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obtained for the privilege of removing the mineral. In the conduct of an inquiry upon this point regard should be had to all the circumstances of the particular case, and the evidence should be directed to the special instance of the mine or quarry in question. The value of the royalty is to be ascertained by expert testimony. Coleman's Ap., 62 Pa. 252, was altogether exceptional, and the decision is confined to the particular facts under consideration. In that case there had newer been any sales of ore leave at the Cornwall Banks, and there was no proof of the opinion of experts as to the value of such ore leave.

Winton Coal Co. v. Pancoast Coal Co., 170, 437 (1895). Where the amount and value of the coal mined by one co-tenant is undisputed, and the only question is whether the plaintiffs' interest is one-eighth or one-fourth, he may maintain an action of assumpsit in which that question may be determined.

There being no question of account, the case is not within the acts of April 25, 1850, and April 22, 1856.

Mercur v. State Line & Sullivan R. Co., 171, 12 (1895). In a proceeding in equity under the act of April 25, 1850, to ascertain the quantity and value of coal mined by one of several tenants in common, the plaintiff is not bound by the royalty fixed in an agreement by which another of the tenants in common sold his interest to one of the defendants. The quantity and value of the coal mined are questions of fact to be fixed by agreement or determined from the evidence. And a finding of a master thereon, confirmed by the court below, will not be disturbed.

Enterprise O. & G. Co. v. National Transit Co., 172, 421 (1896). A co-tenant who receives more than his just share of the profits is liable to account to the other co-tenants. If he has made an express promise of a liquidated sum, assumpsit will lie against him; otherwise the only remedy is by account for a share of the profits. In no case is his co-tenant entitled to take a share of the product.

Several co-tenants of an oil lease assigned it to an operator for a share of the product, which was delivered by the assignee to the defendant to the credit of the co-tenants. One of the joint owners, who did not join in the assignment, notified the defendant not to deliver any oil to his co-tenants. Held, the parties joining in the assignment were entitled to all the oil in defendant's hands.

Conant v. Smith, 1 Aiken, 67 (1826).

The court will not

Vermont. order partition of real estate in common where the value of

the several parts cannot be ascertained, as in the case of an ore bed. Nor will they, in such case, order a sale thereof or an assignment to one of the parties, though authorized by the statute; but the proper remedy of the party aggrieved is by application to the Court. of Chancery.

West Virginia.

Defendant
Plaintiffs

Williamson v. Jones, 39, 231 (1894). claimed to own the land in question in fee. claimed, and the court so found, that they owned seven-tenths thereof in remainder after the death of their sister.

Defendant being a co-owner in fee to the extent of three-tenths, has "the right to drill wells into the oil strata of the inheritance and take his share of the oil, provided he does not take more than his share.

But he is not entitled to appropriate more than his share of the product. This refers to his share of the net profit after deducting all expenses incident to the working. I should think that a co-owner who has expended so large a sum, entirely at his own risk, but with the knowledge of the other co-owners, in so hazardous an enterprise as developing oil in an unexplored field, ought not to do more than account to them for their proportion of a customary royalty, proper and fair under the circumstances."

Pending the final disposition of the case, special receivers were appointed to take control of seven-tenths of said royalty, the defendant to continue to work the wells, he being solvent and responsible and an energetic, experienced, and skilful operator.

Wisconsin.

A statute

Tipping v. Robbins, 64, 546 (1885). Same case, 71, 570 (1888). A license by one tenant in common to prosecute mining on land does not bind a dissenting co-tenant. providing that no license to mine shall be revocable after valuable discovery unless the right be forfeited by negligence, has no application where the license has been given by one tenant in common without the consent of his co-tenant. A licensee having mined without this consent is accountable to the co-tenants for the value of their share of the mineral taken out, less the expense of digging it out and removing it from the mines.

V. PROPERTY AND RIGHTS IN MINERAL OIL AND NATURAL GAS.

1

Oil and natural gas are minerals in the view of the law; but because of their peculiar attributes they, as the subject of property, differ from other minerals. They have been very properly and adroitly called by Justice Mitchell of Pennsylvania (Westmoreland Nat. Gas Co. v. De Witt, 130 Pa. 235) "minerals fera naturæ," owing to their fugitive and wandering existence. Out of possession there is no property in them. If they once escape from the land of one person into that of another, and become subject to the control of the latter, he may take possession of them and thus become their owner. As minerals, they are a part of the realty until they have been severed from it; and when they are severed from it by artificial means, whether by the owner or a trespasser, they become personal property and belong to the owner of the soil through which they are extracted. If their severance is occasioned by the lawful act of another land-owner on his own land, whereby they come into his possession, they belong to him and not to the owner of the land under which they formerly lay, who failed to reduce them to possession. But they are not capable of distinct ownership in place, owing

1 Act of Cong. Feb. 11, 1897.

to their liability to escape from the place where they may be temporarily confined without, necessarily, any interference on the part of the owner of the soil, or others claiming through him, under whose land they may be found. Like water, they are not the subject of property except in actual occupancy, and a grant of them passes nothing for which ejectment will lie. The fact that oil and gas cannot, while in the ground, like the solid minerals, be the subject of an estate distinct from that in the soil, is the foundation of the distinction between oil and gas rights and general mineral rights, which distinction will be treated of at length under the title of "Oil and Gas Leases," Chap. II., Div. V.

United States.

Brown v. Spilman, 155, 665 (1895). Shiras, J.: "Petroleum oil and gas are substances of peculiar character. Decisions of ordinary cases of mining for coal and other minerals which have a fixed situs, cannot be applied to contracts concerning them without some qualifications. They belong to the owner of the land, and are part of it so long as they are on it, or in it, or subject to his control, but when they escape or go into other land, or come under another's control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas under his neighbor's field so that it comes into his well, it becomes his property."

Indiana.

66

People's Gas Co. v. Tyner, 131, 277 (1891). The owner of land may sink a well thereon and draw therefrom all the natural gas that will naturally flow therefrom, although in so doing he draws gas from beneath his neighbor's land. And he may enlarge the flow of his well to any size and by any lawful means. Water, petroleum oil, and gas are generally classed by themselves as minerals possessing in same degree a kindred nature. . . . What is said of the fugitive character of percolating water and of petroleum oil applies with greater force to natural gas." Westmoreland Gas Co. v. De Witt, 130 Pa. 235, approved.

Columbian O. Co. v. Blake, 13 Ap. 680 (1895). An instrument executed by a married woman conveying all the oil and gas under her separate estate with the right to erect and maintain thereon all buildings and structures, and lay all pipes necessary for the production and transportation of oil and gas taken therefrom, is within Rev. Stats. 1894, secs. 6961, 6962, prohibiting a married woman from incumbering or conveying her real estate, except by deed in which her husband joins. The oil and gas while remaining in the earth are parts of the realty. Even if they were not, the additional rights to the use of the fand would bring this contract within the statute.

Hail v. Reed, 15 B. Monroe, 479 (1854). Oil is a part Kentucky. of the land; when severed it becomes personalty, and remains the property of the owner of the land. Defendant entered upon plaintiff's land, bored a well and took out oil. Held, trover or detinue might be maintained therefor.

The argument that oil, like water, was capable only of a usufructuary property, and was the property of whoever reduced it to his possession, was repudiated.

New York.

Shepherd v. McCalmont Oil Co., 38 Hun, 37 (1885). This was a license to W. and his assigns. It did not convey to him a corporeal hereditament. "We do not understand that there can be any property in rock or mineral oil, or that title thereto can be divested or acquired until it has been taken from the earth."

Hughes v. United Pipe Lines, 119, 423 (1890). Oil in the earth belongs to the owner of the land, and when taken therefrom by a wrong-doer, the land-owner's title to the same still remains perfect, and he can pursue and reclaim it wherever he can find it, as in the hands of the bailee of the trespasser.

Funk v. Haldeman, 53, 229 (1866). Woodward, Pennsylvania. C. J.: "Throughout this opinion I have treated oil as a mineral. Until our scientific knowledge on the subject is increased, this is the light in which the courts will be very likely to regard this valuable production of the earth. But out of this results the difficulty of a strict classification of a right to take it as an incorporeal hereditament. If a mineral, it is a part of the land, and a right to take land or any part of land is not, strictly speaking, an incorporeal hereditament. Nor is the right to firebote, or plowbote, or turves; and yet for the want of a better classification this is treated in the law as an incorporeal hereditament. To the same head is to be referred these

oil rights."

See also concurring opinion of Woodward, P. J., in Keir v. Peterson, 41 Pa. 359 (1861).

Dark v. Johnston, 55, 164 (1867). Oil, like water, is not the subject of property except in actual occupancy, and a grant of it passes nothing for which ejectment will lie. It is a right, not to the oil in the ground, but to the oil that the grantee may find.

Stoughton's Ap., 88, 198 (1878). Oil is a mineral, and a part of the realty; though by severance it may become personalty. Oil is not less part of the realty than timber and coal. It is like coal or any other natural product which in situ forms part of the land. Whenever a conveyance is made of it, whether called a lease or a deed, it is in effect a grant of a part of the corpus of the estate, and not a mere incorporeal right.

A guardian under his ordinary power to lease his ward's real estate has not the power to lease land with the right to bore and dig for oil for a term of years at a royalty. This amounts to an absolute sale of

the oil.1

Westmoreland Nat. Gas Co. v. De Witt, 130, 235 (1890). Mitchell, J.: "The real subject of possession to which complainant was entitled under the lease was the gas and oil contained in, or obtained through, the land. The learned master says that gas is a mineral, and while in

1 This expression must be taken to mean not a sale of the oil in place as a distinct estate, but a sale of so much as is pumped from the ground and converted into personalty. In view of the later

decisions in Pennsylvania, the remarks in
this case on the nature of oil and property
therein cannot be considered authorita-
tive.

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situ is part of the land, and therefore possession of the land is possession of the gas. But this deduction must be made with some qualifications. Gas, it is true, is a mineral; but it is a mineral with peculiar attributes which require the application of precedents arising out of ordinary mineral rights, with much more consideration of the principles involved than of the mere decisions.

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"Water also is a mineral, but the decisions of ordinary cases of mining rights, etc., have never been held as unqualified precedents in regard to flowing, or even to percolating waters. Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not fanciful, as minerals feræ naturæ. In common with animals, and unlike other minerals, they have the power and the tendency to escape without the volition of the owner. Their fugitive and wandering existence within the limits of a particular tract is uncertain,' as was said by Chief Justice Agnew in Brown v. Vandergrift, 80 Pa. 147, 148. They belong to the owner of the land and are a part of it, so long as they are on or in it, and are subject to his control; but when they escape and go into other land, or come under another's control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas. If an adjoining, or even a distant owner, drills his own land, and taps your gas, so that it comes into his well under his control, it is no longer yours, but his.

"And equally so as between lessor and lessee in the present case; the one who controls the gas, has it in his grasp, so to speak, is the one who has possession in the legal as well as in the ordinary sense of the word."

Acheson v. Stevenson, 146, 239 (1891). "Oil is a mineral ferc naturæ, and is part of the land, and belongs to its owner only so long as it is in the land and under his control; and as soon as the oil left the land of the plaintiff and flowed on or into the lot of Mrs. Schmitz, it belonged to her, unless some contract or covenant existed between the plaintiff and her by which this rule of property in oil in situ was inoperative."

Hague v. Wheeler, 157, 324 (1893). Plaintiffs, an individual, and a gas company, were owners of lands in a gas basin, and had opened wells upon their lands from which they obtained gas in quantities sufficient for commercial use. Defendants were owners of adjoining lands in the same basin. At the solicitation of the gas company they opened wells upon their lands, but failed to obtain gas sufficient for commercial use. The object of the gas company in requesting defendants to open the wells was to purchase the land, and the wells were opened in pursuance of a negotiation entered into for that purpose, which afterward failed. Defendants did not plug the wells, but permitted the gas to escape and go to waste. Plaintiffs entered upon defendants' land, and shut in the gas and closed the well. Defendants then threatened to remove the cap and permit the gas to escape. An injunction to restrain them from so doing was refused, it being held that the suggestion of malice or negligence was negatived by the proof that defendants had drilled the well at the request of the gas company.

Williams, J.: "But it is said that the oil and gas are unlike the solid minerals, since they may move through the interstitial spaces or crevices.

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