 598
Tenant for life taking out oil or gas, 35
Wells near boundary lines are not, 35
WATCHMAN —
Gas company must maintain to detect leaks, 603
Inspectors, see
Leaks and explosions, see
Night watchman to detect increasing pressure of natural gas, 603
WAYS —
Streets, sec
WELLS —
Agreement concerning locating near boundary lines of lease, 102
Boundary line upon, to protect territory, 91
Coal mine, passing through. 309
Contract to drill in the vicinity, 125
Damages for failure to drill, 104
Depth, 115
Diameter, 124
Draining premises by wells on adjoining territory, 101, 102, 171, 172
adjoining territory, 101. 102
Excuse for not drilling, 112. 113, 114
Forfeiture, recovery of expense of not drilling, 137
Gas to run drilling apparatus, 549
Injury to property occasioned by shooting, 667
Leases, see
Lessor drilling on adjoining premises, 100
Lien upon for supplies furnished, 333
Life tenant, see
right to drill well. 263, 265
918 INDEX.
(References are lo sections.)
WELLS — Continued.
Located on stranger's land, 116
Locating, 109
Maliciously drilling to another's damage, 32
Non-productive, .efl'ect on title to leased premises, 139
Nuisance, see
when may be. 59
Number that must be drilled. 111, 112, 139
Option, see
to drill or to pay rent, 73, 242
One well draining two tracts of land. 246
Payment of rent when wells not drilled. 73, 242
Payment for natural gas so much per well, 223
Plugging natural gas wells, 43
state may require, 385
Pollution of water wells by gas works, 581
water still good for particular purposes no defense, 607
Piunping, see
Royalties, two tracts of land drained by one well, division, 246
Selection for site for, who makes, 110
Shooting. 117
Test wells, see
well, when need not be drilled, 114
Three months cessure of work upon, eflFect, 140
Waste, see
of gas in operating oil wells, 385, 387
of gas prohibiting, 385, 387
WEST BLOO]MFIELD —
Gas wells. 9
WEST INDIA ISLANDS —
Oil wells, 7
WEST VIRGINIA —
Earl}^ oil springs, 2
WIDOW —
When may drill wells on dower lands, 261
WILD ANIMALS —
Ownership of oil and natural gas compared with ownership of wild
animals, 21. 24, 25, 29
WORK —
Celerity with which must be pushed, 96
Inability to begin work, 173
Operations, see
When must be begun, 96
When must be completed, 175
Z
ZANTE —
Oil spring, 1
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