A A : I 4 J 5 i> 8 ITY 3 ■«". • X UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY 1» * */. •/«. . *?v ,..yw A ,.•' -^ry . ... 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 : " Aeneath 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 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.-*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 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. 24erator 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. 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. 2erformance 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 reecifically 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 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, anen 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 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 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 tetroit 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 upility 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 . 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«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 School of law library UI^IVERSITY of CALIFORNIA liilillililli'i'i! 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