wells into its pipes. The question to be determined here is not whether natural gas, when reduced to possession, is property, but as to the right of well owners to use certain extraordinary means to reduce it to possession. In the examination of the subject, it is proper and necessary to consider whether the appellants have or can have a property interest in natural gas while in the earth, and before it is reduced to possession; whether the appellants will sustain a special injury by the threatened acts of the appellee,-different from the injury to the public; and whether the acts of the appellee invade an equitable right of the appellants.

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 determining the rules by which the rights of landowners 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 interests in this new and peculiar fluid. Natural gas, being confined within 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 feræ naturæ 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 exclude the public from its use and enjoyment plainly distinguishes 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 feræ naturæ, 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, the 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 destruction while in the ground should be exercised by the owners of the land who are inter

ested 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, by the owners of the land, as well as by the state. Natural gas in the ground 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 flowage, may rise in the 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 his own wells, or to do any act with reference to the common reservoir, and the 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 or riparian owner; each having an equal right to take what reasonable quantity he will for his own use. But the limitation is upon the manner of taking. So, in the case of natural gas, the 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 the 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 will no longer exist there.

This view of the law is sustained by the recent decision of the supreme court of the United States in the case of Ohio Oil Co. v. Indiana (No. 84, Oct. term, 1899; decided April 9, 1900) 20 Sup. Ct. 576, Adv. S. U. S. 576, 44 L. Ed. In that opinion the court say: "Although, in virtue of his proprietorship, the owner of the surface may bore wells for the purpose of extracting natural gas and oil, until these substances are actually reduced by him to possession he has no title whatever to them as owner; that is, he has the exclusive right on his own land to seek to acquire them, but they do not become his property until the effort has resulted in dominion and control by actual possession. It is also clear from the Indiana cases cited that, in the absence of regulation by law, every owner of the surface within a gas field may prosecute his efforts, and may reduce to possession all or every part, if possible, of the deposits, without violating the rights of the other surface owners. If the analogy between animals feræ naturæ and mineral deposits of oil and gas, stated by the Pennsylvania 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 the case. This follows because things which are feræ naturæ belong to the 'negative community,'-in other

words, are public things, subject to the absolute control of the state, which, although it allows them to be reduced to possession, may, at its will, not only regulate, but wholly forbid, their future taking. Geer v. Connecticut, 161 U. S. 519, 525, 16 Sup. Ct. 600, 40 L. Ed. 793. But, whilst there is an analogy between animals feræ naturæ 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 game 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 his property; so, also, the owner may not follow the natural gas when it shifts from beneath his own to the property of some one else within the gas field; it being true as to both animals feræ naturæ and gas and oil. therefore, that, whilst the right to appropriate and become the owner exists, proprietorship does not take being until the particular subjects of the right become property by being reduced to actual possession. The identity, however, is for many reasons wanting. In things feræ naturæ all are endowed with the power of seeking to reduce a portion of the public property to the domain of private ownership by reducing them to possession. In the case of natural gas and oil no such 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 own ers, every one may be absolutely prevented from seeking to reduce to possession. No devesting of private property, under such a condition, can be conceived, because the public are the owners, and the enacting by the state of a law as to the public ownership is but the discharge of the governmental trust resting in the state as to property of that character. Geer v. Connecticut, supra. 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 property. 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 by one of his power to seek to convert a part of the common fund to actual possession may result in an undue proportion being attributed to one of the possessors of the right, to the detriment of the others, or by waste by one or more to the annihilation of the rights of the remainder. Hence it is that the legislative power, from the peculiar nature of the right, and the ob

jects upon which it is to be exerted, can be manifested for the purpose of protecting all the collective owners, by securing a just distribution, to arise from the enjoyment by them of their privilege to reduce to possession, and to reach the like end by preventing waste. This necessarily implied legislative authority is borne out by the analogy suggested by things feræ naturæ, which, it is unquestioned, the legislature has the authority to forbid all from taking, in order to prevent them from undue destruction, so that the right of the common owners, the public, to reduce to possession may be ultimately efficaciously enjoyed. Viewed, then, as a statute to protect or to prevent the waste of the common property of the surface owners, the law of the state of Indiana which is here attacked because it is asserted that it devested 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 enjoyment of the others. Indeed, the entire argument upon which the 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 surface owners 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 divisible quality, and the peculiar position of the things to which it relates, there must arise the legislative power to protect the right of property from destruction. To illustrate by another form of statement, the argument 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 devesting them of their property without adequate compensation, 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 devest all the others of their rights without wrongdoing. but the lawmaking power cannot protect all the owners in their enjoyment without violating the constitution of the United States.

* In view of the fact that regulations of natural deposits of oil and gas, and the right of the owner to take them, as an incident of title in fee to the surface of the earth, as said by the supreme court of Indiana, is ultimately but a regulation of real property, they must hence be treated as relating to the preservation and protection of rights of an essentially local character. Considering this

fact, and the peculiar situation of the substances, as well as the character of the rights of the surface owners, we cannot say that the statute amounts to a taking of private property, when it is but a regulation by the state of Indiana of a subject which especially comes within its lawful authority."

The surface proprietors have the right to reduce to possession the gas found beneath. They could not be absolutely deprived of this right without a taking of private property. But there is a co-equal right in all of such owners to take the gas from the common source of supply. The use by one of his power to seek to convert a part of the common fund to actual possession may result in an undue proportion being attributed to one of the possessors of the right, to the detriment of others. From these considerations, the supreme court of the United States held that the legislature derived the power to protect all the collective owners, by securing a joint distribution, to arise from the enjoyment by them of their privilege to reduce to possession. It declares the act of 1893 to be a statute protecting private property, and preventing it from being taken by one of the common owners without regard to the enjoyment of the others. A right of property in all the surface owners in the gas contained in the common reservoir of supply is recognized, as is also the constitutional legislative authority to protect the right of property from destruction. The final conclusion of the court is that one common owner of the gas in the common reservoir cannot devest all the others of their rights, without wrongdoing. The acts of 1891 and 1893 are an express recognition by the legislature of the qualified ownership of the common owners in the gas in the common reservoir, and any act therein forbidden may be, according to the circumstances, the subject of a suit at law or a proceeding in equity by the person injured, as well as the foundation of a public prosecution. Independently, however, of any statute, for the reason already stated, the common owners of the gas in the common reservoir, separately or together, have the right to enjoin any and all acts of another owner which will materially injure, or which will involve the destruction of, the property in the common fund, or supply of gas. Acts 1893, p. 300; State v. Ohio Oil Co., 150 Ind. 21, 49 N. E. 809; Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 171 U. S. 60, 18 Sup. Ct. 895, 43 L. Ed. 72; Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304; Jamieson v. Oil Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652; Townsend v. State, 147 Ind. 624, 47 N. E. 19, 37 L. R. A. 294; Acts 1891, p. 89; Hibberd v. Slack (C. C.) 84 Fed. 579. There is something in the nature of unity in their possession of the gas in the reservoir. 2 Bl. Comm. 182. It is charged in the complaint that the appellee is using in two wells owned by it, and threatens to use in others, pumping ma

chinery and other devices by which the natural flow of the gas is greatly increased, and that the effect of the use of such machinery and devices is to remove the back pressure by which the gas is confined in the Trenton rock, and a vast body of salt water, lying underneath and surrounding the reservoir, is prevented from rushing into the reservoir and destroying it, and putting an entire stop to the flow of natural gas therein. Certainly such acts are destructive of the common interests in the gas and reservoir, and the threatened injury is a proper subject of relief by injunction. It does not appear from the complaint that there has been unreasonable delay on the part of the appellants in seeking relief, and it is clearly shown that they have a special interest in the gas in the ground, and a right to protect it from injury or destruction by the methods and appliances proposed to be used by the appellee in removing it from the common reservoir into its pipes. The facts stated in the complaint constitute a cause of action, and the demurrer to it should have been overruled. Judgment reversed, with instructions to overrule the demurrer, and for further proceedings in accordance with this opinion.

(155 Ind. 178)

ALLEN et ux. v. HOLLINGSHEAD et al. (Supreme Court of Indiana. June 29, 1900.) MORTGAGES - SPECIAL FINDINGS - MODIFICATION-MOTION COMPLAINT -SUFFICIENCY

ASSIGNMENT OF ERROR-SUFFICIENCY VARIANCE-WAIVER-NOTE-JOINT MAKERRELEASE-EFFECT-MOTION FOR JUDGMENT -CONCLUSIONS OF LAW.

1. Motions to modify special findings or to make additional findings are properly overruled, since there is no provision in the Code for such motions.

2. A complaint for the foreclosure of a mortgage, pleading the mortgage and alleging that the legal and record title to the land were in H. when it was executed, and that afterwards a part of it was set off to A. in a partition proceeding by him against H. and wife, and that M. is the wife of A., states facts sufficient to constitute a cause of action against her.

3. Where error was assigned to the sustaining of a motion to strike out a cross complaint, and it was claimed that such motion and the ruling thereon were made a part of the record by an order of the court, but the motion and cross complaint and the rulings of the court were not set out in full in such order, such assignment will not be considered on appeal.

4. Where a complaint alleged that the note sued on read, "We, or either of us, promise to pay," and the one introduced in evidence read, "We promise to pay," but no objection was made to the admission of the note in evidence, advantage cannot be taken for such variance on appeal, since the court will treat the pleadings as amended.

5. Where H. and defendant owned lands jointly, on which H. and wife executed a mortgage to secure a note signed by them and defendant, and the land was afterwards partitioned to H. and defendant, but it was not shown that defendant signed the note as a surety, or that plaintiff had knowledge of any suretyship, the fact that plaintiff released H.'s part of the land from the mortgage, for a valuable consideration, did not relieve the defend

ant from liability to the extent of the real estate so released.

6. Where H. and defendant owned land jointly, and H. and wife executed a mortgage on it to secure a note signed by H. and wife and defendant, and the land was afterwards partitioned between H. and defendant, and the plaintiff released the real estate set off to H. for part of the amount due, and afterwards brought foreclosure proceedings against H. and wife and defendant and wife for the balance, a motion by defendant's wife for judgment in her favor was properly overruled, since the plaintiff was entitled to judgment against all the defendants.

7. Where a motion was made for a judgment on special findings and conclusions of law, and the judgment as requested would not have conformed to the conclusions of law, it was not error to overrule the motion, though the conclusions of law were erroneous, since the proper remedy was by an exception to the conclusions of law.

Appeal from circuit court, Fulton county; M. L. Essick, Special Judge.

Action by Morgan Hollingshead against Charles A. Allen and others. From a judgment in favor of the plaintiff, and an order denying a motion for a new trial, defendants Charles A. Allen and wife appeal. Affirmed.

Holman & Stephenson, for appellants. Harry Bernetha and Enoch Myers, for appellee.

MONKS, J. Appellee brought this action against French Hollingshead and wife and appellants, Charles A. Allen and wife, to foreclose a mortgage executed by French Hollingshead and wife on real estate, and to recover a personal judgment on the promissory note secured by said mortgage. Said cause was tried by the court, a special finding of facts made, and conclusions stated thereon in favor of appellee; and, over a motion for a new trial, personal judgment was rendered against said Charles A. Allen and French Hollingshead, and a decree of foreclosure against all of said defendants in the court below. Allen and wife appeal, and have perfected a term-time appeal.

Appellants made several motions asking the court to modify and change certain of its findings of fact, and to find additional facts, which motions were overruled by the court. The seventh, eighth, ninth, and tenth errors assigned are predicated upon said rulings of the court. Motions to modify or change a special finding, or to make additional findings, are not recognized by our code of procedure, and the same are properly overruled, rejected, or stricken out by the court. Banner Cigar Co. v. Kamm & Schillinger Brewing Co., 145 Ind. 266, 268, 269, 44 N. E. 455; Smith v. Barber, 153 Ind. 322, 332, 53 N. E. 1014; Bunch v. Hart, 138 Ind. 1, 3, 37 N. E. 537; Sharp v. Malia, 124 Ind. 407, 409, 25 N. E. 9; Oil Co. v. Terwilliger, 152 Ind. 364, 365, 53 N. E. 284; Elliott, App. Proc. § 757.

The other errors assigned and not waived call in question each conclusion of law, the action of the court in overruling appellants' demurrers to the first paragraph of the amended complaint and the second amended

complaint, in sustaining appellee's motion to strike out the cross complaint of Charles A. Allen, in overruling the motion of Mary Allen, wife of Charles A. Allen, for judgment in her favor on the findings of fact and the conclusions of law, and in overruling appellants' motion for a new trial.

It is admitted that the first paragraph of the amended complaint and the second amended paragraph of complaint are good as to appellant Charles A. Allen, but it is insisted that neither of said paragraphs states facts sufficient to constitute a cause of action against appellant Mary Allen, his wife. The note sued upon in the first paragraph of the amended complaint was executed by French Hollingshead and Charles A. Allen, and the mortgage to secure the same was executed by said Hollingshead and Carrie L. Hollingshead, his wife. It is alleged in said pararecord title of the real estate described in said graph, among other things, that the legal and mortgage was in said Hollingshead when said mortgage was executed; that afterwards a part of said real estate was in the proceedings for partition in the Fulton circuit court, in which appellant Charles A. Allen was plaintiff and French Hollingshead and wife were defendants, set off to said Charles A. Allen; that said Carrie L. Hollingshead is the wife of said French Hollingshead, and Mary Allen is the wife of said Charles A. Allen, and both are made defendants to answer as to their interest and foreclose their equity of redemption; and that said Mary Allen is made a defendant to answer as to her interest as the wife of said Allen. The allegations of the amended second paragraph of the complaint in regard to appellant Mary Allen are substantially the same as the first paragraph. The record shows that the notes and mortgage sued upon in said paragraphs were properly filed as exhibits, and made a part thereof. Said paragraphs were sufficient, as to each of said appellants, to withstand a demurrer for want of facts.

It is next insisted that the court erred in sustaining appellee's motion to strike out the cross complaint of Charles A. Allen. Said motion to strike out said cross complaint, and the ruling of the court sustaining said motion, are not a part of the record, unless made so by a bill of exceptions or order of court. State v. Halter, 149 Ind. 292, 304, 47 N. E. 665; Dudley v. Pigg, 149 Ind. 363, 369, 48 N. E. 642; Ewbank, Ind. App. Proc. § 26. It is claimed that said motion and the ruling thereon were made a part of the record by order of court. To make the same a part of the record by such order, the motion and cross complaint, and the ruling on the court thereon, must be set out in full in said order. Close v. Railway Co., 150 Ind. 560, 50 N. E. 560; Pennsylvania Co. v. Ebaugh, 152 Ind. 531, 533, 53 N. E. 763; Ewbank, Ind. App. Proc. $$ 27, 36. This was not done in this case, and no question concerning said action of the court is before us for consideration.

It is next insisted by appellants that the

Lnding is not sustained by sufficient evidence, and is contrary to law, because the note sued upon reads, "We, or either of us, promise to pay," etc., and that it also provides, "Interest at the rate of seven per cent. per annum payable annually on note or judgment until paid," while the note read in evidence and found by the court reads, "We promise to pay," etc., and provides for the payment of "interest at seven per cent. per annum after maturity." When the note was offered and read in evidence by appellee, no reason was given why said note was not admissible in evidence. If the reason now urged for excluding said note had been then stated, the copy of the note filed with the complaint could have been amended to conform to the note read in evidence. Sections 365, 394, 399, Burns' Rev. St. 1894 (section 362, 391, 396, Rev. St. 1881; sections 362, 391, 396, Horner's Rev. St. 1897). The rule is that, when there is a variance between the contract described in the complaint and the one produced at the trial, this court will consider and treat the same as amended below. Davis v. Doherty, 69 Ind. 11; Lucas v. Smith, 42 Ind. 103; Perdue v. Aldridge, 19 Ind. 290; Singleton v. O'Blenis, 125 Ind. 151, 25 N. E. 154; Chaney v. State, 118 Ind. 495, 501, 502, 21 N. E. 45; Buchanan v. State, 106 Ind. 251, 255, 6 N. E. 614; Reddick v. Keesling, 129 Ind. 128, 28 N. E. 316; Ashton v. Shepherd, 120 Ind. 69, 22 N. E. 98. It was held in Krewson v. Cloud, 45 Ind. 273, that, when the attention of the court below was not called to a discrepancy between the allegations of the complaint and the proof, objection cannot be made for the first time in this court, but the pleading will be regarded as amended.

It appears from the special findings: That on March 3, 1893, Charles A. Allen and French Hollingshead purchased of one Buckingham two sections of land in Fulton county, Ind., for the sum of $24,320, and that on the same day it was agreed that said Allen and Hollingshead should each own the undivided one-half of said land, and on the same day Buckingham executed a deed therefor to said French Hollingshead. On said March 3, 1893, said Hollingshead and wife executed a mortgage to said Buckingham for $17,000, for the balance of the purchase money on said land. On April 3, 1893, said Hollingshead and wife executed a mortgage to appellee, Morgan Hollingshead, on said real estate, to secure a note of same date for $7,776, payable one year after date with interest at 7 per cent. per annum after maturity. executed by said French Hollingshead and Charles A. Allen. The actual amount of money received on said note was $6,820. That during said month of April, 1893, said French Hollingshead and appellee, his brother, moved upon and took possession of said real estate. On said April 3, 1893, French Hollingshead and his wife executed a deed to said Charles A. Al

len for the undivided one-half of said real estate, which was given by said Allen to said French Hollingshead, to be left for record in Rochester, Ind. That said Hollingshead failed, neglected, and refused to leave said deed for record, and also refused to return the same to said Allen. That, at the request of said French Hollingshead, during the farming season of 1893 said Allen furnished, for use in connection with the improvement and farming of said real estate, $2,061. That appellee and French Hollingshead took and appropriated to their own use all the proceeds resulting from the farming of said land for the years 1893, 1894, and 1895, and denied that said Allen owned any part of said lands. On November 29, 1894, said Allen commenced an action in the court below against said French Hollingshead and wife to quiet his title to an undivided onehalf of said real estate, and for partition of the same. That on January 3, 1895, the mortgage in suit was filed for record. On April 19, 1895, French Hollingshead and wife executed a quitclaim deed to appellee for one of said two sections of real estate, and he immediately took full possession thereof; and on May 6, 1895, said Allen filed in said action to quiet title and for partition a supplemental complaint, making appellee, Morgan Hollingshead, and his wife defendants thereto. At the November term of said court, 1895, judgment was rendered in said court quieting title in said Allen to his undivided interest in said two sections of land, and commissioners were appointed to make partition thereof. It was found in said action that there was due said Allen from French Hollingshead, in excess of all improvements, for money furnished by him and for his share of the rents and profits, $3,366.12. There were set off to said French Hollingshead, as his share of said lands, section 20 and the S. W. 4 of the S. W. 1⁄4 of the other section, and to Charles Allen the other section (being section 17); except the S. W. 4 of the S. W. 4 thereof. On June 4, 1896, French Hollingshead and wife executed to the Northwestern Life Insurance Company a mortgage to secure a loan of $10,000 on said section 20, and on the 17th day of July, 1896, he paid $8,500 thereof to said Buckingham, who released of record said section 20 and the S. W. 4 of the S. W. 4 of section 17 from the lien of his mortgage, and gave credit for said payment on said $17,000. On June 25, 1896, said French Hollingshead and his wife executed to appellee a mortgage on said section 20 for the sum of $4,492.70, and at the same time said French Hollingshead and wife executed a deed for the 40 acres owned by him in said section 17 to appellee, who released said section 20 and said 40 acres from the lien of the mortgage executed to him by French Hollingshead and wife to secure the note for $7,776 signed by said French Hollingshead and Charles A. Allen. That said mortgage