UC-NRLF 
 
LIBRARY 
 
 OF THE 
 
 UNIVERSITY OF CALIFORNIA. 
 
 Clans 
 
A TREATISE 
 
 ON 
 
 Petroleum and Natural and 
 Manufactured Gases 
 
 By DANIEL D. DONAHUE 
 < I 
 
 * 
 
 UNIVERSITY 
 
 BLOOMINGTON, ILLINOIS 
 Pantograph . Printing and Stationery Co. 
 
 1902 
 
COPYEIGHT, 1902. 
 
 BY DANIEL D. DONAHUE. 
 
 GENERAL 
 
PREFACE. 
 
 This work was not originally prepared with the 
 idea of having it published, but was intended for my own 
 private use so that the interests of my clients as well 
 as my own might be better preserved. In view of the 
 importance of this branch of the law it was then thought 
 that the lawyers might be benefited by its publication 
 and that their labors in finding out what the law is 
 might be at least lessened. 
 
 DANIEL D. DONAHUE, 
 
 BLOOMINGTON, ILLINOIS. 
 February 19, A.D. 1902. 
 
 101615 
 
TABLE OF CONTENTS. 
 
 CHAPTER. 
 
 I GENERAL PRINCIPLES. 
 II PETROLEUM AND GAS AS PERSONAL PROPERTY. 
 
 Ill PARTNERSHIP IN THE PRODUCTION OF PETROLEUM AND 
 GAS. 
 
 IV LIFE TENANTS AND TENANTS IN DOWER. 
 V TENANTS IN COMMON. 
 
 VI LIMITATION LAWS AND ADVERSE POSSESSION. 
 VII FIXTURES. 
 VIII TAXATION. 
 
 IX THE USE OF STREETS AND HIGHWAYS. 
 X LIENS. 
 
 XI RIGHT TO ACQUIRE LAND FOR PIPE LINES, POWER OF 
 EMINENT DOMAIN. 
 
 XII EXECUTION OF OIL AND GAS LEASES. 
 XIII OIL AND GAS LEASES. 
 XIV RENTS AND ROYALTIES. 
 XV RESERVATIONS AND LOCATION OF OIL CLAIMS. 
 XVI RATES AND SUPPLY OF GAS. 
 XVII DAMAGES CAUSED BY GAS. 
 
 XVIII NEGLIGENCE AFFECTING THE RIGHT TO RECOVER FOR 
 INJURIES. 
 
 XIX- INJURIES CAUSED BY PETROLEUM AND ITS PRODUCTS. 
 XX TRANSPORTATION OF OIL. 
 XXI NUISANCES . 
 XXII USE OF OIL AND GAS AFFECTING INSURANCE. 
 

 Petroleum and Natural and Manufac- 
 tured Gases. 
 
 GENERAL PRINCIPLES. 
 
 CHAPTER I. 
 
 SECTION 1. DEFINITION. The word "petroleum" 
 comes from the Latin words petra rock, and oleum oil, 
 literally meaning^jrock^^ I liquid, 
 
 - i - A n posed 
 
 revices 
 . was a 
 
 ERRATUM. cludes 
 
 stance 
 bright 
 ieties, 
 
 n is dc- 
 
 Le ghter 
 
 ellow 
 sessed." ondi- 
 
 com- 
 able. 
 
 ^o^iuoling 
 
 ^^^ uccumes black. Asphaltum is defined as a min- 
 eral pitch or compact native bitumen. It is brittle, of a 
 black or brown color and it melts and burns and leaves 
 no residue, and is used largely for paving and for cover, 
 ing the roofs of houses. 
 
 SEC. 2. WHERE FOUND. Petroleum was known to 
 the Greeks, Romans, and Persians at a very early time, 
 and is found in great quantities near the shores of the 
 Caspian Sea, in Russia, but it was not developed in that 
 f region for commercial purposes until a very late day. It 
 is found in abundance in Western Pennsylvania and New 
 
TABLE OF CONTENTS. 
 
 CHAPTER. 
 
 I GENERAL PRINCIPLES. 
 II PETROLEUM AND GAS AS PERSONAL PROPERTY. 
 
 Ill PARTNERSHIP IN THE PRODUCTION OF PETROLEUM AND 
 GAS. 
 
 TV LIFE TENANTS AND TENANTS IN DOWER. 
 
 i 
 
 ' 
 
 XV RESERVATIONS AND LOCATION OF OIL CLAIMS. 
 XVI RATES AND SUPPLY OF GAS. 
 XVII DAMAGES CAUSED BY GAS. 
 
 XVIII NEGLIGENCE AFFECTING THE RIGHT TO RECOVER FOR 
 INJURIES. 
 
 XIX INJURIES CAUSED BY PETROLEUM AND ITS PRODUCTS. 
 XX TRANSPORTATION OF OIL. 
 XXI NUISANCE s . 
 XXII USE OF OIL AND GAS AFFECTING INSURANCE. 
 
Petroleum and Natural and Manufac- 
 tured Gases. 
 
 GENERAL PRINCIPLES. 
 
 CHAPTER I. 
 
 SECTION 1. DEFINITION. The word "petroleum" 
 comes from the Latin words petra rock, and oleum oil, 
 literally meaning- rock-oil, and is defined as a liquid, 
 inflammable, bituminous substance, and is composed 
 largely of hydrogen and carbon and exudes from crevices 
 in rocks, or on the surface of the water. Bitumen was a 
 generic name used by the Romans and now includes 
 asphaltum, naphtha and petroleum. 
 
 Bitumen is defined as a mineral pitch, a substance 
 having a pitch-like odor and burns readily, with a bright 
 flame, without any residue. There are many varieties, 
 from liquid naphtha to solid asphaltum. Naphtha is de- 
 fined as a volatile, limpid, bituminous liquid, lighter 
 than water and of peculiar odor and of a light yellow 
 color, occurring in nature in a more or less pure condi- 
 tion near coal deposits and other regions. It is a com- 
 pound of carbon and hydrogen and very inflammable. 
 By long keeping, it hardens into a substance resembling 
 resin and becomes black. Asphaltum is defined as a min- 
 eral pitch or compact native bitumen. It is brittle, of a 
 black or brown color and it melts and burns and leaves 
 no residue, and is used largely for paving and for cover, 
 ing the roofs of houses. 
 
 SEC. 2. WHERE FOUND. Petroleum was known to 
 the Greeks, Romans, and Persians at a very early time, 
 and is found in great quantities near the shores of the 
 Caspian Sea, in Russia, but it was not developed in that 
 region for commercial purposes until a very late day. It 
 is found in abundance in Western Pennsylvania and New 
 
6 Natural Gas Defined. 
 
 York, and was known to exist there from the earliest 
 settlement of the country, but it was not utilized for 
 commercial purposes until 1859, when a well was bored 
 at Titusville, Pennsylvania, on Oil Creek, a branch of 
 the Allegheny River; and since that time, oil has been 
 produced in West Virginia, Ohio, Indiana and Kansas, 
 and to some extent in Kentucky, Tennessee, Illinois and 
 Colorado; and it also covers a large area in Southern 
 California. The latest oil fields are, found in the State 
 of Texas, and so far the wells, in that region, promise to 
 be the greatest producers in the world; and also since the 
 discovery in Texas, oil has been found in Indian Terri- 
 tory and Oklahoma. 
 
 SEC. 3. Natural Gas is defined as a gaseous member 
 of the paraffin series, petroleum being the liquid member. 
 It is produced by the decomposition of animal and vege- 
 table matter and is stored under a stratum of rock, which, 
 when penetrated, sets it free. It is practically identical 
 with marsh gas, known to miners as fire damp, or marsh 
 gas, which consists chiefly of light, carbureted hydrogen 
 and is combustible and is formed naturally in the earth, 
 and consists of such elements as marsh gas, hydrogen 
 ethylene, nitrogen and carbonic acid and carbonic oxid 
 It burns brightly and leaves no residue. 
 
 SEC. 4. WHERE FOUND. Natural gas has been known 
 for many centuries and was discovered in the old world 
 at a very early day, but it is found in large quantities in 
 the United States. It was first used for commercial and 
 economical purposes at Fredonia, New York, in 1821, but 
 not extensively. The extensive use of natural gas began 
 in 1872 at Fairview, Pennsylvania, and it was first used 
 for smelting purposes at a place called Edna Borough, 
 near Pittsburg, in 1875, and in 1886 it was brought up 
 through pipes to Pittsburg from a place called Murray - 
 ville, nineteen miles from Pittsburg; and also it was dis- 
 covered in large quantities in West Virginia, Ohio and 
 Indiana and is now used very extensively as fuel and 
 illuminating and for manufacturing and domestic pur- 
 
Artificial Gas Defined. 7 
 
 poses. It is transported through pipe lines to the place 
 of consumption and is cheap and clean as a fuel. Wher- 
 ever petroleum is found natural gas is also found. 
 
 SEC. 5. Artificial gas is, in the popular language, a 
 compound of various gases, used for illuminating and 
 heating purposes; a mixture of carbureted hydrogen, 
 olefiant gas, or bi-carbureted hydrogen, which gives a 
 brilliant light when burned, and is the common gas used 
 for illuminating purposes. The common kind is coal 
 gas,- obtained from bituminous coal by carbonization in 
 retorts at a high temperature. A carbonated hydrogen 
 gas, called water gas, resulting from the passing of steam 
 through a mass of incandescent carbon admixed by 
 hydro-carbon. Oil gas is an illuminating gas obtained 
 by distilling of petroleum at a high temperature or other 
 liquid hydro-carbons. 
 
 SEC. 6. THEORETICAL. It must be borne in mind 
 that the facts on which the rights to oil and gas beneath 
 the surface are adjusted are based largely on theory, or 
 on the assumption that oil and gas exist in the cavities 
 of the earth in a certain state, and on these assumptions 
 the legal principles announced by the courts are founded. 
 It is a generally accepted theory that natural gas and 
 petroleum are confined, within certain productive regions, 
 in large reservoirs or series of reservoirs, and that the 
 series of reservoirs are connected together by channels 
 and that the petroleum and gas flow freely through the 
 channels from one reservoir to another, so the gas and 
 petroleum that may find their way to the surface through 
 wells on certain lands may come from the lands of other 
 owners. It is now generally accepted that the oil and 
 gas are found beneath a layer or series of layers of rock 
 generally called "cap rock," and that when this cap 
 rock is penetrated with a drill the gas finds its way to 
 the surface through the opening thus made, and this is 
 also true of the petroleum found in the coast region of 
 Texas. At the present time there exist in that region 
 about eighty-five petroleum wells, and all of which pro- 
 
8 Petroleum as Land. 
 
 duce oil in large quantities from the natural rock pres- 
 sure; but in other regions the natural pressure is not 
 sufficient to cause the petroleum to flow to the surface. 
 So the theory that the petroleum and gas flow freely 
 beneath the surface of the earth has figured largely in 
 adjusting the rights of the owner of land in the produc- 
 tion of these products and the right of such land owner 
 with reference to the rights of other land owners within 
 the particular oil and gas region. 
 
 SEC. 7. OIL AS LAND. The legal definition of oil is: 
 "Oil is a mineral, and being a mineral is part of the real- 
 ty," so held on a question as to what interest was con- 
 veyed to a lessee, his heirs and assigns. * Petroleum oil 
 in its place, in the land, is part of the land itself, just as 
 are coal, timber, and iron ore; so held where a tenant 
 for life was committing acts of waste by taking oil from 
 the lands;* and also so held with respect to the dis- 
 position of oil by lease of an infant's land; 3 and also of 
 an incompetent person's land; 4 and where a deed reserves 
 "all mines, minerals and metals in and under the land," 
 the court held it to be a mineral and part of the land and 
 within the reservation in the deed; 5 and where a grantor 
 reserves ten acres out of a larger tract conveyed "upon 
 which no wells shall be drilled without the written con- 
 sent of the party of the first part," the oil passed to the 
 grantee under the deed as part and parcel of the land 
 and was his while in or on it and subject to his control; 6 
 and on a question of waste, between a lessee and a sub- 
 sequent lessee who was taking oil from the land, the oil 
 was treated as part and parcel of the realty while in 
 place; 7 and, when the owner of oil lands placed a line of 
 
 1. Funk vs. Haldeman, 53 Pa., 229, 249. 
 
 2. Williamson vs. Jones, 43 W. Va., 562; 27 S. E., 411; 38 L. R. 
 
 A., 694. 
 
 3. Stoughton's Appeal, 88 Pa., 198. 
 
 4. South Pennsylvania Oil Co. vs. Mclntyre, 44 W. Va., 296. 
 
 5. Murray vs. Allard, 100 Tenn., 100; 43 S. W., 353; 39 L. R. 
 
 A., 249. 
 
 6. Brown vs. Spelman, 155 U. S., 665. 
 
 7. Bettman vs. Harness, 42 W. Va., 443; 26 S. E., 471; 36 L. R. 
 
 A., 566. 
 
Gas as Land. 9 
 
 oil wells along- his line close to the adjoining- lands of 
 another, who sought to restrain the former from operat- 
 ing his wells because such operation would drain his 
 lands, the petroleum was classed as a mineral and part 
 of the land, while in the ground, and forms part of the 
 land while the petroleum is on the particular tract, but 
 when it flows away to another tract it then forms a part" 
 of the latter tract. 1 It may be stated as a general propo- 
 sition that oil is a mineral and while in place in the earth 
 it is part of the realty. 3 
 
 SEC. 8. GAS AS LAND. Natural gas is a mineral, 
 and while in place is part of the realty; so held in a case 
 where the owner of the surface claimed title to the gas 
 by adverse possession and where the gas rights had been 
 leased to a third person; 3 and where a life tenant opens 
 new wells it is waste, because gas is a mineral and a part 
 of the realty; 4 and in a reservation, in a deed of "all the 
 mines, minerals and metals in and under the land, "nat- 
 ural gas comes within the terms of the reservation as be- 
 ing a mineral forming part of the land. 5 Natural gas is 
 a fluid mineral substance, subterranean in its origin and 
 location, possessing in a restricted degree the properties 
 of underground waters and resembling waters in some of 
 its habits; so held in an action by one landowner to re- 
 strain another from taking gas from a well by means of 
 a pump. 6 And natural gas is part of the realty under a 
 
 1. Kelly vs. Ohio Oil Co., 57 Ohio St., 317; 39 L. R. A., 765. 
 
 2. Kier vs. Peterson, 41 Pa., 361; Gill vs. Weston, 110 Pa., 313; 
 
 Dunham vs. Kirkpatrick, 101 Pa., 43; 47 Am. Rep., 696; 
 Blakley vs. Marshall, 174 Pa., 425; Wilson vs. Hughes, 43 
 W. Va., 826; 39 L. R. A., 292; Haid vs. Reed, 15 B. Hon., 
 479; Chicago & A. Oil and Min. Co. vs. U. S. Petroleum Co., 
 57 Pa., 83; Moore vs. Jennings, 47 W. Va., 181. 
 
 3. Westmoreland & C. Natural Gas Co. vs. DeWitt, 130 Pa., 235; 
 
 5 L. R. A., 731. 
 
 4. Marshall vs. Mellon, 179 Pa., 397. 
 
 5. Murrey vs. Allard, 100 Tenn., 100; 39 L. R. A., 249; 43 S. 
 
 W., 353. 
 
 6. Manufacturers Gas and Oil Co. vs. Indiana Natural Gas and 
 
 Oil Co., Ind., ; 57 N. E., 912; 50 L. R. A., 768. 
 
10 Nature of the Estate. 
 
 reservation of ten acres out of a larger tract "upon which 
 no wells shall be drilled without the written consent of 
 the party of the first;" 1 and under the tariff laws of 1890 
 mineral gas which is imported for fuel and illuminating 
 purposes, comes under the classification of crude bitumen 
 or crude mineral,* and where gas is unlawfully extracted 
 from the land, the gas so taken is a part of the land and 
 is an act of irreparable injury.* 
 
 SEC. 9. NATURE OF THE ESTATE. The property 
 rights in and to oil and gas differ essentially from the 
 owner's rights in lands and chattels: Thus, the owners 
 of mineral rights in oil and gas cannot have partition, 
 because they are not capable of distinct ownership in 
 place, for they may be in one man's land today, forming 
 a part of it, and tomorrow they may form part of the 
 land of another tract, without any act being done by 
 either landowner; 4 so where the owner of a gas well 
 permits it to escape and go to waste, he can be enjoin'ed 
 from so doing under a statute prohibiting waste, because 
 the owner of the well has no estate or title to the gas 
 until it is actually reduced into possession by being 
 placed in pipes or tanks; 5 and where the owners of nat- 
 ural gas take it from the common reservoir, one may 
 enjoin the other from extracting the gas with a gas 
 pump under a statute prohibiting the commission of 
 waste, because he has no title to the oil and gas other 
 than the mere right to drill on his own land to take 
 them into his possession, and as long as he has no title 
 or estate, the legislature has a right to prescribe his 
 mode of taking them. 6 Where, however, there is no stat- 
 
 1. Brown vs. Spelman, 155 U. S., 665. 
 
 2. United States vs. Buffalo Natural Gas Fuel Co., 172 U. S., 339; 
 
 45U. S. App., 345; 7<s Fed. R., 110. 
 
 3. Moore vs. Jennings, 47 W. Va., 181. 
 
 4. Hall vs. Vernon, 47W.Va.,297; 34 S. E.,764; 49 L. E. A., 464. 
 
 5. State of Indiana vs. Ohio Oil Co., 150 Ind., 21; 50 N. E., 1128; 
 
 47 L. R. A., 627; Ohio Oil Co. vs. Indiana, 177 U. S., 190. 
 
 6. Manufacturers Gas and Oil Co. vs. Indiana Natural Gas and 
 
 Oil Co., Ind., ; 57 N. E., 912; 50 L. R. A., 768; Ohio 
 Oil Co. vs. Indiana, 177 U. S., 190. 
 
Nature of the Estate. 11 
 
 ute prohibiting the waste of gas or the taking of it from 
 the common reservoir, an injunction will not lie to pre- 
 vent these acts. 1 So under a lease giving the lessor one- 
 eighth of the product and the lessee seven-eighths, the 
 ownership was held not to change while the oil remained 
 in the rocks; 2 and where a lease gives the lessee a right 
 which is exclusive to produce all the oil and gas on cer-~ 
 tain lands for a period of years no estate vests in the 
 lessee and the extent of his claim is a mere right to drill 
 and produce oil and gas which may be found on the land. 3 
 
 SEC. 10. COMPARED TO ANIMALS FERAE NATURAE. 
 What animals ferae naturae are to the animal world, so 
 are water, oil and gas to the mineral world; and water, 
 oil and gas may be classed by themselves as minerals 
 ferae naturae, if the analogy be not too fanciful. In com- 
 mon with animals and unlike other minerals they have a 
 power and tendency to escape without the volition of the 
 owner. 4 They form a part of the land while they are in 
 or on the land in situ, but their fugitive and wandering 
 existence within the limits of any particular tract is un- 
 certain, 5 and, when they escape and go in toother land or 
 come within another's control, the title of the former is 
 gone and they no longer form part of his realty. * Oil 
 and gas are minerals of a peculiar nature and the rules 
 and principles of law, governing other minerals, do not 
 apply generally to mineral oil and natural gas, and they 
 cannot be dealt with on the principles applicable to un- 
 derground waters, as the distinctions are so marked that 
 the principles the courts apply to waters are not adapted 
 
 1. Wheeler vs. Hague, 157 Pa., 324; 22 L. E. A., 141; Jones vs. 
 
 Forest Oil Co., 194 Pa., 379; 48 L. E. A., 748; 44 Atl.,1074. 
 
 2. Carter vs. County of Tyler, 45 W. Va., 806; 43 L. E. A., 725; 
 
 32S.E.,216. 
 
 3. Eaton vs. Allegheny Gas Co., 122 N. Y., 122; 25 N. E., 259. 
 
 4. Westmoreland and Cambria Natural Gas Co. vs. DeWitt, 130 
 
 Pa., 235; 25 L. E. A., 731. 
 
 5. Brown vs. Vandergrift, 80 Pa., 147, 148. 
 
 6. Westmoreland and Cambria Natural Gas Co. vs. DeWitt, 130 
 
 Pa., 235; 5 L. E. A., 731; Peoples Gas Co. vs. Tyner, 131 
 Ind., 277; 31 N. E. 60: 16 L. E. A., 443; Townsend vs. 
 State, 147 Ind., 624; 47 N. E., 21; 37 L. E. A., 294. 
 
12 No Absolute Property Right In Them. 
 
 to the adjustment of rights growing out of petroleum and 
 natural gas. 1 
 
 SEC. 11. No ABSOLUTE PROPERTY RIGHTS IN OIL 
 AND GAS. It is true that petroleum oil and natural gas 
 are included in the comprehensive idea which the law 
 attaches to the word land, and are parts of the soil in 
 which they are found, but a grant of oil and gas is not a 
 grant of the soil, 2 and such a grant passes nothing, for 
 a common law action in ejectment will lie. 3 Petroleum 
 and gas are supposed to exist in a reservoir or series of 
 reservoirs, connected together by a network of under- 
 ground channels, and from their nature, they flow freely 
 from one place to another within the gas and oil area, so 
 the owners of oil and gas rights have no absolute prop- 
 erty in the oil and gas as they exist in their natural state 
 beneath the surface of the earth. 4 
 
 SEC. 12. DISTINCTION AS TO TITLE BETWEEN PETRO- 
 LEUM AND NATURAL GAS, AND ANIMALS FERAE NATURAE. 
 The courts have likened oil and natural gas to animals 
 ferae naturae, such as fish, game and other common prop- 
 erty; but the comparison has reference more to the ten- 
 dency of oil and gas to wander away from one tract of 
 land of which it formed a part, and become the part of 
 another tract of land, than to the title and estate in petro- 
 leum and natural gas. In England title to the game was 
 vested in the king, and he could grant any of his subjects 
 a right to take such game; 5 and, on the settlement of this 
 country, such right was vested in the colonial govern- 
 
 1. Manufacturers Gas and Oil Co. vs. Indiana Nat. Gas and Oil 
 
 Co., Ind., ; 57 N. E., 912; 50 L. R. A., 768. 
 
 2. Peoples Gas Co. vs. Tyner, 31 N. E., 60; 131 Ind., 277; 16 L. 
 
 E. A., 443; Gould on Waters, (2nd ed., sec. 293). 
 
 3. Dark vs. Johnston, 55 Pa., 164; 93 Am. Dec., 732; Hall vs. 
 
 Vernon, 47 W. Va., 181; 34 S. E., 764; 49 L. R. A., 464; 
 Thompon's App., 101 Pa., 225. 
 
 4. State of Indiana vs. Ohio Oil Co., 150 Ind., 21; 47 L. R. A., 
 
 627; 49 N. E., 809; Ohio Oil Co. vs. Indiana, 177U. S., 627; 
 Manufacturers Gas and Oil Co. vs. Indiana Natural Gas and 
 Oil Co., Ind., ; 57 N. E., 912; 50 L. R. A., 768. 
 
 5. 2 Black Com., 240. 
 
State Cannot Prohibit Production. 13 
 
 ments and passed from the colonial governments to the 
 various states. 1 Independent of any laws, the common 
 ownership is in the body of the people; but the state, in 
 the exercise of its governmental powers, can exercise its 
 right to control or prohibit the taking of game, and the 
 right and title to game thereafter is in the state, in trust,_ 
 for the benefit of the people; 3 and if a state denies a per- 
 son the right to take game, such person loses nothing, 
 because he had no title, as the title was in the state. 8 
 The state can give a person the exclusive right to take 
 the game and no person can complain, 4 and when game 
 is permitted to be taken, the actual corporeal possession 
 alone gives title. 5 The state can prohibit the shipment 
 of game from the state after taken and no right is vio- 
 lated. 6 So it is with oil and gas, no title vests until they 
 are actually reduced into possession by a private owner; 7 
 but the title, to the oil and gas, is not in the people gen- 
 erally, or in the state in trust for the people, but it is in 
 the owners of land or owners of oil and gas leases or 
 reservations within the particular oil and gas region in 
 common, each having a co-equal right to reduce the com- 
 mon property to possession, and thus make what was the 
 common property of all his individual property. 8 
 
 1. Heggerty vs. St. Louis Ice Mfg. and S. Co., 143 Mo., 238; 40 L. 
 
 R. A., 151. 
 
 2. Heggerty vs. St. Louis Mfg. and Storage Co., supra: Magner 
 
 vs. People, 97 111., 320; Ex parte Maier, 103 Cal., 476; 
 James vs. Wood, 82 Me., 173; 8 L. R. A., 448; State vs. 
 Rodman, 58 Minn., 393. 
 
 3. Ex parte Maier, 103 Cal.. 476; State vs. Rodman, 58 Minn., 
 
 393; Magner vs. People, 97 111., 320. 
 
 4. Chalker vs. Dickinson, 1 Conn., 382; Organ vs. State, 56 
 
 Ark., 267. 
 
 5. James vs. Wood, 82 Me., 173; 8 L. R. A., 448 and note. 
 
 6. State vs. Northern Pacific Express Co., 48 Minn., 403; Organ 
 
 vs. State, 56 Ark., 267. 
 
 7. Ohio Oil Co. vs. State of Indiana, 177 U. S., 190; Indiana vs. 
 
 Ohio Oil Co., 150 Ind., 21; 47 L. R. A., 627; Manufacturers 
 Oil and Gas Co. vs. Indiana Natural Gas and Oil Co.. 
 Ind., ; 57 N. E., 912; 50 L. R. A., 768. 
 
 8. Ohio Oil Co. vs. State of Indiana, 177 U. S., 190; Indiana vs. 
 
 Ohio Oil Co., 150 Ind., 21; Manufacturers Oil and Gas Co. 
 vs. Indiana Natural Gas and Oil Co., Ind., ; 57N. E., 
 912; 50 L. R. A., 768; Townsend vs. State, 147 Ind., 624; 
 47 N. E.,21; 37 L. R. A., 294. 
 
14 Waste of Petroleum and Natural Gas. 
 
 SEC. 13. RIGHT OF THE STATE TO REGULATE THE 
 USE TO BE MADE OP NATURAL GAS. A statute provid- 
 ing- that, "the use of natural gas for illuminating pur- 
 poses, in what are known as flambeau lights, is a wasteful 
 and extravagant use thereof, and is dangerous to the 
 public good, and it shall therefore be unlawful for any 
 company, corporation or person, for hire, pay, or other- 
 wise, to use natural gas for illuminating purposes in what 
 are known as flambeau lights," anywhere in the state, 
 under a penalty, upon conviction, of a fine not to exceed 
 twety-five dollars for the first offense, and for the second 
 offense any sum not to exceed two hundred dollars, is 
 valid; 1 and a person who violates the statute is liable 
 to the fine, upon conviction, as is provided by statute. 8 
 
 SEC. 14. WASTE OF OIL AND GAS PROHIBITED BY 
 STATUTE VALIDITY. A law passed by the legislature 
 providing "that it shall be unlawful for any person, firm, 
 or corporation having possession or control of any nat- 
 ural gas or oil well, whether as a contractor, owner, 
 lessee, agent, or manager, to allow or permit the flow of 
 gas or oil from any such well to escape into the open air 
 without being confined within such well, or proper pipes? 
 or other safe receptacle for a longer period than two (2) 
 days next after gas and oil have been struck in such 
 well, and thereafter all such gas or oil shall be safely 
 and securely confined in such well, pipes, or other safe 
 and proper receptacles," is a valid, constitutional law; 8 
 and a person who will violate the statute is liable for 
 the penalties prescribed therein. 4 
 
 SEC. 15. STATUTE PREVENTING WASTE No DEPRI- 
 VATION OF LIBERTY OR HAPPINESS. The statute does 
 
 1. Indiana Revised Statute, 1894, sec. 2316; Acts 1891, p. 55, sec. 
 
 land sec. 2318, Revised Statutes, 1894; Acts 1891, p. 55, 
 sec. 3. 
 
 2. Townsend vs. State, 147 Ind., 624; 47 N. E., 21; 37 L. R. 
 
 A., 2.)4. 
 
 3. Burns' Revised Statutes Indiana, 1894, sees. 2316, 2318, 7510, 7512, 
 
 Acts of 1891, p. 55; Acts 1893, p. 300. 
 
 4. State of Indiana vs. Ohio Oil Co., 150 Ind., 21; 49 N. E., 809; 
 
 47 L. R. A., 627; Ohio Oil Co. vs. Indiana, 177 U. S., 190. 
 
Law Prohibiting Waste Valid. 15 
 
 not deprive the owner of a gas or oil well, of liberty or 
 the pursuit of happiness by prohibiting waste, or if it 
 does, such owner's happiness must not be so asserted as 
 to invade the rights and happiness of others and make 
 them unhappy by wasting gas or oil which oil owners 
 have a right to take from the common reservoir; and^if 
 it makes one happy by committing waste and others 
 unhappy by its commission; then the commission of such 
 waste is a positive wrong, and such a right is not 
 inalienable, and the state is charged with the duty of 
 protecting the people from such an invasion of their 
 rights. 1 
 
 SEC. 16. DUE PROCESS OP LAW is NOT DENIED BY 
 A STATUTE PROHIBITING WASTE. Nor does a statute 
 prohibiting waste deprive a person of his property with- 
 out due process of law, because the owner of land which 
 produces oil or gas has no property rights in them, while 
 they occupy the subterranean cavities of the earth; since 
 title does not vest until they are actually reduced to pos- 
 session by being placed in tanks and pipes, and the only 
 right which is vested in such a landowner is the mere 
 right to drill upon the land and reduce the oil and gas to 
 possession, so a person is deprived of no title or estate 
 by preventing such person from using gas in flambeau 
 lights or in a wasteful manner, because no title or estate 
 vests until actually reduced into possession; and before 
 such title vests, the state has a right to say what use 
 shall be made of it, when such estate or title does vest, 
 providing such restrictions are reasonable. 2 And, when 
 an oil and gas well produces both and the oil cannot be 
 taken from the well without letting the gas float away 
 and go to waste, the owner of the well must cease to 
 operate it, if the oil cannot be taken therefrom without 
 wasting the gas, since no title or estate was in the owner 
 of such well until they are actually reduced to posses- 
 sion, and the state has a right to regulate the mode of 
 
 1. Townsend vs. State, 147 Ind., 624; 47 N. E., 21; 37 L. R. 
 
 A., 294. 
 
 2. Townsend vs. State, supra. 
 
16 Law Prohibiting Waste Impairs no Right. 
 
 taking- or prohibit the taking. l The same rule applies 
 to the owner of a gas well who takes gas therefrom by 
 means of a gas pump, thus increasing the natural flow 
 by artificial means and lessening the pressure on the com- 
 mon reservoir, or series of reservoirs, to the detriment 
 of those who have a co-equal right to take gas there- 
 from, and where such artificial means is used to increase 
 the flow, injunction will lie to prevent it, and this is so, 
 independent of any statute. 2 
 
 SEC. 17. STATUTE PROHIBITING WASTE DOES NOT 
 IMPAIR ANY RIGHT WHICH A FREE GOVERNMENT is 
 BOUND TO PROTECT. ACTS DECLARED BY THE LEGIS- 
 LATURE TO BE WASTE CONCLUSIVE ON THE COURTS. 
 Statutes preventing the waste of oil or gas do not im- 
 pair any legal right which a free government is bound 
 to protect, nor is such a statute unconstitutional because 
 it might be wrong or unjust; 3 and when statutes like 
 these are enacted, whether they encroach upon the nat- 
 ural rights of a people of the state, it is a question to be 
 determined by the legislature and not by the courts. 4 
 Each state legislature possesses all the powers not dele- 
 gated to the United States, or prohibited by the consti- 
 tution of the United States, and those expressly or by 
 implication withheld by the state constitution, therefore 
 the courts have nothing to do with the justice, the pro- 
 priety, or the policy of such laws, as long as they do not 
 violate any of the provisions of the constitution of the 
 United States, or laws or treaties made thereunder, or 
 
 1. State of Indiana vs. Ohio Oil Co., 150 Ind., 21; Ohio Oil Co. 
 
 vs. State of Indiana, 177 U. S., 190. 
 
 2. Manufacturers Gas and Oil Co. vs. Indiana Gas and Oil Co., 
 
 Ind., ; 57 N. E., 912; 50 L. R. A., 768. 
 
 3. Townsend vs. State, 147 Ind., 624; Welling vs. Merrill, 52 
 
 Ind., 350; Logansport vs. Seybold, 59 Ind., 225; State vs. 
 Gerhardt, 145 Ind., 439; 33 L. R. A., 313. 
 
 4. Townsend vs. State, 147 Ind. , 624; See also, Heddrick vs. State, 
 
 101 Ind., 564; 51 Am. R., 768; Eastman vs. State, 109 Ind., 
 278; 58 Am. R., 400; Phoenix Insurance Co. vs. Burdett, 
 112 Ind., 204; Jamieson vs. Indiana Natural Gas & Oil Co., 
 128 Ind., 555; 12 L. R. A., 652. 
 
State May Enjoin Waste. 17 
 
 the constitution of the state; and, though a person's 
 natural rights may be involved, such an invasion fur- 
 nishes no ground for declaring such statutes void, and the 
 people and the courts must abide by the laws enacted by 
 their representatives. 1 So when the legislature inquired 
 into the facts as to what amounted to waste of gas and 
 oil, it is conclusive on the courts, since the legislature 
 have a right to make such an investigation and then en- 
 act a law declaring what constitutes waste, and it is no 
 invasion of the judicial prerogatives of the courts. 2 
 
 SEC. 18. INJUNCTIONS BY THE STATE TO PREVENT 
 WASTE. Though the statute provides a penalty for the 
 violation of the law preventing the waste of gas, and 
 also gives certain persons the right to go upon the land, 
 where oil and gas is escaping, from the well or wells, in 
 violation of law, and plug up and tube the well or wells 
 and prevent the escape of oil and gas, and a right to re- 
 cover compensation for performing such work, together 
 with costs and attorney's fees, the state has a right to 
 enjoin the violation of such a public statute, as such 
 violation becomes a public nuisance when its violation 
 is done openly, publicly, repeatedly, continiously, per- 
 sistently and intentionally; or when the party does it 
 recklessly, defiantly, persistently and openly and con- 
 tinuously, and asserts a right to continue to do so. 3 The 
 state has also a right to maintain a suit not only on the 
 ground of irreparable injury, but to prevent a great 
 public injury to those who own gas and oil wells and to 
 
 1. Townsend vs. State, 147 Ind., 624; State, Smith vs. McClel- 
 
 land, 138 Ind., 395; Heddrick vs. State, 101 Ind., 564. 
 
 2. Townsend vs. State, 147 Ind., 624; Gentite vs. State, 29 Ind., 
 
 415; Jameson vs. Indiana Natural Gas and Oil Co., 128 
 Ind., 555; Mode vs. Beasley, 143 Ind., 306; Woods vs. Mc- 
 Coy, 144 Ind., 316; 33 L. R. A., 970. 
 
 3. State vs. Ohio Oil Co., 150 Ind., 21; Ohio Oil Co. vs. Indiana, 
 
 177 U. S., 190; Peoples Gas Co. vs. Tyner, 131 Ind., 281; 
 People vs. Truckee Lumber Co., 116 Cal., 397, 48 Pac. 374; 
 People vs. St. Louis, 10 111., 351; State, etc., vs. Crawford, 
 28 Kan., 726; Crawford vs. Tyrrell, 128 N. Y., 344. 
 
18 Individuals May Enjoin Waste. 
 
 those who build houses and factories for its use and to 
 the state which fitted its state institutions for its use. 1 
 
 SEC. 19. INJUNCTION BY INDIVIDUALS TO PREVENT 
 WASTE. Each proprietor has a right to reduce natural 
 gas to possession, and the legislature has a right to pro- 
 tect the collective owners of gas in a common reservoir, 
 or series of reservoirs, connected together, and as each 
 of the common owners has a right to reduce gas to pos- 
 session, in the ordinary way, and make it his individual 
 property, so any act which amounts to the commission 
 of waste or the destruction of common property is an in- 
 jury to any other co-owners, and, independently of any 
 statute, the common owners of gas in the common reser- 
 voir separately or collectively have a right to enjoin any 
 and all acts of another owner which will naturally injure 
 or which will involve the destruction of the property of 
 the common fund or the common supply of gas. 2 
 
 SEC. 20. INCREASING FLOW OF GAS BY THE USE OP 
 EXPLOSIVES. The courts of Indiana held, when the sub- 
 ject first came before them, that the owners of a gas well 
 had a right to explode nitro-glycerin in the well to in- 
 crease the flow of the well, though, in doing so, the gas 
 would be drawn from the lands of an adjoining owner 
 thereby; because the owner of the land had a right to 
 sink a well on his own land, no valid reason existed, why 
 the flow might not be increased by enlarging his well by 
 artificial means. 8 The reasoning of the case is, that land 
 extends to the center from the circumference, and any- 
 thing that is from the surface to the center, in a direct 
 J.ne, may be appropriated by the owner of the surface; 
 
 1. State vs. Ohio Oil Co., 150 Ind., 21; Ohio Oil Co. vs. State, 
 
 177U.S. 
 
 2. Manufacturers Gas and Oil Co. vs. Indiana Gas and Oil Co., 
 
 Ind., ; 57 N. E., 912; 50 L. R. A., 768; State of 
 Indiana vs. Ohio Oil Co., 150 Ind., 21; Brown vs. Spilman, 
 155 U. S., 665; Jameson vs. Indiana Natural Gas and Oil 
 Co., 128 Ind., 555; Hubbard vs. Stock, 84 Fed. R., 579; Del 
 Monte Mining and Milling Co. vs. Last Chance Mining and 
 Milling Co., 17. U. S., 60; Ohio Oil Co. vs. Indiana, 177 
 U. S., 190. 
 
 3. Peoples Gas Co. vs. Tyner, 131 Ind., 277; 16 L. R. A., 443. 
 
Eight to Use Pump Where Not Prohibited. 19 
 
 and the owner of a gas well had the same rights as the 
 owner of a well of water, which is fed by percolating 
 waters; and the owner of such well may appropriate all 
 the percolating waters to his own use, though the well on 
 his neighbor's land is destroyed. 1 The court in a later 
 case, receded from the doctrine of percolating or sub- 
 terranean waters and said the difference was so marked 
 that the principles which the courts apply to such waters 
 are not applicable to such a new and peculiar fluid as 
 natural gas, and denied the right of the owner of land to 
 increase the flow by artificial means. 2 
 
 SEC. 21. RIGHT TO USE A GAS PUMP TO INCREASE 
 THE FLOW OF OIL WHERE No STATUTE PROHIBITS ITS 
 USE. It is held that a person owning and operating oil 
 wells has a right to use a gas pump to increase the sup- 
 ply of oil in his wells though the use of such an artificial 
 means to obtain the oil would decrease the supply of oil in 
 wells on the lands of an adjoining or remote owner. 3 The 
 reasoning of the court in the case is, that the owner of 
 the land was entitled to its ordinary and reasonable use; 
 and, if by sinking the well, the owners may appropriate 
 the waters which supply his neighbors' wells; and that 
 the user of the gas pump had the exclusive right to drill 
 for oil on his own land, so the owner was at liberty to use 
 all means to obtain all the oil and gas in or obtainable 
 through the lands, and that the owner may resort to the 
 use of all known modern machinery and appliances. 4 
 Percolating waters below the surface of the earth are the 
 
 1. Peoples Gas Co. vs. Tyner, 131 Ind., 281; Hanson vs. McCue, 
 
 42 Cal. 303; Wheally vs. Baugh, 25 Pa., 528; Frazier vs. 
 Brown, 12 Ohio St., 302; Acton vs. Blundell, 12 Mees. and 
 W., 324; Delhi vs. Youmans, 50 Barb., 316; Hosier vs. 
 Caldwell, 7 Nev. 316. 
 
 2. Manufacturers Gas and Oil Co. vs. Indiana Natural Gas and 
 
 Oil Co., Ind., ; 57 N. E., 912; 50 L. R. A., 767. 
 
 3. Jones vs. Forest Oil Co., 194 Pa., 379: 44 Atl., 74; 48 L. R. 
 
 A., 748. 
 
 4. Jones vs. Forest Oil Co., supra; Westmoreland and Cambria 
 
 Natural Gas Co. vs. DeWitt, 130 Pa., 245; 18 Atl., 725; 5 L. 
 R. A., 732. 
 
20 Waste of Gas. 
 
 property of no one, but everyone has a right to appropri- 
 ate them to his own use as far as he can, and the principles 
 of natural user did not apply; and, if one has a right to 
 use anything in nature, the exercise of that right to use 
 may be accomplished by all the skill and invention of 
 which man is capable; and however ingenious or artificial 
 these means may be, his right to appropriate the com- 
 mon source is not lessened because of such means, as a 
 person has a right to use a steam pump to gain posses- 
 sion of the waters beneath the earth, 1 so no reason exists 
 why such person may not use a gas pump to get oil, 
 when the cost of such a pump is within the reach of all 
 and is not generally used only when the oil is well nigh 
 exhausted. 2 
 
 SEC. 22. WASTE OF GAS IN CASE THERE is No 
 STATUTE PROHIBITING WASTE. The owners of a tract 
 of land bored a gas well thereon; and, after the sinking 
 of the well, the amount of gas flowing from the well was 
 so limited, as did not warrant the piping of the gas, so 
 that it could be utilized for useful purposes, nor could a 
 sale be made of the well. Under these circumstances 
 the owners of the well permitted the gas to blow away 
 through the air and thus go to waste, until owners of 
 adjoining tracts of land who had productive gas wells 
 on their premises, went to where the well was located 
 and plugged the well at a cost of $200; and the owners 
 of the well thereafter removed the plugs, and set fire to 
 the gas, which burned, as it flowed from the mouth of 
 the open gas well; and then the owners of the adjoining 
 lands sought to have the owners of the burning well 
 enjoined from permitting the gas to go to waste, on this 
 ground: that, on account of the geological formation in 
 the locality of all the wells, is such that the gas-bearing 
 sand-rock underlaid all the land, and formed the common 
 reservoir from which gas was obtained; and that, by 
 penetrating any tract of land, all the land in the terri- 
 
 1. Ballard vs. Tomilson, L. R. 29 Ch. Dev., 115. 
 
 2. Jones vs. Forest Oil Co., 194 Pa., 375. 
 
No Right to Injure Others. 21 
 
 tory was subject to damage, and for that reason the flow 
 of burning" gas which was going to waste irreparably 
 injured their wells. The injunction was denied on the 
 ground that it was sought to limit the power of the 
 owner of the gas from the use that could be made of it. 
 That if the owner of oil or gas could sell them, then his 
 power over them was unlimited, but if he could not, he 
 must not let them go to waste, so that his neighbor 
 might appropriate them and sell them. The owners' 
 right to the gas coming through his well was unlimited, 
 as is his right to the trees that grow on his land, and no 
 rule or principle of equity sustained the contention of 
 those who sought to have the owners of the burning well 
 enjoined. * 
 
 SEC. 23. No RIGHT TO DRILL WELLS FOR THE PUR- 
 POSE OF DOING INJURY TO OTHERS. A man has no right 
 to use his property for the sole purpose of injuring others, 
 as such a use is not one of the rights incident to owner- 
 ship. The right to property is not founded on any such 
 a use, but only when the use is lawful in itself and the 
 injury occurs as an incident to the use. 2 So a man has 
 no right to sink a well on his own land for the sole pur- 
 pose of destroying the well of his neighbor; 8 and this is 
 more especially true of oil and gas, because no man has 
 absolute property in them, but a mere right to take and 
 make them his property, and when a person acquires 
 them they come perhaps from the lands of his neighbor 
 as well as his own. 4 The lower court in Hague vs. Wheeler 
 found, that the acts of the parties who permitted the 
 gas to flow through the air were malicious, and enjoined 
 the parties from permitting it to continue to do so for 
 
 1. Hague vs. Wheeler, 157 Pa., 324; 22 L. R. A., 141. 
 
 2. Eideaut vs. Knox, 148 Mass., 368. 
 
 3. Chelsey vs. King, 74 Me., 164; Greenleaf vs. Francis, 18 Pick, 
 
 117; Chasemore vs. Richards, 7 H. L. Cases, 388; Flaherty 
 vs. Moran, 81 Mich., 52. 
 
 4. Westmoreland & Cambria Nat. Gas Co. vs. DeWitt, 130 Pa., 
 
 235; Jones vs. Forest Oil Co., 194 Pa., 379. 
 
22 Care of Abandoned Wells. 
 
 that reason; 1 but the higher court on appeal found that 
 the sinking of the well was done at the request of one of 
 the complaining- parties with the view of making a sale 
 of the well when completed, so no malicious motives 
 prompted the parties to sink the well, but the court, 
 though not deciding, intimated that if the well was bored 
 for the purpose of injuring other owners of wells, an in- 
 junction would lie. 2 
 
 SEC. 24. ABANDONED WELLS PENALTIES RECOV- 
 ERY. The various states have passed laws for the pro- 
 tection of oil and gas in their natural reservoirs from 
 being flooded with water where wells are abandoned, 
 and also for the prevention of gas to escape in the open 
 air when such wells are abandoned. The penalty im- 
 posed by statute in such a case is not incurred under the 
 Ohio statute as long as the casing remains in the well, 
 so as to prevent the water from reaching the sand from 
 which the oil is obtained or its natural reservoir. 3 The 
 state must show that the owner of such a well has done 
 some acts showing an intention to abandon such well, 
 before the penalty is incurred; 4 but the petition to recover 
 that penalty need not aver that the casing has been with- 
 drawn from the well. 5 And where a resident of a county 
 has a right to file a petition to recover such penalty, the 
 petition must show on its face that such petitioner is a 
 resident of the county, but to take advantage of such 
 defect in the petition, the demurrer must be special. 6 
 Though the public can enact statutes preventing the waste 
 of gas and prescribe the mode and manner of collecting 
 the penalties incurred, private owners of gas lands have 
 no rights against an adjoining owner to prevent the com- 
 mission of such waste under the Pennsylvania decision. 7 
 
 1. Hague vs. Wheeler, 22 L. R. A., 142-145. 
 
 2. Hague vs. Wheeler, 157 Pa., 324; 22 L. R. A., 141. 
 
 3. State vs. Oak Harbor Gas Co., 18 Ohio Cir. Ct., 751; State, 
 
 Gordon vs. Oak Harbor Gas Co., 1 Toledo Leg. News, 474. 
 *4. State vs. Oak Harbor Gas Co., 18 Ohio C. C., 751. 
 
 5. State, Gordon vs. Oak Harbor Gas Co., 53 Ohio St., 347; 41 
 
 N.E., 584. 
 
 6. State vs. Oak Harbor Gas Co., 18 Ohio Cir. Ct., 751. 
 
 7. Hague vs. Wheeler, 157 Pa. St., 324; 22 L. R. A., 141. 
 
Incorporeal Hereditaments. 23 
 
 SEC. 25. RIGHT TO TAKE OIL AND GAS AS AN INCOR- 
 POREAL HEREDITAMENT. It has been seen that oil and 
 natural gas are treated as land while in place, but no 
 man has an estate or title to them while in the ground, 
 because they might leave him and become part of the 
 lands of another, without any act on his part or without 
 any act of the person to whose land they went to form a 
 part, and such owner has no possession, of them, as pos- 
 session of the surface gives no title, estate or possession 
 of the oil and gas beneath the surface; x and where one 
 is out of possession he has no property right in them; 2 
 so then a person, though he may be the absolute owner 
 of the land, has only a mere right to reduce to possession 
 the oil and gas which he may find beneath the surface of 
 his land. This right is an absolute property right which 
 the owner has a right to exercise, and which no law can 
 prevent him from so doing. 3 This right is an incorporeal 
 hereditament; and as has been said, "Corporeal heredita- 
 ments are the substance which may be always seen, al- 
 ways handled; incorporeal hereditaments are but a sort 
 of accidents, which inhere in and are supported by that 
 substance; may belong or not belong to it without any 
 visible alteration therein," so oil and gas is a mere inci- 
 dent to the ownership of land, and they may belong to or 
 form a part of it or they may not. 4 In grants and reser- 
 vations of oil and gas no estate passes to the grantee, 
 but the mere right to the oil and gas which may be found. 5 
 
 1. Westmoreland & C. Gas Co. vs. DeWitt, supra; Murray vs. 
 
 Allard, 100 Tenn., 100; 39 L. R. A., 249, 43 S. W., 355. 
 
 2. Hall vs.Vernon, 47 W.Va., 297; 34 S. E., 764; 49 L. R. A., 464. 
 
 3. Ohio Oil Co. vs. Indiana, 177 U. S., 190; Manufacturers Gas & 
 
 Oil Co. vs. Indiana Natural Gas Co., Ind.; 57 N. E., 912; 
 50 L. R. A., 768. 
 
 4. 2 Bl. Comm., 20. 
 
 5. Funk vs. Haldeman, 53 Pa., 229; Wood County Petroleum Co. 
 
 vs. West Virginia Transportation Co., 28 W. Va., 210; 
 Hall vs. Vernon, 47 W. Va., 297; 34 S. E., 746; 49 L. R. A., 
 464; Shepherd vs. McCalmont Oil Co., 38 Hun., 37. 
 
GAS AND OIL. 
 
 PERSONAL PROPERTY. 
 
 CHAPTER II. 
 
 SECTION 1. GAS AND OIL AS PERSONAL PROPERTY. 
 Petroleum is a mineral forming- part of the land, but 
 when the petroleum is taken from the well and is 
 brought to the surface and is confined in pipes or tanks, 
 the petroleum becomes the property of the owner of the 
 well and the petroleum then for the first time became 
 the sole and separate property of anyone. The separa- 
 tion of the petroleum from the balance of the realty 
 makes it personal property. * 
 
 Petroleum and natural gas remain realty and do not 
 change their character simply because the owner of the 
 land by a lease gives the right to another to take or pro- 
 duce them; but when the lessee brings them to the sur- 
 face and separates them from the realty, title vests in 
 the lessee and lessor in proportion to the amount each 
 receives, and when they are so brought to the surface 
 they become personal property. 2 So when oil or gas is 
 wrongfully severed they become personal property and 
 belong to the owner of the inheritance. 8 Gas, while in 
 the land, is not a commercial commodity, but when 
 placed in pipes and tanks gas assumes all the elements 
 of other commercial commodities, such as coal, petro- 
 leum, salt, and other minerals, and is personal property. * 
 
 1. Kelly vs. Ohio Oil Co., 57 Ohio, 317: 49 N. E., 399; 39 L.R.A. , 
 
 765. 
 
 2. Carter vs. County Court of Tyler Co., 43 L. R. A., 725; 45 W. 
 
 Va.,806; 32 S. E., 216. 
 
 3. Williamson vs. Jones, 43 W. Va., 562; 27 S. E. 411; 38 L. R. A., 
 
 694; Hughes vs. United Pipe Line Co., 119 N. Y., 423. 
 
 4. Indiana vs. Indiana & Ohio Gas & Oil Co., 120 Ind.. 575; 6 L. 
 
 R. A., 579. 
 
Commodities of Inter- State Commerce. 25 
 
 SEC. 2. STATUTE PROHIBITING EXPORTATION IN- 
 VALID. A statute providing that it shall be unlawful 
 for any person or corporation to drill or mine for oil or 
 gas to transport to places outside the state is invalid 
 because it is an interference with interstate commerce, 
 and the regulation thereof belongs entirely to the Fed- 
 eral government. 1 The reasoning of the case is, that 
 natural gas is as much an article of commerce as coal, 
 ore, petroleum and the like commodities, and that 
 though gas may not be an article of commerce in place 
 below the surface, yet when natural gas reaches the sur- 
 face and is placed in pipes or tanks, the rules apply to 
 gas as to other commercial commodities and anything 
 that is sold in the markets of the country thereby 
 becomes a commercial commodity. 2 And even though 
 there is a point when such articles as gas are not a com- 
 mercial commodity, yet when they assume such a stage 
 that they are bought and sold as any commercial com- 
 modity and are fit for transportation, then the law appli- 
 cable to interstate commerce applies, and a law which 
 prohibits transportation from out of the state is void. 8 
 
 SEC. 3. POLICE POWER OVER TRANSPORTATION. 
 A statute prohibiting the exportation of natural gas is 
 not a valid exercise of the police power of the state, 
 where it does not in any way provide for the safety or 
 health of the people or their comfort; but the sole aim 
 is to prevent the acquisition of gas for the purpose of 
 transportation and it is not the mode of procuring nat- 
 ural gas or the mode of transporting which the statute 
 prohibited, but the prohibition is directed against the 
 persons engaged in procuring and transporting the com- 
 
 1. State ex rel. Corwin vs. Indiana & Ohio Oil & Gas Co., 120, 
 
 Ind.,575;6L. R. A.,579. 
 
 2. Citizens Gas & Mining Co. vs. Elwood, 114 Ind., 332; Carothers 
 
 vs. Philadelphia Co., 118 Pa., 488; Columbia Conduit Co. 
 vs. Com. 90 Pa., 307; West Virginia Transpt. Co. vs. Vol- 
 canic Oil & Coal Co., 5 W. Va., 382. 
 
 3. Coe vs. Errol,116U. S.,517; State ex rel. Corwin vs. Indiana 
 
 & Ohio Gas & Min. Co., 120 Ind., 575. 
 
26 Police Power. 
 
 modity; so such an act cannot be taken out of the inhibi- 
 tion against interference with interstate commerce, 
 because such a law is not founded on the right of the 
 state to exercise its police power for the safety, health, 
 and comfort of the people, but is simply a prohibition 
 from transporting a commodity. 1 
 
 SEC. 4. POLICE POWER. VALID REGULATION- 
 VESTED RIGHTS. The state has a right to pass a law 
 regulating the pressure of natural gas conveyed through 
 pipes to the place of consumption and such a regulation 
 is nothing more than the exercise of the local police 
 power of the state and is not an interference with inter- 
 state commerce. 2 The right is grounded on the fact that 
 natural gas is inflammable, explosive, and a highly dan. 
 gerous commodity, and is of an extraordinary species 
 and nature, all of which is a matter of common knowl- 
 edge and of which the courts will take judicial notice. 3 
 Safety, health and comfort to the public is of a higher 
 consideration than mere private rights, to which the lat- 
 ter must always yield. The owner of property which is 
 so dangerous as to require regulations has no rights 
 thereto^superior to the police power and against such a 
 power there is no vested right; and, though a person 
 invests ^money in constructing a pipe line, when there 
 was no law limiting the amount of pressure of gas, and 
 gas will not flow at the maximum pressure fixed by the 
 statute, yet such a person must yield to the police power 
 of the state. 4 
 
 1. State, Corwin vs. Indiana & Ohio Gas & Oil Mining Co., 120 
 
 Ind., 575; 6 L.R.A., 579; Minnesota vs. Barber, 136 U. S., 
 313. 
 
 2. Jamieson vs. Indiana Nat. Gas & Oil Co., 128 Ind., 555. 
 
 3. Lanigan vs. New York Gas Light Co., 71 N. Y., 29: St. Louis 
 
 vs. Fuchs, 133 Mo., 168; Wood vs. Northwestern Ins. Co., 46 
 N. Y., 421; Com. vs. Peckham, 2 Gray, 514; Schlicht vs. 
 State, 56 Ind., 173; Freeze vs. State, 23 Fla., 267; State vs. 
 Hayes, 78 Mo., 308; Lohman vs. State, 81 Ind., 15. 
 
 4. Jamieson vs. Indiana Nat. Gas & Oil Co., 128 Ind., 555; Bos- 
 
 ton Beer Co. vs. Massachusetts, 97 U. S., 32; Stone vs. 
 Mississippi, 101 U. S., 814; New Orleans Gas Light Co. vs. 
 La. L. &. H. P. & Mfc. Co., 115 U. S., 650-72; Northwest- 
 ern Fertilizer Co. vs. Hyde Park, 97 U. S., 659. 
 
Regulation of Pressure. 27 
 
 SEC. 5. REGULATING PRESSURE WITHIN THE STATE 
 ON GAS SHIPPED OUTSIDE THE STATE is NOT AN INTER- 
 FERENCE WITH INTERSTATE COMMERCE. The production 
 of natural gas is strictly a local occupation, because it 
 is confined to a very limited territory and is a question to 
 be dealt with alone by the legislature of the state. The 
 pipes for its transportation must pass along the streets 
 and highways or through the private lands of others; 
 and the persons and property exposed to danger are 
 those of the state where the pipes are laid. When a gas 
 company lays its pipes it must get permission from the 
 cities and towns to lay them on the streets, and from 
 the highway overseers, when on the public highway, and 
 must come to the local legislature to get permission to 
 condemn the lands of a private owner to lay its pipe 
 lines. The right to regulate local affairs is strictly 
 within the power of the various states; and the exercise 
 of these rights inheres in every state and is but the call- 
 ing into action of the police power of the state, and such 
 laws are not void though they indirectly affect inter- 
 state commerce. 1 
 
 SEC. 6. REGULATIONS OF SALE, TRANSPORTATION 
 AND STORAGE OF OIL AND GAS AND ALSO THE PRODUC- 
 TION. Natural Gas and Petroleum are inflammable and 
 highly explosive agencies and they are dangerous alike 
 to life, health and property, and courts will take judicial 
 notice of their dangerous characteristics as they are of 
 such common knowledge as pertain to experience and 
 affairs of almost every man's daily life. 2 The national 
 government recognized the dangers of coal oil at a very 
 early day and enacted a law imposing a penalty upon 
 
 1. Jamieson vs. Indiana Natural Gas & Oil Co., 128 Ind., 555; 
 
 Munn vs. Illinois, 94 U. S., 135; Cooleyvs. Wardens of the 
 Port of Philadelphia, 53 U. S., 299; Sherlock vs. Ailing, 93 
 U. S., 99; Mobile Co. vs. Kimball, 102 U. S., 691; Morgans 
 \ L. & T. R. & S. Co. vs. Louisiana, 118 U. S., 464; Ohio Oil 
 Co. vs. Indiana, 177 U. S., 190. 
 
 2. State vs. Hayes, 78 Mo., 307; Brown vs. Piper, 91 U. S., 37; 
 
 Fuchs vs. St. Louis, 133 Mo., 168; 34 L. R. A., 118. Under- 
 zook's case, 76 Pa., 340; Jones vs. United States, 137 U. S., 
 202. 
 
28 Transportation Regulations. 
 
 anyone who offered for sale oil below a certain specific 
 gravity and the same power is vested in the state. 1 
 Many of the states, if not all, have passed laws similar 
 to those of the national government requiring petroleum 
 which is offered for sale to be inspected and prohibiting 
 its sale if it did not come up to the requirements of the 
 statute, and such laws have been upheld by the Federal 
 Supreme Court, as they are made for the protection of 
 the lives, health and the property of the community, and 
 are to be first considered as against any right exercised 
 by a citizen which may be injurious; 2 and the regulation 
 of the pressure of gas is no more than a police regulation 
 and is not per se a regulation of commerce, as the pipes 
 for the conveyance of oil and gas are local vehicles, con- 
 veying 1 dangerous products, and the pressure is a power 
 locally employed. The right of the state to regulate 
 such local instrumentalities is a doctrine well settled by 
 the courts. 3 A city which has the power to enact laws 
 coming within the police powers of the state has the 
 power to regulate the storage of petroleum and its prod- 
 ucts within the limits of the city, 4 but when the city pos- 
 sesses an ordinance regulating the storage of petroleum, 
 the council must pass an ordinance prescribing the rules 
 which shall regulate storage of petroleum, so that the 
 regulation will apply to all persons alike, and when the 
 city council reserves the right to grant or refuse the 
 permit, the ordinance is void. 5 A city may also pass an 
 ordinance prescribing the conditions by which an oil 
 well may be drilled within a city or may prohibit the 
 
 1. United States vs. DeWitt, 76 U. S., 41. 
 
 2. Patterson vs. Kentucky, 97 U. S., 501. 
 
 8. United States vs. DeWitt, 76 U.S., 41; Patterson vs. Kentucky, 
 97 U. S., 501; Ohio Oil Co. vs. Indiana, 177 U. S., 190; Gib- 
 bons vs. Ogden, 22 U. S., 1; Smith vs. Alabama, 124 U. S., 
 465; Webber vs. Virginia, 103 U. S., 348; Turner vs. Mary- 
 land, 107 U. S., 38. 
 
 4. Waters Pierce Oil Co. vs. New Iberia, 47 La. Ann., 863. 
 
 5. Richmond vs. Dudley, 129 Ind., 112; 28 N. E., 312; 13 L.R.A., 
 
 587. 
 
Trusts and Combines. 29 
 
 drilling 1 of such a well; 1 and may prohibit the sale of 
 petroleum which has not been inspected. 2 
 
 SEC. 7. POLICE POWER OF THE STATE TO REGULATE 
 TRUSTS AND COMBINATIONS. FOREIGN CORPORATIONS 
 ENGAGED IN THE SALE OF OIL. No foreign corporation 
 has a right to engage in business in a state without the- 
 consent of the state and can do no business in a foreign 
 state without its consent except that which comes within 
 the protection of the inter-state commerce clause of the 
 United States constitution. 3 So a foreign corporation 
 cannot evade the anti- trust laws of a state and shield 
 itself behind the laws of the state where it was incorpo- 
 rated, since the permit given to do business may be re- 
 voked, as such permit is subject to the police power of 
 the state. It is for the state to say how a particular 
 business shall be carried on, and when the legislature 
 has declared that a certain business or the dealing in 
 commodities is one which concerns the public welfare 
 and that any combination of ^corporations which have a 
 tendency to control the product and their prices is in 
 violation of law, the imposition of a penalty of forfeiture 
 is but a valid exercise of the police power. There can 
 not, however, be an absolute judgment of forfeiture in 
 such case but the court must limit its judgment to trans- 
 actions which are local in their nature, so as not to in- 
 terfere with the commerce of the foreign corporation 
 which is protected by the commerce clause of the Fed- 
 eral Constitution. 4 
 
 1. Agenew vs. Washington, 7 Pa. Co. Ct., 780. 
 
 2. State vs. Finch, 37 Minn., 433; State vs. Baggott, 96 Mo., 63; 8 
 
 S. W.,737. 
 
 3. Waters Pierce Oil Co. vs. State of Texas, 177 U. S., 28; Same 
 
 vs. Same, 19 Tex. Civ. App., 1-44, S. W., 936. 
 
 4. Waters Pierce Oil Co. vs. State of Texas, 177 U. S., 28. 
 
PARTNERSHIPS. 
 
 IN THE PRODUCTION OP OIL AND GAS. 
 
 CHAPTER III. 
 
 SECTION 1. MINING PARTNERSHIPS; How CREATED 
 WHAT CONSTITUTES. When tenants in common or joint 
 tenants who may own or possess by lease or otherwise, 
 lands, unite and operate the land, together, for the pur- 
 pose of the production of minerals, the persons so en- 
 gaged constitute a partnership. 1 In law the owners of 
 such mining properties hold their property as joint ten- 
 ant or tenants in common. 2 No express agreement is nec- 
 essary to constitute a mining partnership and it is suffi- 
 cient when they are jointly conducting a mining venture; 3 
 or when two joint tenants operate together no express 
 agreement is necessary, as their acts and doings will cre- 
 ate a partnership by operation of law. 4 A mining part- 
 nership exists when prior to the acquisition of a lease and 
 at the time the enterprise was started, the parties under- 
 took to acquire a lease, and agreed to develop the mine and 
 extract the ores from the land and to pay the expenses 
 and share the profits; 8 so when the owners of unequal 
 interest in lands agreed that the lands should be devel- 
 oped for mining purposes and that each should contrib- 
 ute in proportion to his interests and each should bear 
 
 1. Jeffreys vs. Smith, 1 Jac. & W., 298; Bybee vs. Hawkett, 12 
 
 Fed. Rept., 649; Skillman vs. Lochman, 23 Cal., 198; 
 Adams vs. Briggs Iron Co., 7 Cush., 351; Graham vs. 
 Pierce, 19 Gratt., 28; Babcok vs. Stewert, 58 Pa., 179. 
 
 2. Reed vs. Meagher, 14 Colo., 335; 9 L. R. A., 461. 
 
 3. Snyder vs. Burnham, 77 Mo., 52. 
 
 4. Freeman vs. Hemenway, 75 Mo. App., 611; Decker vs. 
 
 Howell, 42 Cal., 636. 
 
 5. Reed vs. Meagher, 14 Colo., 335. 
 
Mining Partnerships. 31 
 
 the losses in the same proportion as well as each should 
 share the profits in a like proportion, it is a mining part- 
 nership. * The principles of partnership law apply to 
 the owners while they are engaged in the production of 
 minerals from the mines, for the protection of the rights 
 and interests of the parties themselves as well as third. 
 persons. 2 The rules applicable to ordinary mining part- 
 nerships apply to tenants in common or joint tenants of 
 an oil or gas lease actually engaged in the production of 
 the same under an agreement that each is to share in the 
 profits and losses in proportion to the interest of each; 
 and the persons so associated will be. regarded as con- 
 stituting mining partnership. 8 A mining partnership is 
 not created by taking a mortgage on the mining tools 
 and the mine for a debt then due, where possession was 
 to continue in the mortgagor, and at the time of each 
 "clean up" the proceeds were to be turned over to the 
 mortgagee to be applied in paying the running expenses 
 of the mine and the mortgage debt. 4 And when two 
 have interests in a mine and one only develops and oper- 
 ates it, no partnership exists; 5 but when the owner of 
 a mining right contracts with the owner of a mill for the 
 reduction of ores that a certain part of the mineral should 
 vest in the owner of the mill and both should and each 
 would bear a certain portion of the expenses of mining, 
 shipping and milling, and the profits to be shared also, 
 the agreement amounts to a partnership; 6 but under a 
 similar state of facts where the owners of a mine and the 
 person who operated it agree that the ore extracted 
 should be milled at a place owned by a part owner of 
 the mine, and, after paying for the mining and milling, 
 the proceeds should be divided, creates a tenancy in 
 
 1. Childers vs. Neely, 49 L. R. A., 468. 
 
 2. Reed vs. Meagher, 14 Colo., 335. 
 
 3. Childers vs. Neely, W. Va., : 34 S. E., 828; 48 L.R.A., 
 
 468. 
 
 4. Shungkee vs. Davidson, 102 Cal., 188, 36 Pac., 519. 
 
 5. Anaconda Cap. Min. Co. vs. Butte, B. Min. Co., 17 Mont., 
 
 519-43 Pac., 924. 
 
 6. Ashenfelter vs. Williams, 7 Colo. App., 332; 43 Pac., 664. 
 
32 What Constitutes a Partnership. 
 
 common and not a partnership; 1 and where four persons 
 are jointly interested in the operation of a mine, three of 
 whom furnish the money and one his services, all to share 
 in the profits, the relationship is a mining partnership. 8 
 
 SEC. 2. JOINT OPERATION, OR SHARING IN THE EX- 
 PENSE, OR PROFITS, OR WHEN THEY ARE JOINT TENANTS, 
 OR TENANTS IN COMMON, WILL NOT ALWAYS CREATE A 
 PARTNERSHIP. Where tenants in common were the own- 
 ers of oil rights, and they entered into an agreement to 
 sink oil wells, and that each was to bear his proportion 
 of the expenses and receive a share of the profits, ac- 
 cording to the interest of each, they have not changed 
 their relation as tenants in common and the agreement 
 created no partnership. 8 The owners of a leasehold 
 estate do not change their relation, when they had, 
 on the leased premises, an oil well and machinery, and 
 they agree to sink another well on the leased lands, and 
 each was to contribute his share of the cost and receive 
 his share of the product although each may have to con- 
 tribute to losses sustained if the product does not exceed 
 the cost as the gains and losses of each one must be 
 paid by each individual and one tenant is not bound to 
 make up any deficiency of his co-tenants. 4 So when ten- 
 ants in common agree that one of them should sink a well 
 and furnish all the tools, and machinery, for so doing, 
 and that each of the others would bear his share of the 
 expenses in proportion to his interest in the premises 
 demised and that the oil produced should be placed in 
 pipe lines and each should receive a share equal to his 
 interests in the land, does not create a partnership and 
 the co-tenants are not liable for the purchase price of 
 appliances bought by the first tenant. 5 The rule prevail- 
 ing in Pennsylvania is that the instrument of convey- 
 ance is the foundation of the rights of the parties; and, 
 
 1. Vietti vs. Nesbett, 22 Nev., 390; 41 Pac., 151. 
 
 2. Lyman vs. Schwartz, 13 Colo. App., 318; 57 Pac., 735. 
 
 3. Butler Saving Bank vs. Osborne, 159 Pa., 10; 28 AtL, 163. 
 
 4. Dunham vs. Loverock, 158 Pa., 197. 
 
 5. Taylor vs. Freid, 161 Pa., 53; 28 Atl., 993. 
 
Differ from Commercial Partnerships. 33 
 
 if a deed or a lease shows on its face, that the convey- 
 ance was to them as tenants in common it is not within 
 the power of any one to establish by parole evidence 
 that the land is held otherwise or that it was brought 
 into a partnership by a parole agreement. 1 The rules, 
 in that state, as to the bringing in of land into the part^ 
 nership, is more strict than in most of the states, where 
 the interest is a mere chattel real, such as an oil lease, 
 and is held in the individual names of the partners, yet 
 it may become partnership property in Pennsylvania 
 and assets when such property is so treated by the part- 
 ners. 8 And a partnership may exist as to mining, 
 although the land is held as tenants in common. 3 
 
 SEC. 3. THERE is A DIFFERENCE IN MANY RESPECTS 
 BETWEEN A TRADING OR COMMERCIAL PARTNERSHIP AND 
 A MINING PARTNERSHIP. In trading partnerships death 
 will ordinarily cause a dissolution of the partnership; 
 and no transfer can be made without the consent of all 
 of the partners by which the transferee may become a 
 partner of the remaining members; while in a mining 
 partnership, neither death, insanity, imprisonment, 
 bankruptcy or sale will dissolve a partnership. 4 Mining 
 partnerships are distinct associations with different 
 rights and liabilities attaching to their members than 
 pertain to ordinary partnership, and they exist in all 
 mining communities. Indeed, without them, successful 
 mining would be attended with difficulties and embar- 
 rassments much greater than at present. 5 So when ten- 
 
 1. McCormick's App., 57 Pa., 54; 98 Am. Dec., 91;Geddes' App., 
 
 84 Pa., 482; Roberts' App., 70 Pa., 79;Lefever's App., 69 
 Pa., 122. 
 
 2. Brown vs. Beecher, 120 Pa., 590; 15 Atl., 608. 
 
 3. Patrick vs. Weston, 22 Colo. 45-43 P., 446. 
 
 4. Thomas vs. Hurst, 73 Fed., 372: Eeed vs. Meagher, 14 Colo., 
 
 335; 25 Pac.,681; Slater vs. Haas, 16 Colo., 574; 25 Pac., 
 1080; Skillman vs. Lochman, 23 Cal., 198; McConnell vs. 
 Denver, 35 Cal., 365; Higgins vs. Armstrong, 9 Colo., 38; 
 Fereday vs. Nightwick, 1 Russ. & M.,45; See Freeman vs. 
 Hemenway, 75 Mo. App., 611. 
 
 5. Kahn vs. Central Smelting Co., 102 U. S., 641. 
 
34 No Selection of Members. 
 
 ants in common agree to operate a mine, such tenants 
 thereby do not lose their individual right to sell and dis- 
 pose of their property, but remain as any ordinary tenants 
 in common, and each co-owner may sell or buy from each 
 other, 1 and may purchase a partner's interest at a public 
 sale.* But when the sale is made under a trust deed 
 and the partner's interest is bought in by a third person } 
 with funds taken from the partnership, and is bought 
 for the partner, and then a transfer is made to such 
 partner by the third person, the title of the former part- 
 ner is not divested. 8 
 
 SEC. 4. No SELECTION OF PARTNERS PARTNER 
 HAS No POWER TO BIND A PARTNER. In a mining 
 partnership, unlike ordinary trading partnership, the 
 partners have a right to sell and dispose of their interest 
 to whom they see fit; and, when there is a disposition by 
 sale or otherwise, the person who purchases the interest 
 acquires all the rights of the former owner to participate 
 in the partnership business; so, from the nature of the 
 personalty of a mining partnership, the partners have 
 no selection of the members of the partnership, conse- 
 quently one partner has no implied power to bind his 
 co-partner by pledging his credit, by borrowing money 
 on notes, or mortgages, or drawing bills of exchange, 4 
 and one co-owner cannot bind the other to pay for the 
 development of a mine to which they did not consent. 5 
 
 SEC. 5. A PARTNERSHIP FOR THE DEVELOPMENT 
 OF PETROLEUM is A MINING PARTNERSHIP. ONE PART- 
 NER CANNOT BIND His CO-PARTNER. In the formation 
 
 1. First Nat. Bank vs. Bissell, 2 McCrary, 73; Kahn vs. Central 
 
 Smelting Co., 102 U. S., 641; Bissell vs. Foss, 114 U.S., 252. 
 
 2. Bradbury vs. Barnes, 19 Cal., 120. 
 
 3. Brown vs. Bryan, 51 Pac., 995. 
 
 4. Skilman vs. Lachman, 23 Cal., 198; Jones vs. Clark, 42 Cal., 
 
 180; Reed vs. Meagher, 14 Colo., 335. 
 
 5. Chase vs. Savage Silver Min. Co., 2 Nev., 9; See also Fereday 
 vs. Nightwick, 1 Russ. & Co., 45; Williams vs. Athenbor- 
 ough, 1 Turn. & R., 70; Charles vs. Eshleman,5 Colo,, 107; 
 Lamar vs. Hale, 79 Va., 147. 
 
No Power to Bind Partners. 35 
 
 of ordinary partnerships the partner has a right to make 
 a choice of the persons who shall constitute the part- 
 nership, but in oil and gas ventures, as in all mining 
 ventures, the partners can have no choice; and, when a 
 person buys another person's interest, the partnership 
 is not dissolved but continues. The purchaser takes the 
 place of the retiring partner and cannot be excluded. 
 
 The partners in an oil and gas venture can have no 
 choice as to the members of the partnership, so the 
 authority of one member to bind the other pecuniarily is 
 limited; and, without authority, a partner cannot borrow 
 money, or execute notes, or accept bills of exchange, 
 nor can a general superintendent or manager do so. 
 They can bind the partners only in things that are nee. 
 essary in the transaction of the particular business and 
 which are usual and customary in such business. 1 A 
 mining partnership is a non -trading partnership, which 
 does not confer authority by implication to bind the 
 firm.* And in the absence of evidence that money was 
 ever borrowed for the firm to the knowledge of otherSj 
 or that it was customary for such partner to do so, the 
 mere fact that the money was borrowed in the ordinary 
 course of business is not sufficient, 3 but when the person 
 managing the mine incurs expenses, the manager may 
 pay them out of the proceeds of the mine. 4 So when 
 several parties agree in writing to sink a gas well; and 
 the persons who signed the agreement were to pay a 
 certain sum which was stated in the agreement, and one 
 of the persons who signed the agreement was authorized 
 
 1. Childers vs. Neeley, W. Va., ; 34 S. E. 828; 49 L.R.A., 
 
 468; See also Waldron vs. Hughes, 44 W.Va., 126; 29 S.E., 
 505; Connell vs. Denver, 35 Cal., 368; Judge vs. Braswell, 
 13 Bush., 67; Congdon vs. Olds, 18 Mont., 487; 46 Pac., 261. 
 
 2. Childers vs. Neeley, W. Va. ; 34 S. E. 828; See also 
 
 Pease vs. Cole, 53 Conn., 55; 22 Atl., 681; Deordorf vs. 
 Tacher,78 Mo., 128; Pooley vs. Whitmore, 10 Heisk, 629; 
 Patrick vs. Weston, 22 Colo., 45; Randall vs. Meredith, 76 
 Tex. 669; 13 S. W., 576. 
 
 3. Randall vs. Meredith, 76 Tex., 669; 13 S. W., 576. 
 
 4. Roberts vs. Ebenhart, 1 Kay, 148. 
 
36 Power of Members. 
 
 by the others to let a contract to sink a well, which was 
 done, but when the funds were exhausted and no gas 
 was found at the depth the well was sunk, some of the 
 members increased their subscriptions and the well was 
 sunk deeper, the other members who did not increase 
 their subscriptions were held not liable beyond their 
 subscriptions. l 
 
 SEC. 6. MINING PARTNERSHIP MEMBERS HOLDING 
 THE MAJOR PORTION OF PROPERTY CONTROL. In a min- 
 ing partnership the members who hold a major portion 
 of the property have the power to control the policy of 
 the partnership; and, when disputes and dissensions 
 arise among the members of the partnership, and it is 
 necessary to carry on the business and incur expenses, 
 such members may incur the necessary expenses for so 
 doing, if such is necessary for the benefit of all the mem- 
 bers concerned. 2 So when three persons were members of 
 a partnership for the development of oil and the two who 
 had a major portion of the property, put on repairs on a 
 boiler used in connection with the partnership, on a dis- 
 solution of the partnership such necessary repairs were 
 proper charges against the property of the partnership 
 on an accounting. 8 But when such major owners of the 
 partnership property use the property to develop a 
 business which has no connection with the partnership, 
 and the expenses for repairs were on account of the 
 property being so used, the partners cannot expect the 
 other partner to bear any part of such expenses because 
 it was a wrongful diversion of the partnership property 
 to a business foreign to the partnership. 4 
 
 1. Clark vs. Rumsey, 59 App. Div., 435, Rev. 52 N. Y. S. R. 417. 
 
 2. Childers vs. Neeley, W. Va., ; 34 S.B., 828; 49 L.R.A., 
 
 468; Daugherty vs. Creary, 30 Cal., 290; 89 Am. Dec., 116; 
 Nolan vs. Lovelock, 1 Mont., 224. 
 
 3. Childers vs. Neeley, W. Va., ; 34 S. E., 828; 49 
 
 L. R. A. 468. 
 
 4. Childers vs. Neeley, W. Va., ; 34 S. E., 828; .17 Am. & 
 
 Eng. Enc. Law, p. 1217; 1 Collyer Part. Sect., 312; Story 
 Part. Sect., 169; T. Parson Part., 169. 
 
Diversion of Property. 37 
 
 SEC. 7. DIVERSION OF PARTNERSHIP PROPERTY- 
 LOSS. A partner is entitled to compensation for a loss 
 caused to him by the diversion of the partnership prop- 
 erty in promoting 1 the business of other partners. So 
 when two of the partnership in the production of petro- 
 leum, use a boiler in a business which is foreign to the 
 partnership business, and the production of the part- 
 nership wells was thereby decreased, the partner who 
 had no interest in the enterprise outside the partnership 
 is entitled to compensation from the other partners for 
 all the losses caused by the wrongful diversion of the 
 partnership property. 1 And when funds of a firm are 
 diverted to the payment of debts contracted before he 
 became a member and for which the old members were 
 jointly and severally liable and for which the new mem- 
 ber was not liable because the debts were contracted 
 before the new member entered the firm, such partners 
 must account to the incoming" partner. 2 
 
 SEC. 8. PARTNERSHIP LIENS. Parties eng^ag^ed in 
 the production of oil and g-as as partners have a lien on 
 each partner's interest on a final accounting 1 for the pay- 
 ment of debts. 3 Such a lien is not affected by a provision 
 of a statute, which says the assignment of an oil and 
 gas lease shall be void unless recorded, 4 where the part- 
 nership resulted from an agreement to sink wells by 
 persons holding a gas lease as tenants in common, 5 and 
 share the profits and losses in proportion to their inter- 
 est in the lease and a partnership name was selected 
 and the business was carried on under the name adopted 
 although the gross product is divided instead of the net 
 profit. 6 So where an oil and gas lease was pledged by 
 one of the partners to some firm creditors, thougli not 
 
 1. Childers vs. Neeley, W. Va., ; 34 S. E., 828. 
 
 2. Patrick vs. Weston, 22 Colo., 45; 43 Pac., 446; Brown vs. 
 
 Beecher, 120 Pa., 590; 15 Atl., 608. 
 
 3. Childers vs. Neeley, W. Va., ; 34 S. E., 828. 
 
 4. Ervin vs. Masterman, 16 Ohio, C C, 62. 
 
 5. Ervin vs. Masterman, 16 Ohio, C C, 62. 
 
 6. Ervin vs. Masterman, 16 Ohio, C C, 62. 
 
38 Partnership Liens. 
 
 complying* with the laws relating" to mortgages, the 
 creditors do not lose their rights in equity against the 
 leasehold as property belonging to the partnership. 1 A 
 partner has a lien on the property in oil and gas produc- 
 ing" property and such a lien is not lost by a sale of the 
 property by the partner. 2 And a purchaser is presumed 
 to take it subject to the partnership debts when he buys 
 without the knowledge of the co-partner. 8 And the 
 partnership lien is not lost by signing a note individual- 
 ly to secure the indebtedness of a partnership engaged 
 in the production of oil and gas, 4 and, when under an 
 agreement to prospect for gas, the partners were to share 
 in the profits and losses according to the amount of money 
 subscribed, and in pursuance thereof, after notice to all, 
 a firm name was selected and officers elected; their acts 
 create a partnership among the members and they are 
 liable to third persons for money expended and labor 
 furnished. B 
 
 SEC. 9. PARTNERSHIP LIEN How LOST? The part- 
 nership lien on property is lost when there is a separation 
 of the property such as takes place when the partner- 
 ship property is sold and a division of the proceeds is 
 made. 6 So where three persons were engaged in the 
 production of petroleum, and at the time they formed the 
 partnership it was agreed that, when the petroleum was 
 delivered to the pipe lines of a third person, a certificate 
 of each partner's share should be issued to each, the 
 partner's lien was gone because there was a severance 
 of the social property and each held his share as his 
 separate individual property. 7 So a lien is lost when a 
 transfer certificate was issued by a pipe line company 
 
 1. Brown vs. Beecher, 120 Pa., 590. 
 
 2. Ervin vs. Masterman, 16 Ohio, C C, 62. 
 
 3. Brown vs. Beecher, 120 Pa., 590; 15 Alt., 608. 
 
 4. 'Brown vs. Beecher, 120 Pa., 590. 
 
 5. Clark vs. Eumsey, 52 N. Y. Supp., 417; Contra 59 App. Div., 
 
 435. 
 
 6. Childers vs. Neely, W. Va., ; 34 S. E., 828; 49 L. R. A. 
 
 468; 2 Lindley Part. Sect., 683; 1 Collyer Part. Sect., 108. 
 
 7. Childers vs. Neely, 34 S. E., 828. 
 
Dissolution of Partnerships. 39 
 
 and the partner sold his share, especially when the part- 
 nership agreement provided each partner could dispose 
 of his share of the oil produced. l But where two co-owners 
 of a mine exclude the third and lease the mine to a third 
 person, the owner has a lien on the ore produced by 
 the lessee but has no lien on the ore produced by the 
 lessee for ore taken out before the lessee acquired the 
 mine. 2 
 
 SEC. 10. PARTNERSHIP DISSOLUTION BY SALE 
 GROUNDS RECEIVER. The sale of the whole property 
 of a partnership will dissolve the partnership, so when 
 two persons are in a partnership for the production of 
 gas and they sell the entire property it effects a dissolu. 
 tion of the partnership; 3 and when, in the sale of the gas 
 well which was the sole and only property of the part- 
 nership, it was agreed between the partners and the 
 purchaser that the latter was to furnish gas to each of 
 the partners, but the vendee failed to furnish the gas 
 in an action on the contract for a breach thereof, a 
 joint action cannot be maintained where the gas was to 
 be furnished to each in proportion to the interest in the 
 gas well, since the partnership was dissolved. 4 Where 
 there is discord and dissention between the members of 
 a partnership for the production of oil and gas, such is a 
 good ground for a dissolution; 5 and pending an action 
 for dissolution, a receiver should be appointed and it is 
 wrong to enter a decree excluding one member of the 
 partnership from the business of the firm and permit 
 others to continue the business. 6 
 
 1. Ervin vs. Masterman, 16 Ohio C C, 62. 
 
 2. G. V. B. Min. Co. vs. First Nat. Bank, 95 Fed. Rep. 23. 
 
 3. Penville Natural Gas & Oil Co. vs. Thomas, 21 Ind. App., 1-51 
 
 N. E., 351; See also Wells vs. Ellis, 68 Cal., 243: Blacker 
 vs. Sands, 29 Kan., 551; Whitton vs. Smith, Freem. Ch. 
 (Miss.), 231; Wilson vs. Davis, 1 Mont., 183; Kennedy vs., 
 Porter, 109 N. Y., 526; Thompson vs. Bowman, 6 Wall, 
 316; Theriot vs. Michel, 28 La. Am., 107. 
 
 4. Penville Nat. Gas Co. vs. Thomas, 21 Ind. App., 1-51 N. E., 
 
 351. 
 
 5. Childers vs. Neely, 34 S. E., 828. 
 
 6. Childers vs. Neeley, 34 S. E., 828. 
 
40 Accounting of Partners. 
 
 SEC. 11. ACCOUNTING ON DISSOLUTION. PRESUMP- 
 TIONS. Upon a bill being- filed for a dissolution of a 
 partnership and an accounting 1 , the presumption of law 
 is that the interest of each partner is equal; 1 and there 
 is a presumption also that when the interest of a co- 
 partner is acquired by a third person, such third person 
 becomes a partner though he takes no part in the busi- 
 ness. 2 A bill for an accounting 1 is the proper remedy 
 between parties who are engaged in producing 1 oil and 
 gas from wells and selling 1 the same and hold the lands 
 as tenants in common, from which the oil and gas are 
 produced. 3 When, however, the land is part of the 
 partnership assets and the partners are engaged in the 
 production of oil, equity will not entertain jurisdiction 
 for a simple accounting and a continuance of the part- 
 nership, but when the bill shows that there are dissen- 
 sions among the partners and there are debts which 
 some of the partners will not contribute to pay, equity 
 will dissolve the partnership and order its assets sold. 4 
 
 1. Clark vs. Brown, 83 CaL, 181; 23 Pac., 289. 
 
 2. Taylor vs. Castle, 42 CaL, 367; Nesbet vs. Nash, 52Cal.,540; 
 
 Jerfferys vs. Smith, 3 Russ., 158. 
 
 3. Johnson vs. Price, 172 Pa., 427; 33 Alt., 688. 
 
 4. Childers vs. Neeley, 34 S. E., 828; Am. & Eng. Die. in Eq. 
 
 Vol. 5, page 52; Randolph vs. Kinney, 3 Rand. Va.,394; 
 Coville vs. Gilman, 13 W. Va., 314. 
 
Life Tenants and Tenants in Dower. 
 
 CHAPTER IV. 
 
 SECTION 1. RIGHTS OF A LIFE TENANT. Gas and 
 Petroleum are minerals and being- minerals are part of 
 the land. The rules of law are well settled that a life 
 tenant cannot do anything 1 which is of permanent injury 
 to the estate of the reversioner and remainderman, for 
 there is a duty imposed on the life tenant to protect the 
 estate of the remainderman and reversioner; 1 so a life 
 tenant cannot bore for oil and g~as and take them from 
 the ground, because the oil and g~as are a part of the cor- 
 pus of the estate; 2 but if the mines or wells are open at 
 the time of the vesting 1 of the life estate, the life tenant 
 may work them to exhaustion as they are then consid- 
 dered as mere annual profits of the land. 3 A tenant 
 for life is also entitled to take reasonable estovers, such 
 as wood from off the land for fuel purposes, for fences, 
 agricultural purposes and all necessary improvements. 4 
 
 SEC. 2. WHAT ARE OPEN WELLS OR MINES LEASE 
 FOR OPERATIONS. Where the owner of land leased it 
 for the production of oil and g"as and then conveyed the 
 premises subject to a life estate in himself, thereby 
 reducing himself to a life tenant, and gave the grantees 
 a fee in expectancy; and the terms of the lease were: 
 
 1. Williamson vs. Jones, 43 W. Va., 562; 27 S.E., 411; 38 L.R.A., 
 
 694; Bettman vs. Harness, 42 W. Va., 433; Marshall vs. 
 Mellon, 179 Pa. 371. 
 
 2. Williamson vs. Jones, 43 W. Va., 562; Marshall vs. Mellon, 179 
 
 Pa., 371. 
 
 3. Sayers vs. Hoskinson, 110 Pa., 473; Freer vs. Stotenbur, 36 
 
 Barb., 641. 
 
 4. 4 Kent Com., 73. 
 
42 Lawful Severance. 
 
 that the lessee should hold the lease for a period of five 
 years and as much longer period as oil and gas might be 
 produced, and the lessor was to receive one-eighth of the 
 product delivered in the pipe line; and the deed of con 
 veyance contained a provision, "that second party takes 
 the same subject to any lease for oil or gas made by the 
 first party or any sale of royalty for oil or gas made by 
 him, and the first party retains full control of said lands 
 in all respects and for all purposes during his lifetime;" 
 and the life tenant claimed the royalty due under the 
 lease, although the wells were not bored at the time of 
 the conveyance, the court decided that as long as the 
 land was lawfully leased to be opened at the time of the 
 conveyance and at a time when the owner had a right 
 to make such a lease, the wells are considered as opened 
 at the time the lease is executed and consequently the 
 grantor is entitled to the royalties accruing under the 
 lease. 1 So where a husband made a lease of coal lands 
 a number of years before his death, reserving as a roy- 
 alty one dollar per acre until mining operations were 
 begun and five cents per ton for each ton of coal pro- 
 duced and no operations were begun before his death, 
 "the act of opening the mine would, in such case, be 
 practically the act of the husband, viz., authorized by 
 him," and the mine was treated as opened at the death 
 of the husband so the widow was entitled to dower. 2 So 
 a husband is entitled to curtesy in the royalties in the 
 wife's separate estate when the wife makes a mining 
 lease during her lifetime though no mines were opened 
 until after the wife's death. 3 
 
 SEC. 3. LAWFUL SEVERANCE is MADE BY LEASING. 
 Oil or gas in place is land and goes with the inherit- 
 ance but the life tenant is seized of the immediate free- 
 hold estate, in possession, and which possession extends 
 from the surface to the center of the earth, so the whole 
 
 1. Koen vs. Bartlett, 41 W. Va., 559; 23 S.E., 664. 
 
 2. Priddy vs. Griffith, 150 111., 560; 37 N.E., 994. 
 
 3. Alderson vs. Alderson, 46 W. Va., 242; 33 S. E., 228. 
 
Open Wells. 43 
 
 corpus of the estate is in the life tenant. The rever- 
 sioner or remainderman has no right to the possession 
 of any part of the land and has no right to use or enjoy 
 any part of the estate since the life tenant has the 
 immediate freehold estate in possession and the sole 
 right to possess, use and enjoy the estate; so if oil or 
 gas wells are not opened at the time of the vesting of 
 the life estate the reversioner and remainderman have 
 no right to open them, and if wells are opened, the life 
 tenant has a right to use and enjoy them for his own 
 benefit for the wells are but an income or annual profits, 
 or, when an oil or gas lease is made, a lawful severance 
 takes place and a life tenant takes them because they 
 are but issues and profits and the life tenant is entitled 
 to the full enjoyment and use of the land and all profits 
 arising therefrom during the continuance of his life 
 estate. 1 When the wells are already opened at the time 
 of the vesting of the life estate, there is no question but 
 the oil produce is but a part of the income of the estate 
 and belongs to the life estate after the vesting of this 
 estate in possession. 2 
 
 SEC. 4. WHAT is CONSIDERED AS AN OPEN MINE 
 OR WELL. A mine is considered as opened when the 
 vein is penetrated and mineral taken therefrom, so the 
 sinking of a new opening to take minerals from the 
 same vein is not wasteland when a quarry is worked 
 by sections the stripping off of the surface to cut a new 
 section is legal; 4 and when a mine was opened in the 
 lifetime of the husband but discontinued, the wife has a 
 right to work it or receive the royalty by its being 
 worked; 5 and when the mines were opened for the pur- 
 
 1. Koen vs. Bartlett, 41 W. Va., 559; Bl. Com., 299, 309; Crouch 
 
 vs. Puryear, 1 Band. (Va.), 258; E ley's Appeal, 103 Pa., 
 307. 
 
 2. Woodburns Estate, 138 Pa., 606; 21 Atl., 16; Bedford's Ap- 
 
 peal, 126 Pa. 117; 17 Atl. 538. 
 
 3. Crouch vs. Puryear, 1 Rand. (Va.), 258. 
 
 4. Billings vs. Taylor, 10 Pick.', 460; 20 Am. Die., 533. 
 
 5. Priddy vs. Griffith, 150 111., 560; Gains vs. Green Pond Iron 
 
 Min. Co., 33 N. J., E., 603. 
 
44 Mining Lands. 
 
 pose of obtaining coal for fuel, at the time of the vest- 
 ing 1 of the life estate, they will be considered as opened 
 to the life tenant for the purpose of selling the coal; 1 
 and when the lessee was to pay rents such rents are 
 part of the income and go to the life tenant; 2 and when the 
 tenant for life is authorized to lease the lands, such ten- 
 ant may make a lease of the coal beneath the surface 
 though the mines were unopened when the estate was 
 acquired, where the coal is the principal income. 8 
 
 SEC. 5. PROFITS OUT OP LANDS HELD FOR MINING 
 PURPOSES. A tenant for life is entitled to share in the 
 profits of a mine where the land is held for mining pur- 
 poses, though such mines were not opened until after 
 the vesting of the estate. So when an owner, at the 
 time of his death was possessed of a tract of land as 
 tenant in common which was wholly valueless except 
 for mining purposes, and also was the owner as tenant 
 in common, under a reservation of all the mines and 
 minerals under an eighty acre tract conveyed; and, after 
 the estate was administered upon, the guardian of some 
 minor children of the deceased and the wife as general 
 guardian made a lease of the land under an order of the 
 Court for the purpose of developing the deposits of val- 
 uable iron ores under the land; and, on the question as 
 to the distribution of $2800, royalty derived from the 80 
 acre tract, the court awarded the widow one-third of the 
 royalty. The court held that the strict rules of the 
 common law did not apply to wild land fit only for min- 
 ing purposes; and as the statute, as well as the common 
 law, gives the wife the use of one-third of all the land 
 during life, she is entitled to dower in the only use that 
 
 1. Neelvs. Neel, 19 Pa., 323. 
 
 2. Rankin's App., ; 2 L. R. A., 432; Wentz's App., 106 
 
 Pa., 301; McClintoek vs. Dana, 106 Pa., 386; Reynols vs. 
 Hanna, (C. C. N D 0) 55 Fed. 783; Priddy vs. Griffith, 150 
 111., 560. 
 
 3. Rankin's App., Pa., ; 2 L. R. A., 432; Wentz's App., 106 
 
 Pa. 301; McClintoek vs. Dana, 106 Pa., 386; Willard vs. 
 Willard, 56 Pa., 119. 
 
Exhaustion of Wells. 45 
 
 can be made of the land. 1 So when a lease is made of 
 oil and gas lands, the royalties received take the place 
 of the real estate or the oil and gas taken from the earth 
 and when the life tenant leases the land, as trustee for 
 the remainderman and his own right as life tenant, the 
 life tenant during his life is entitled to the income 
 derived from the royalties. 8 These cases may be sus- 
 tained on the ground that the life tenant has a freehold 
 estate in the lands and that such life tenant is entitled 
 to the possession from the surface to the center; and 
 that the remainderman has no more right to operate 
 under the ground than upon it, so if the mines are 
 opened while two such estates exist, then the life tenant 
 is entitled to share in the proceeds of the estate. 8 The 
 widow, however, has been denied dower in mines opened 
 after the death of her husband when she joined in the 
 lease as guardian under an order of the court but it was 
 on the ground of estoppel. 4 
 
 SEC. 6. OPEN MINES MAY BE WORKED TO EXHAUS- 
 TION. The life tenant may work an open mine to ex- 
 haustion if there is no restriction in the grant by which 
 the estate is acquired, as when the rights are acquired 
 under dower or curtesy, since the tenant for life has the 
 usufruct of the whole land and takes the whole profit 
 that can be derived from it by following out the use 
 made of the land by the person from whom the estate 
 was acquired. 6 The use is not limited to the use made 
 of the mines by the person who transferred the estate, 
 as when the donor used coal only for fuel, the donee for 
 life may use the coal to sell. 6 And should the tenant 
 for life exhaust the mines the tenant in remainder can 
 
 1. Seager vs. McCabe, 92 Mich., 186. 
 
 2. Blakely vs. Marshall, 174 Pa. 425; 34 Atl. 564; Wilson vs. 
 
 Hughes,43W.Va.,826;28S.E.,781; S.E. ;39 L.E.A., 292. 
 
 3. Koen vs. Bartlett, 41 W. Va., 559. 
 
 4. Dickim vs. Hamer, 1 Drew & S., 284. 
 
 5. Koen vs. Bartlett, 41 W. Va., 559; Rankin's App., Pa., ; 
 
 2 L. R. A., 429; Shoemaker's App., 106. Pa., 392. 
 
 6. Neelvs. Neel, 19 Pa., 323. 
 
46 Corpus of Estate Cannot be Destroyed. 
 
 not interfere so long" as the life tenant uses the estate as 
 the estate came to the life tenant; 1 and all the life ten- 
 ant is bound to do is to yield up the premises in the con- 
 dition the lands may be after his right to use the lands 
 has expired. 2 
 
 SEC. 7. A TENANT FOR LIFE HAS No RIGHT TO 
 DESTROY THE CORPUS OF THE ESTATE. A tenant for 
 life has no right to open oil and gas wells which were 
 not opened before the life estate vested in such life ten- 
 ant. 8 So when a tenant for life makes a lease for the 
 production of oil and gas, reserving one-eighth of the 
 product as a royalty, the lease is void, since the tenant 
 would be guilty of waste if the life tenant would pro- 
 duce oil and gas from wells unopened before the estate 
 vested, so the tenant cannot authorize something to be 
 done which the tenant cannot do, and which is forbid- 
 den by law. 4 So where, on petition, an infant's estate 
 in remainder containing oil and gas was sold and the 
 infant was to receive a certain portion of the royalty, 
 and the life tenant another portion, the Court held that 
 a sale of the oil and gas in the lands by lease was, in ef- 
 fect, a disposition of the corpus of the estate; and as the 
 oil and gas wells were not opened when the life tenant 
 acquired the estate, the life tenant could not consume 
 any portion of the corpus of the estate, but since the 
 life tenant was entitled to the entire possession of the 
 land during life, so the life tenant was entitled to the 
 income derived from the royalties received from the 
 lands for life and the remainderman to the principal. 5 
 So when a tenant for life bores oil and gas wells on the 
 
 1. Irwin vs. Covode, 24 Pa., 162. 
 
 2. Holman's App., 24 Pa., 174. ' 
 
 3. Marshall vs. Mellon, 179 Pa., 371; 35 L. R. A., 816; William- 
 
 son vs. Jones, 43 W. Va., 562; 38 L. R. A., 694; Wilson vs. 
 Hughes, 43 W. Va., 826; 39 L. R. A., 292. 
 
 4. Marshall vs. Mellon, 179 Pa., 371; Marshall vs. Mellon, 17 Pa. 
 
 Co. Ct.,366; Kenton Gas & E. Co. vs. Dorsey, 17 Ohio C C, 
 101. 
 
 5. Wilson vs. Hughes, 43 W. Va., 826; 39 L. R. A., 292; Blakely 
 
 vs. Marshall, 174 Pa., 425. 
 
Waste by Life Tenant. 47 
 
 land and extracts these products, the life tenant was 
 held liable in an action of waste at common law under 
 the English statute of Marlbridge. 1 
 
 SEC. 8. WELL, BORED; KNOWLEDGE OF THE REMAIN- 
 DERMAN. If a life tenant makes a lease of land for the 
 purpose of boring- for oil and gas, such lease is void as 
 the tenant for life cannot authorize the commission of 
 waste, but where the wells are drilled at great expense 
 and some of the tenants in remainder have knowledge 
 of that fact and where the lessee spent considerable 
 money in sinking a well and the remainderman would 
 not be benefited by having the well closed, the lessee 
 will be entitled to be compensated for the improvements 
 made on the premises and will have to pay the remain- 
 derman a fair royalty for the gas or oil taken thereafter 
 from the premises and may continue operations. 8 
 
 SEC. 9. ACCOUNTING WHEN TENANT FOR LIFE COM- 
 MITS WASTE. Where a tenant for life and who was 
 tenant in fee of three-sevenths interest, bores oil wells 
 on the land under a hostile claim of title to the whole 
 premises and converts the oil to his own use, the tenant 
 for life is guilty of waste and, in an accounting, is not 
 entitled to settle with the other remaindermen on the 
 basis of an annual rental but must account on the basis 
 ot rents and profits. 3 
 
 The tenant is not allowed to have the proportion of 
 the proceeds of the oil which belong to the other tenants 
 in common invested and the proceeds of the income paid 
 to him for life because this can be done only when the 
 extraction of the oil was not wrongful, but the remain- 
 dermen are entitled to their share at once. 4 
 
 So, also, a tenant for life who is also tenant in com- 
 mon and who ousts his co-tenants in remainder and 
 
 1. Williamson vs. Jones, 43 W. Va., 562; 38 L. E. A., 694. 
 
 2. Gerkins vs. Kentucky Salt Co., 100 Ky., 734-39, S. W., 444; 
 
 Rev., 36; S. W., 1. 
 
 3. Williamson vs Jones, 43 W. Va., 562. 
 
 4. Williamson vs. Jones, 43 W. Va., 562; Williams vs. Duke Bol- 
 
 ton, 1 Cox Ch. Cas., 72; 3 P. Wms., 268. 
 
48 Community Property. 
 
 claims the entire title and has notice of their claim is 
 not entitled to compensation for improvements made on 
 the land under a statute allowing compensation to a 
 person who makes improvements on land under the 
 belief that such person has a good title. l But when the 
 remaindermen go into a court of equity asking- for relief 
 and for an accounting, for the oil extracted from the 
 land, such tenant will be allowed all costs of production, 
 including the cost of boring wells which are productive, 
 as a set-off against rents and profits. 2 
 
 SEC. 10. COMMUNITY PROPERTY. The wife is not 
 entitled to the possession of property acquired during 
 marriage after the husband's death where the claim was 
 but a mere possessory right which the United States 
 laws give the locator of a mining claim. 8 However, a 
 claim not patented is real estate, which will be commu- 
 nity property, if acquired during marriage, but if the 
 locator disposes of his interest and the assignee takes 
 out a patent, the locator's right merges and is lost and 
 the widow has no claim on the property after the death 
 of the husband, 4 because a conveyance is considered an 
 abandonment of the locator's claim; 6 but it has been 
 held in Idaho that mining property acquired under the 
 laws of the United States by a husband who lived in the 
 state is community property, though the wife was never 
 a resident of the state. 6 
 
 SEC. 11. PROTECTION OF ESTATE OP REMAINDER- 
 MEN FROM DRAINAGE THROUGH OTHER LANDS. The 
 remaindermen or a tenant in common has an undoubted 
 
 1. Williamson vs. Jones 43 W. Va., 562; Foster vs. Weaver 118; 
 
 Pa., 42; Ward vs. Ward, 40 W. Va., 611; 29 L. R. A., 449. 
 
 2. Williamson vs. Jones, 43 W. Va., 562; Eflnger vs. Hall, 81 
 
 Va. 103; 3 Pom. Eq. 1241. 
 
 3. Phoenix Mining aud Mill Co. vs. Scott, 20 Wash., 48-54 Pac., 
 
 777. 
 
 4. Black vs. Elkhorn Min. Co., 49 Fed. Rept., 549. 
 
 5. Black vs. Elkhorn Min. Co., 163 IJ. S., 445; 7 U. S. App., 393. 
 
 6. Jacobson vs. Bunker Hill & S. Min. Co., 2 Idaho, 863; 28 Pac. 
 
 396. 
 
Protection of Estates in Remainder. 49 
 
 right to ask the aid of a court of equity to permit such 
 remainderman or tenant in common to bore for oil and 
 gas to prevent a destruction of the estate by being 
 drained by wells on other lands. On a question involv- 
 ing the wrongful extraction of oil by a life tenant and 
 who was also a tenant in common, a court of equity was 
 held to have such a power. 1 The principle above an- 
 nounced finds support in two late cases though they do not 
 involve oil or gas rights, yet the principles are appli- 
 cable. 2 The rule in such cases is, that whenever a right, 
 which is recognized by law, exists, a court of equity has 
 jurisdiction to protect that right, so when a person gives 
 a life estate to one, and a remainder contingent or vested 
 to others, a court of equity has a right to sell or dispose 
 of the property to prevent the destruction of the remain- 
 der, even though the instrument which creates the 
 estate provides that no sale or disposition shall be made 
 of the estate during the continuance of the life estate. 8 
 The power of a court of equity to furnish an adequate 
 remedy in the event of danger of a destruction of the 
 remainder is undoubted, even though the persons who 
 are to receive the property are yet unascertained, be- 
 cause such a proceeding is one in rem; and in such a case 
 the scheme of the creator of the estate may be invaded, 
 if it becomes necessary to preserve the estate from de- 
 struction; but, in such a case, the preservation of the 
 entire property must be the aim of the court when it 
 assumes special jurisdiction. 4 If a sale is made of prop- 
 erty in such an event, the proceeds must be preserved to 
 be paid over to the contingent remaindermen at the 
 time they would receive the estate in remainder, if not 
 sold; and the income from the proceeds to be paid to the 
 life tenant during life. 6 
 
 1. Williamson vs. Jones, 43 W. Va., 562; 38 L. R. A., 700. 
 
 2. Gavin vs. Curtin, 171 111., 640: Ruggles vs. Tyson, 104 
 
 Wis., 500; 79 N. W., 766; 81 N. W., 848; Contra ex parte 
 Yancy, 124 N. C., 151. 
 
 3. Gavin vs. Curtin, 171 111., 640. 
 
 4. Ruggels vs. Tyson, 104 Wis., 500. 
 
 5. Gavin vs. Curtin, 171 111., 640; Ruggels vs. Tyson, 104 Wis., 
 
 500. 
 
TENANTS IN COMMON. 
 
 CHAPTER V. 
 
 SEC. 1. ESTATES OF TENANTS IN COMMON. The 
 common law doctrine is, that tenants in common are 
 seized of each and every part of the estate, but it is not 
 in the power of one to convey the whole of the estate or 
 the whole of a distinct portion of it, or give a valid 
 release for injuries done thereto; 1 and a deed made by 
 one co-tenant for his share has been held by some courts 
 invalid as against the other co-tenants. 2 One co-tenant 
 cannot lawfully commit waste, or destroy the common 
 property or do any act which shall be a permanent 
 injury to the estate. 8 One tenant in common cannot 
 make a lease of the land for the mining" of coal when the 
 mines are not open, because that would be a destruction 
 of the estate; 4 nor can such a tenant make a lease to 
 take ore from the lands, 5 nor can one tenant in common 
 take petroleum from the lands without being" guilty of 
 waste." 
 
 SEC. 2. CO-TENANTS CAN NOT GIVE LEASE TO EX- 
 TRACT THE MINERALS. Where one tenant in common 
 made a lease for the purpose of taking coal from the 
 
 1. Murray vs. Honerty, 70 111., 320. 
 
 2. Marshall vs. Trumball, 28 Conn., 183; Hutchinson vs. Charr, 
 
 39 Maine, 513; 4 Kent's Com., 368. 
 
 3. Murray vs. Honerty, 70 111., 320; McLellan vs. Jenness, 43 Vt. 
 
 183; Agnew vs. Johnson, 17 Pa., 373; Lowe vs. Miller, 3 
 Gratt 205. 
 
 4. Murray vs. Honerty, 70 111., 320. 
 
 5. Omaha & Grant Smelting & Ref. Co. vs. Tabor, 13 Colo., 41; 5 
 
 L.R. A.,236. 
 
 6. Williamson vs. Jones, 43 W. Va., 562; 38 L. R. A., 694. 
 
Tenants as Partners. 51 
 
 lands and the lessee entered and stripped off the surface 
 and took coal from the lands, the lessee was guilty of a 
 trespass and the commission of waste, because one ten- 
 ant in common could not do this act, so the tenant could 
 not authorize any other person to take coal. 1 So where 
 one tenant in common grants a license to a third person 
 to enter and remove precious ores from the common es- 
 tate, such license does not extend further than it was 
 within the power of the person who gave the license, 
 and if the tenant took the ores himself he could not jus- 
 tify because he is tenant in common, as the other ten- 
 ants in common could have the same action against the 
 tenant as they could have against a stranger and that 
 an action on the case may be maintained by one tenant 
 in common against another for the misuse of property, 
 though not amounting to the total destruction of the 
 property. 2 
 
 SEC. 3. TENANTS IN COMMON AS PARTNERS. NOT 
 LIABLE AS SUCH. Tenants in common are jointly seized 
 of the entire estate and the right to enter and possess 
 the estate is co-equal in all and each is entitled to occu- 
 py their share of the entire premises and at common law 
 joint tenants and tenants in common are regarded as 
 partners. 3 So if one tenant in common or joint tenant 
 fails to occupy the premises without fault of the other 
 co-tenants, it furnishes no ground for an action at com- 
 mon law, 4 since such possession results from the nature 
 of the estate. 6 Prom these rules it results that if one 
 tenant in common of an oil lease exclude his co-tenant, 
 the tenant commits a wrong because each tenant is 
 entitled to the entire possession, and where such exclu. 
 
 1. Murray vs. Honerty, 70 111., 320. 
 
 2. Omaha & Grant Smelting & Ref . Co. vs. Tabor, 13 Colo., 41; 5 
 
 L. R. A., 236; McLellan vs. Jenness, 43 Vt., 183; Agnew vs. 
 Johnson, 17 Pa., 373; Lowe vs. Miller, 3 Gratt, 202. 
 
 3. Hamilton vs. Conine, 28 Md., 640; Isreal vs. Isreal, 30 Md., 
 
 120; Crane vs. Waggoner, 27 Ind., 52. 
 
 4. Boyer vs. Holmes, 6 Gray, 118; Tyner vs. Finner, 4 La., 469. 
 
 5. Akin vs. Jefferson, 65 Tex., 137. 
 
52 Dealings Between Tenants. 
 
 sion is tortuous, the tenant excluded is entitled to recov- 
 er the value of the oil in the tanks without deducting 
 the expense of production. 1 Although tenants in com- 
 mon and joint tenants are looked upon as partners, yet 
 the liabilities between them are not the same as part- 
 ners, so where co-tenants own oil property and they 
 agree to excavate for oil and each paying expenses ac. 
 cording to the estate held by each and the production to 
 be divided the same way, the agreement does not make 
 them partners; 8 nor does any presumption arise that 
 they are partners simply because they are tenants in 
 common. 3 
 
 SEC. 4. DEALINGS BETWEEN TENANTS IN COMMON. 
 OWNER OF THE SURFACE AND THE MINERAL. One ten- 
 ant in common holds his title independent of his co-ten- 
 ants and there is no community of interests between 
 them as in the case of partnerships; so, when two ten- 
 ants in common hold an oil and gas lease and one tenant 
 purchases the interest of the other, the purchaser is not 
 bound to disclose to the vendor that oil has been discov- 
 ered in lands near by in which the vendor has no inter- 
 est; 4 nor is a trust and confidence created between them 
 simply because the tenant who is the purchaser has a 
 mortgage on the interest of his co-tenant to secure him 
 against loss because of a guaranty to a third person and 
 such purchaser is not bound to disclose the productive- 
 ness of lands in the neighborhood. 5 
 
 A co-tenancy does not exist between the owner of 
 the surface and the owner of the mineral when there has 
 been a severance, so the tenant of the surface may ac- 
 quire an outstanding title to the minerals; 6 and the own- 
 er of the mineral rights under a reservation in a deed may 
 
 1. Foster vs. Weaver, 118 Pa., 42; 12 Alt., 313. 
 
 2. Butler Savings Bank vs. Osborne, 159 Pa., 10; 28 Atl., 163. 
 
 3. Neill vs. Shamburg, 158 Pa., 263; 27 Atl., 992. 
 
 4. Neill vs. Shamburg, 158 Pa., 263; 27 Atl., 992. 
 
 5. Neill vs. Shamburg, 158 Pa., 263; 27 Alt., 992. 
 
 6. Virginia Coal & Iron Co. vs. Kelley, 93 Va., 332; 24 S. E., 1020. 
 
Acts of One Co Tenant Binding Another. 53 
 
 purchase the title of the surface owner at a tax sale and 
 thus acquire the whole title by such purchase. 1 
 
 SEC. 5. ONE CO-TENANT BOUND BY THE ACTS OF 
 ANOTHER IN SOME CASES. Where it is necessary for 
 the preservation of the leasehold interest that certain 
 work should be done on the leasehold premises in order 
 that the same may be preserved, one tenant in common 
 is bound for his proportion of the expenses incurred in 
 doing* such necessary work. 2 So where two joint-tenants 
 make a lease one may accept the surrender so as to re- 
 lieve the lessee from the payment of rent. 3 So also when 
 joint lessees own a lease for the production of oil and 
 one of them surrenders the lease with the knowledge 
 and consent of the others, and with the intention of sur- 
 rendering 1 the lease as to all, such lessees will be bound 
 by the surrender. 4 But a tenant in common is not bound 
 to pay for labor performed in pumping an oil well, 
 where such tenant offered to furnish a capable, compe- 
 tent person to do the work, and the co-tenants refused to 
 accept the services of such person or permit him to do 
 the work, under a statute which provides that any per- 
 son performing labor of any kind in pumping an oil well 
 may recover from any tenant in common, provided, how- 
 ever, that no tenant in common shall be required to pay 
 any share of the expense of operations commenced and 
 carried on without his authority and consent. 6 
 
 SEC. 6. WHEN CO-TENANTS ARE LIABLE AS PART- 
 NERS. Where tenants in common own lands and also oil 
 wells, fixtures and machinery on the premises, a part- 
 nership is not created between them where they all 
 agree that another well be sunk on the land and each 
 
 1. Hutchinson vs. Kline, Pa., ; 49 Atl., 312. 
 
 2. Beck vs. O'Connor, 21 Mont., 109; 53 Pac. 94; See also Pren- 
 
 tice vs. Jansen, 79 N. Y., 478; Jenkins vs. Jenkins, N. 
 J. Eq., ; 5 Atl., 134; Eads vs. Rether ford, 114 Ind., 273; 16 
 N.E., 587; Holbrook vs. Harrington, Cal., ; 36 Pac. 365. 
 
 3. Churchill vs. Lammers, 60 Mo. App., 244. 
 
 4. Hooks vs. Forst, 165 Pa., 238; 30 Atl., 846. 
 
 5. Murtland vs. Callahan, 2 Pa. Super. Ct., 345. 
 
54 When Go- Tenants are Partners. 
 
 one is to pay his share of the cost of sinking- the well 
 and that the product of the well would be divided in 
 proportion to the interest of each, although each tenant 
 must advance money for losses sustained, in case the 
 product of the well would not exceed the cost of produc- 
 tion, because the losses are to be sustained by each 
 tenant individually who is not bound to pay any part of 
 the other co-tenant's share of the expenses. Where the 
 parties are co-tenants, there must be a distinct and ex- 
 pressed agreement to change the relationship from a co- 
 tenancy to one of partnership. 1 So where tenants in 
 common hold a lease on land and one of them was to 
 drill for oil and the others should contribute to the cost 
 of drilling in proportion to the interest in the lease; and 
 the oil produced was to be turned over to a pipe line; 
 and the oil so delivered was to be credited in proportion 
 to the interest of each in the land, they are not partners 
 and the other co-tenants are not liable for the supplies 
 purchased by the tenant who drilled the well. 2 But 
 when a lease of oil and gas lands is made to parties as 
 co-tenants, and the co-tenants are required to sink wells 
 within a specified time, under a penalty of a forfeiture 
 of the lease, so as to prevent the land from being 
 drained through wells on other lands, because oil or gas 
 may be completely extracted from the lands through 
 wells on other lands, there is no reason or principle 
 why the co-tenants would not be chargeable for the nec- 
 essary work for the preservation of the estate, as it has 
 been held that when persons, their heirs, and assigns, 
 have been granted valuable privileges in lands, and such 
 grant is to them as tenants in common, and to fulfill 
 the purposes of the grant and to preserve the same from 
 forfeiture, some of the co-tenants expended money there- 
 on, the other co-tenant, who was a foreigner, was held 
 to be bound for his share under an implied consent;* 
 and it has been held that such authority exists in the 
 
 1. Dunham vs. Lovelock, 158 Pa., 197; 27 Atl., 990. 
 
 2. Taylor vs. Fried, 161 Pa., 53; 28 Atl., 993. 
 
 3. Haven vs. Mehlgarten, 19 111., 90. 
 
V" 
 
 Couvertion of Minerals by Co Tenants. 55 
 
 preservation of mines and one tenant has a lien for such 
 expenses on his co-tenants' interest; 1 and for the repairs 
 to a house where it is a common benefit.* 
 
 SEC. 7. LIABILITY OF ONE CO-TENANT FOR MIN- 
 ERALS TAKEN BY HIM MEASURE OF DAMAGES. It has 
 been held that where one co-tenant requests the other 
 co-tenants to join him in the production of oil and the 
 other co-tenants refuse, such tenant is liable only for 
 the customary royalty, 3 but when one co-tenant excludes 
 another co-tenant, and his acts are tortuous, the co-ten- 
 ant excluded is entitled to his share of the product 
 stored in tanks and the co-tenant who excluded him was 
 allowed nothing" for production. 4 So when a life tenant 
 who is also a tenant in common bores wells on the land 
 under the claim of absolute ownership, such tenant is a 
 trespasser and should not be allowed anything in a 
 court of law for the production of oil;' and where a 
 licensee wrongfully extracted minerals from lands be- 
 longing to co-tenants, it was held that the measure of 
 damages depended largely on the form of the action 
 brought to recover damages, and whether the action is 
 in replevin to recover the property severed, or for dam- 
 ages to the land itself, or for the conversion of a chat- 
 tel. 6 Where trover is brought the rule of damages is 
 and should be proper compensation for property taken 
 and converted; 7 and, in a court of equity, a co-tenant is 
 
 1. Beck vs. O'Connor, 21 Mont., 109; 53 Pac., 94. 
 
 2. Alexander vs. Ellison, 79 Ky., 148; Coffin vs. Heath, 6 Met., 76. 
 
 3. Schriber vs. National Transit Co. (C. P.), 12. Pa. Co. Ct., 657. 
 
 4. Foster vs. Weaver, 118 Pa., 42; 12 AtL, 313. 
 
 5. Williamson vs. Jones, 43 W. Va., 562; 27 S. E., 411. 
 
 6. Omaha & Grant Smelting and Refining Co. vs. Tabor, 13 Colo., 
 
 41; 5 L. R. A., 236; See also Martin vs Porter, 5 Mees. & 
 W., 352; Wild vs. Holt, 9 Mees. & W., 672; Morgan vs. 
 Powell, 3 Q. B., 78; Hilton vs. Woods, Q. R. 4 Eq., 432; 
 Maye vs. Tappin, 23 Cal., 306; Colemans App., 62 Pa., 252; 
 Forsythe vs. Wells, 41 Pa., 291; Kier vs. Peterson, 41 Pa., 
 357; Cushingvs. Longfellow, 26 Me., 306; Moody vs. Whit- 
 ney, 38 Me., 174. 
 
 7. Omaha & Grant Smelting & Ref. Co. vs Tabor, 13 Colo., 41. 
 
56 Injunction by Co- Tenant. 
 
 allowed the cost of production of oil; 1 and where a ten- 
 ant in common was in sole possession and bored wells 
 on the premises the tenant was charged with rents and 
 profits and not with rental, but was allowed for expenses 
 and improvements. 8 And where the salt wells were opened 
 before the co-tenancy arose between the parties, and one 
 tenant works them, the tenant was chargeable only with 
 a rental as the land was only used as it was when the 
 estate vested. 3 And the same rule applies where all 
 co-tenants open a mine and thereafter only one tenant 
 works it. 4 
 
 SEC. 8. INJUNCTION BY CO-TENANT LESSEE. 
 Where a person acquires a lease from several co-tenants 
 for boring for oil and gas though he can not bore for oil or 
 gas without the consent of all the co-tenants or all join- 
 ing in the lease, but the lessee has such an interest in 
 the land that the lessee may enjoin a trespasser from 
 sinking wells on the lands. 5 So when one tenant in 
 common sinks wells on the lands under a claim of own- 
 ership, and produces large quantities of oil, an injunc- 
 tion will lie to stay the commission of waste thereafter; 6 
 and an injunction will be granted to prevent waste 
 where infants are remaindermen and their title was not 
 divested by a judicial sale of the land because they were 
 not made parties under the belief that they were not 
 necessary parties, 7 but where the object of the proceed- 
 ings is to sell the infant co-tenants' interest, adult co- 
 tenants are not necessary parties, and such can not be 
 set up to defend an injunction proceeding to prevent 
 waste. 8 
 
 1. Williamson vs. Jones, 43 W. Va., 562; Ruffner vs. Lewis, 7 
 
 Leigh., 720; 30 Am. Dec., 513. 
 
 2. Early vs. Friend, 16 Gratt, 21-52; 78 Am. Dec., 649; McCord 
 
 vs. Oakland Quicksilver Min. Co., 64 Cal., 139. 
 
 3. Graham vs. Pierce, 19 Gratt, 28; 100 Am. Dec., 658. 
 
 4. Trees vs. Eclipse Oil Co., 47 W. Va., 107; 34 S. E., 933. 
 
 5. Williamson vs. Jones, 43 W. Va., 562; Williamson vs Jones, 39 
 
 W. Va.,231. 
 
 6. Williamson vs. Jones, 43 W. Va., 562. 
 
 7. Trees vs. Eclipse Oil Co., 47 W. Va., 107; 34 S. E., 933 
 
Damages for Severance of Minerals. 57 
 
 SEC. 9. SEVERANCE OF MINERALS BY Co TENANTS 
 AND OTHERS MEASURE OF DAMAGES. It is a well 
 established rule that when any part of realty is severed, 
 the part so severed becomes personal property and 
 belongs to the owner of the next vested estate of inher- 
 itance; 1 and the owner of severed chattel may seizejt 
 or bring- trover for its conversion, as it came from the 
 land, or bring an action of replevin or detinue or bring 
 an action of trespass. 2 In case of remainders the per- 
 son who is in being and would take if the previous estate 
 should come to an end will take them absolutely against 
 the wrongdoer. 3 So where a life tenant and who is also 
 tenant in common takes oil from the ground, the other 
 tenants in remainder and who are tenants in common, 
 may claim their portion of the oil at once, 4 because the 
 oil in the earth belongs to the owner of the fee, and 
 when unlawfully taken therefrom by a wrongdoer, the 
 title of such owner remains perfect and may pursue it 
 and reclaim it wherever he finds it. 5 And the purchaser 
 of ore from one who took the same from lands under a 
 license from a co-tenant is liable for its conversion the 
 same as the person who took it. 6 In an equitable action 
 to remove a cloud from the title, where the defendant 
 entered the land to mine coal under an honest but erro- 
 neous belief that he was owner, and mined coal and built 
 houses on the premises, the owner of the land was 
 entitled to recover the value of the coal in situ, but the 
 amount to be recovered should be reduced by the value 
 
 1. Williamson vs. Jones, 43 W, Va., 562; University vs. Tucker, 
 
 31 W. Va., 622; Whitfield vs. Bewit, 2 P. Wins., 240; I. 
 Lomax Digest, 56. 
 
 2. Williamson vs. Jones, 43 W. Va., 562; Omaha & Grant Smelt- 
 
 ing and Ref. Co. vs. Tabor, 13 Colo., 41. 
 
 3. Williamson vs. Jones, 43 \\^. Va., 562; Pigot vs. Bullock,! 
 
 Ves. Jr., 479. 
 
 4. Williamson vs. Jones, 43 W. Va., 562. 
 
 5. Hughes vs. United Pipe Lines, 119 N. Y., 423. 
 
 6. Omaha & Grant Smelting & Ref. Co. vs. Tabor, 13 Colo., 41; 
 
 See also Clark vs. Wells, 45 Vt., 4; Clark vs. Rideant, 39 
 N. H., 238; Carter vs. Kingman, 103 Mass., 517. 
 
58 Form of Action to Recover. 
 
 of the permanent improvements put on the land; 1 but in 
 trespass, where the digging was willful and wrongful, 
 the trespasser is not allowed anything for digging and 
 the measure of damages is the value of the coal when 
 separated and when it first becomes a chattel;* and for 
 oil, the value of the oil in the ground. 3 
 
 Title to the severed part of the real estate does not 
 change unless the change in form has been so great as to 
 change the identity and the owner may re-take the min- 
 erals into his possession without paying the trespasser for 
 his labor or money expended. * So standing trees cut into 
 cord wood may be reclaimed by the true owner 5 and the 
 owner of the land is entitled to retake logs cut on his 
 land by a trespasser and transported to a distant place 8 
 and the title does not change by changing timber to 
 charcoal, 7 and to coal which is wrongfully severed the 
 title does not change. 8 
 
 SEC. 10. REPLEVIN, TROVER, TRESPASS de bonis 
 AND TRESPASS quare clausum AND STATUTORY ACTIONS 
 FOR PROPERTY WRONGFULLY SEVERED FROM THE 
 REALTY. Replevin will lie for boards made from the 
 trees by the owner of the soil against a trespasser; 9 and 
 also made into cord wood, 10 and where the logs are 
 
 1. Ross vs. Scott, 15 Lea, (Tenn) 489. 
 
 2. McLean County Coal Co. vs. Lennon, 91 111., 561; Same vs. 
 
 Long, 81 111, 359; Morgan vs. Powell, 43 Eng. Com. L., 734; 
 Martin vs. Porter, 5 Mees. & W. 302; Wild vs. Holt, 9 
 Mees. & W., 672; Berlin Coal Co. vs. Cox, 39 Md., 1; Sunny- 
 side Coal and Coke Co.vs. Reitz, Ind. App., ; 39 N.E., 
 541; Also 14 Ind., App., 487; 43 N. E., 46. 
 
 3. Dyke vs. National Transit Co., 22 App. Div., 360. 
 
 4. Busch vs. Fisher, 89 Mich., 200; Gates, vs. Rifle Boom Co., 70 
 
 Mich, 316: Illinois & St. Louis Ry. Co. vs. Ogle, 82 111., 627. 
 
 5. Isle Royal Min. Co. vs. Hertin, 37 Mich., 332. 
 
 6. Gaskins vs Davis, 115 N. .C, 85. 
 
 7. Curtis vs. Groat, 6 Johns, 168- 5 Am. Dec., 204. 
 
 8. Robertson vs. Jones, 71 111., 405; Sunnyside Coal & Coke. Co. 
 
 vs. Reitz, Ind. App., ; 39 N. E., 541. 
 
 9. Davis vs Easley, 13 111., 192. 
 
 10. Robertson vs. Jones, 71 111., 405. 
 
Trover for Minerals Severed. 59 
 
 changed into lumber, the lumber may be recovered in an 
 action in replevin if found, and where the boards cannot 
 be recovered, the value of the boards, less the labor 
 expended on them which enhanced their value; 1 and 
 where the timber was cut by mistake the labor or money 
 expended may be deducted in an action of replevin, but 
 when the trespass was intentional, the trespasser will 
 not be allowed anything 1 for the increased value; 2 and 
 if the lumber has been transported to a distance, the 
 owner may replevin the lumber where found without 
 any compensation for the cutting 1 and transportation, 3 
 and this is also the rule where timber has been cut on 
 government lands, 4 but replevin will not lie for timber 
 severed by a person in adverse possession of the land. 5 
 Trover will lie for the wrongful severance of miner- 
 als and the measure of damages should be the value of 
 the chattel as such when first severed from the realty 
 and becoming a chattel whether the person was a tres- 
 passer or not. 6 This rule finds support in many states; T 
 and the same rule has been held applicable to timber 
 cut from land 8 and this is especially the rule where the 
 timber was innocently cut; 9 although some courts fix 
 the value at the time of removal. 10 Where the value of 
 
 1. Single vs. Schneider, 24 Wis., 299. 
 
 2. Heard vs. James, 49 Miss., 245; Herdic vs. Young, 55 Pa., 176. 
 
 3. Gaskins vs. Davis, 115 N. C., 85. 
 
 4. Bly vs. United States, 4 Dill., 467. 
 
 5. Anderson vs. Kapler, 34 111., 436. 
 
 6. Omaha & Grant Smelting & Eef. Co. vs. Tabor, 13 Colo., 41; 5 
 
 L. B. A., 236. 
 
 7. Oak Ridge Coal Co. vs. Rogers., 108 Pa., 147-52; Colemans 
 
 App., 62 Pa., 252; Ross vs. Scott, 13 Lea., 479-8; Chamber- 
 lain vs. Collison, 45 la., 429; Morgan vs. Powell, 3 Q. B., 
 278; Stockbridge Iron Co. vs. C. Iron Works, 102 Mass., 80; 
 Maye vs. Tappin, 23 Cal., 306. 
 
 8. Gates vs. Rifle Boom Co., 70 Mich., 316. 
 
 9. Ayers vs. Hubbard, 57 Mich., 322; Gates vs. Rifle Boom Co., 
 
 70 Mich., 316; Whitney vs. Huntington, 37 Minn., 197; 
 Beede vs. Lamphrey, 64 N. H., 510; Tilden vs. Johnson, 52 
 Vt., 628. 
 10. Skinner vs. Pinney, 19 Fla., 48. 
 
60 Trover for Minerals Severed. 
 
 the labor is much more than the value of the property, 
 the value of such labor must be allowed in trover when 
 the severance was made by mistake. * In trover, if the 
 taking" was unintentional and was done by mistake, the 
 value of the property at the time of conversion with an 
 allowance for the labor and expenses, but if the conver- 
 sion was willful and an intentional trespass on the pub- 
 lic domain, the value of the property at the time a 
 demand is made is the true measure of damages; 2 but 
 the damages cannot exceed the value at the time and 
 place of sale where they have been disposed of. 3 And 
 when an innocent person was sued in trover the enhanced 
 value on account of the labor on them by the wrongdoer 
 cannot be recovered; 4 and when a person dispossess the 
 true owner, trover will lie against such person or the 
 person to whom he may sell the land or against the pur- 
 chaser of the severed property; 6 but the law has also 
 been held otherwise* and it has also been held that trover 
 would not lie where a person made a lease of salt wells 
 and the lessee extracted petroleum from the salt well 
 and converted the petroleum to his own use. 7 In tres- 
 pass de bonis non the value of the property when severed 
 and the same rule applies when the severance was not 
 malicious, though willful, 8 and the damages to be re- 
 
 1. Winchester vs. Craig, 33 Mich., 206. 
 
 2. The E. E. Bolles Wooden Ware Co. vs. U. S., 106 U. S., 432; 
 
 U. S. vs. Williams, 18 Fed., 475; Ely vs. United States, 4 
 Dill., 467; See also Shepard vs. Pettit, 30 Minn., 481. 
 
 3. Greeley vs. Stiltson, 27 Mich., 153; Ward vs. Carson Eiver 
 
 Wood Co., 13 Nev., 44. 
 
 4. Lake Shore & M. S. Ry. vs. Hutchins, 32 Ohio St., 571. 
 Parker vs. W & T. Ry. Co., 81 Ga., 387. 
 
 5. Alliance Trust Co. vs. Nettelton Hardware Co., 74 Miss., 584- 
 
 36 L. R. A., 155; Morgan vs. Varick, 8 Wed., 587; Trubee 
 vs. Miller, 48 Conn., 347; Green vs. Biddle, 8 Wheat. (U. 
 S.),75. 
 
 6. Anderson vs. Hapler, 34 111., 436; Brothers vs. Hurdle, 10 
 
 Ired. L., 490, 51 Am. Dec., 400. 
 
 7. Kier vs. Peterson, 41 Pa., 357. 
 
 8. Gushing vs. Longsellow, 26 Me., 306; Coxe vs. England, 65 
 
 Pa., 222; Bennett vs. Thompson, 35 N. C., 148. 
 Single vs. Schneider, 30 Wis., 571. 
 
Partition of Oil and Gas Rights. 61 
 
 covered may be the best price which could be obtained 
 in the market after the severance until the time of 
 bringing suit, 1 and where the trespass was willful or 
 through gross negligence, damages may be allowed to 
 prevent a repetition of the trespass. 2 
 
 In trespass quare clausum the value of the property^ 
 and the diminished value of the land is the measure of 
 damages in some cases, 3 and also interest. 4 
 
 The rule of damages is sometimes stated to be the 
 value of the property if the land is not damaged 5 and 
 the increased value of the property by labor expended 
 on it is not allowed; 6 and where the estate is in re- 
 mainder, the value of the reversion, with or without 
 the property, is a proper way to fix the damages, 7 and 
 where the property is taken under a bona fide belief of 
 ownership, the value of the property before severance 
 only can be recovered. 8 
 
 Where the action is statutory the measure of dam- 
 ages is the same as at common law unless the statute 
 provides otherwise, 9 and in such cases the highest 
 market value. 10 A lessee of land for the production of 
 oil is not liable for the value of gas which flows from 
 the oil well and is confined and used by the lessee. 11 
 
 SEC. 11. PARTITION PARTITION OF LANDS HELD 
 IN CO-TENANCY. The owner in fee simple of lands may 
 have partition thereof when they, the co-tenants, are 
 
 1. Webster vs. Moe, 35 Wis., 75. 
 
 2. Kolb vs. Bankhead, 18 Tex., 232. 
 
 3. Beede vs. Lamphrey, 64 N. H., 510; Miller vs. Wellman, 75 
 
 Mich., 353. 
 
 4. Longfellow vs. Quimby, 33 Me., 458. 
 
 5. Thompson vs. Moiles,46Mich.,42; Striegelvs.Moore,55Ia., 88. 
 
 6. Foote vs. Merrill, 54 N. H., 494. 
 
 7. Hoxsie vs. Empire Lumber Co., 41 Minn., 541. 
 
 8. Van Deusen vs. Young, 29 N. J. L., 9. 
 
 9. Skeelesvs. Starrett, 57 Mich., 350; Knissley vs. Hire, 2 Ind. 
 
 App., 86. 
 
 10. Everett vs. Gores, 89 Wis., 421; 62 N. W., 82. 
 
 11. Wood County Petroleum Co. vs. W. Va. Transpt. Co., 28 W. 
 
 Va., 210. 
 
62 Partition of Oil and Gas Eights. 
 
 absolute owners. 1 The owner of a life estate and co- 
 tenants in remainder cannot have partition as the life 
 tenant and tenants in common in remainder are not joint 
 owners of the land, and a court of equity cannot acquire 
 jurisdiction to make partition on a petition of the life 
 tenant, and where such partition was made and the estate 
 divided, giving the life tenant part of the estate in fee, it 
 is void,* but where the life tenant is also a tenant in com- 
 mon, in remainder partition may be had by the life tenant 
 of the remainder, when the lands are chiefly valuable for 
 mineral purposes and where the ownership is in fee. 
 
 But when a partition is to be made of the oil rights 
 beneath the surface independent of the ownership of the 
 surface and the owners of the oil rights are co-tenants, 
 a very nice question arises as to the rights of the co- 
 owners. The right to bore for oil given to a person, his 
 heirs and assigns, has been held to be a mere incorpore- 
 al hereditament and such a right is indivisible, but if 
 the instrument of conveyance provides that the grantee 
 or grantees may transfer the whole, or any part of the 
 right conveyed, the incorporeal right becomes divisible 
 by the contract of the parties. 4 Many of the late cases 
 hold that no person has an ownership which is absolute 
 in oil and gas, though the oil and gas may be part and 
 parcel of his land, but the extent of such an owner's 
 right extends only to the privilege of boring for the oil 
 and gas and the protection of the land against trespass- 
 ers. The rule is the same whether the person is the 
 owner of the fee; or the right to take oil and gas is given 
 by lease; or the right is reserved in an instrument of 
 conveyance. B 
 
 1. Smith vs. Runnels, 97 la., 55; 65 N. W., 1002. 
 
 2. Love vs. Blauw, 61 Kan., 496; 9 Pac., 1059; 48 L. R. A., 257. 
 
 3. Williamson vs. Jones, 43 W. Va., 562. 
 
 4. Funk vs. Haldeman, 53 Pa., 229. 
 
 5. Townsend vs. State, 147 Ind., 624; Indiana vs. Ohio Oil Co., 
 
 150 Ind., 21; Ohio Oil Co. vs. Indiana, 177 U. S., 190; Man- 
 ufacturers Gas & Oil Co. vs. Indiana Natural Gas & Oil 
 Co., 155 Ind., 461; 57 N. E., 912; 50 L. R. A., 768; Wood 
 County Petroleum Co. vs. W. Va. Transportation Co., 28 
 W. Va., 210; 57 Am. Rep., 654; Shepherd vs. McCalmont 
 Oil Co., 38 Hun., 37; 7 Contra. Warren vs. Westerbrook 
 Mfg. Co., 88 Me., 58; 35 L. R. A., 388. 
 
Partition of Oil and Gas Eights. 83 
 
 So the right to take oil or gas from lands is but a 
 mere incorporeal hereditament and consequently when 
 the court entertained a bill for partition of oil and gas 
 beneath the surface and independent of the surface 
 such a partition is void because they are incapable of 
 division or allotment. 1 The same rule has been held 
 to apply to a partition of waters independent of the soil 
 over which they flow. ' The rights of the owner of oil 
 and gas lands to the oil and gas beneath the surface are 
 somewhat similar to those of waters flowing through his 
 lands. There is no property in the waters of a running 
 stream, but the owner of the land over which the stream 
 flows has, as incident to his ownership of the land, a 
 property right in the flow of the water, or, in other 
 words, he has a usufruct in the water while the water 
 passes his land; 8 but the property rights in the water 
 are indivisible and proprietors in common must use it 
 as an entire stream. 4 The same rules apply to under- 
 ground channels as apply to surface streams. In them 
 the proprietary rights are no greater than streams flow- 
 ing on the surface, hence the water thus taken from a 
 well cannot be used for extraordinary purposes and an- 
 other proprietor's well which has been fed by the same 
 stream be rendered worthless and he may enjoin the other 
 from using the water in such a manner/ Each proprietor 
 has an equal right to the common property and the same 
 applies to oil and natural gas for the state or a private 
 person who has oil and gas wells within the territory has 
 a right to enjoin the waste of oil or gas; 6 or the use of 
 
 1. Hall vs. Vernon, 47 W. Va., 297; 34 S. E., 764; 49 L.R.A., 464. 
 
 2. McGilvrey vs. Evans, 27 Cal.. 542; Brown vs. Cooper, 98 la., 
 
 444; 33 L. R. A., 61. 
 
 3. Druley vs. Adam, 102 111., 193; Tyler vs. Wilkinson, 4 Mason, 
 
 400; Willis vs. Perry, 92 la., 297; 26 L. R. A., 124. 
 
 4. Plumleigh vs. Dawson, 1 Gilman (111.), 552; Canal Trustees 
 
 vs. Haven, 11 111., 554; Ward vs. Ward, 3 Exch., 748; 
 Webb vs. Portland Mfg. Co., 3 Sumner 189; Vanderbergh 
 vs. Van Bergen, 13 Johns., 212. 
 
 5. Willis vs. Perry, 92 la., 297; 26 L. R. A., 124. 
 
 6. Ohio Oil Co. vs. Ind., 177 U. S., 190; Ind. vs. Ohio Oil Co., 150 
 
 Ind.,21. 
 
64 Partition of Oil and Gas Eights. 
 
 extraordinary means to take them from the earth. 1 So 
 with oil and gas where they are held in cotenancy, all 
 tenants have a right to bore for oil and gas, but no one has 
 a separate right and when the separate right does not 
 exist there is nothing to partition." 
 
 The right to partition when the minerals are solid has 
 been recognized; 3 but such a right has also been denied 
 even when the mines are open, 4 and the only right the 
 court has is to order a sale. 8 The parties who hold as 
 co-tenants may agree that no partition shall be made, or 
 the instrument which gives title may provide that no 
 partition shall be made and such a provision is binding. 6 
 
 1. Manufacturers Gas & Oil Co. vs. Indiana Nat. Gas Co., 155 
 
 Ind.,461;57N. E., 912. 
 
 2. Hall vs. Vernon, 47 W. Va., 297. 
 
 3. Ames vs. Ames, 160 111., 600-1; Boyston vs. Miller, (U. S. 
 
 C. D. Nev.) 76 Fed., 50; Wilson vs. Boyle, 95 Tenn., 290; 
 32 S. W., 386; Jones vs. Wagner, 66 Pa. St., 429; Merritt 
 vs. Judd, 14 Cal., 60; Hughes vs. Devlin, 23 Cal., 502; Ran- 
 kins Appeal, 2 L. R. A., 429. 
 
 4. Lenferns vs. Henke, 73 111., 405; Connant vs. Smith, 1 Aik., 67; 
 
 Adams vs. Briggs, 7 Cush., 361. 
 
 5. Linferns vs. Henke, 73 111., 405; Hall vs. Vernon, supra; Smith 
 
 vs. Cooley, 65 Cal., 46; 2 Pac., 880; Kemble vs. Kemble, 44 
 N. J. Eq.,454; HAtl.,733. 
 
 6. Hunt vs. Wright, 47 N. H., 396; Coleman vs. Coleman, 19 Pa., 
 
 100; 57 Am. Dec., 641; Cannant vs. Smith, 1 Aiken, 67; 57 
 Am. Dec., 641; Eberts vs. Fisher, 54 Mich., 294; Peck vs. 
 Cardwell, 2 Beav., 137; Contra Haenssler vs. Mo. Iron Co., 
 110 Mo., 188; 19 S. W., 75; 16 L. R. A., 220. 
 
Limitation Laws, Adverse Possession. 
 
 CHAPTER VI. 
 
 SECTION 1. NATURE OP OIL AND GAS. Owing- to 
 the peculiar attributes of oil and gas the same legal 
 principles which apply to solid minerals do not apply to 
 oil and gas, as the latter have a tendency to pass from 
 one man's land and become part of the land of another; 
 and if the adjoining owner taps the oil or gas reservoir 
 and takes oil and gas from the well, such oil or gas is 
 his, though he may have taken them from the lands of 
 another, because such owner has tapped the vein or res- 
 ervoir which underlies both tracts; 1 so the precedents 
 arising out of ordinary mining rights must be applied 
 more with the view of the principles of law involved 
 than the mere decisions, consequently when applying the 
 rules which govern the limitations of real actions the 
 general principles of the limitation laws are not always 
 applicable. * 
 
 SEC. 2. POSSESSION OF THE SURFACE NOT POSSES- 
 SION OF THE OIL AND GAS. Where the owner of lands 
 made a lease of lands for the purpose of operating for 
 oil or gas and the lessee was given the right to the pos- 
 session of sufficient land for the purpose of ingress, 
 egress, storage and transportation during the time the 
 lease was in force, and the lessee operated on the lands 
 by sinking a gas well, but did not use the gas after the 
 well was sunk, but had the well in such a condition that 
 the gas could be used if the lessee so desired, and while 
 the lessee had possession of the land for operating, the 
 
 1. Brown vs. Vandergrift, 80 Pa., 147; Westmoreland & C. Nat. 
 
 Gas Co. vs. DeWitt, 130 Pa., 235. 
 
 2. Westmoreland & C. Nat. Gas Co. vs. DeWitt, 130 Pa., 235. 
 
66 Adverse Possession of Oil and Gas Eights. 
 
 lessor used all the land for farming 1 purposes and made 
 a second lease to other persons for the same purposes, 
 the first lessee was held to be in possession of the gas 
 and that the gas was within his control by means of the 
 well and the appliances connected therewith, and that 
 the lessor who had possession of the soil for tillage had 
 no active possession of the gas and the lessor had no 
 legal possession, for the lease gave such possession to 
 the lessee. 1 The same rule in this respect applies to 
 coal and solid minerals and, where the title or estate in 
 the coal has been severed from the title to the surface, 
 such coal is land, and the possession of the surface of 
 the land gives no possession of the coal and acts of own- 
 ership which constitute possession of the mineral must 
 be distinct from the acts which are exercised over the 
 surface. * 
 
 SEC. 3. POSSESSION OF THE SURFACE is NOT AD- 
 VERSE TO THE OWNER OF THE GAS AND OIL RIGHTS IN 
 THE SAME LAND. When the owner of a tract of land 
 conveyed the same reserving "all mines, minerals and 
 metals in and under the land;" but, in subsequent con- 
 veyances, no reservations were made in the deeds and 
 each one of them purported to convey absolute title to the 
 land from the surface to the center of the earth and the 
 grantee set up the seven years statute of limitation to 
 bar the right of the owner of the oil and gas from taking 
 them, the court, however, held that the minerals were 
 separated from the surface and that each was a separate 
 and distinct estate and that the purchasers under the 
 deeds acquired the lands subject to the reservations of 
 the mineral rights, and the grantees acquired only an 
 estate in the surface and which could be used as all sur- 
 face owners ordinarily use the surface, but that the min- 
 
 1. Westmoreland & C. Nat. Gas Co. vs. DeWitt, 130 Pa., 235. 
 
 2. Catlin Coal Co. vs. Lloyd, 176 111., 275; Same vs. Same, 180 
 
 111., 398; Tyrwhitt vs. Wynne, 2 Barn & Add., 554; Cullen 
 vs. Rich, Bull N. P. (Eng.), 102. 
 
Limitation Laws. 67 
 
 erals were a separate and distinct estate. 1 So the 
 possession of the soil by the owner for the purpose of 
 tillage gives him no possession of the gas under the sur- 
 face or of the other minerals, and consequently without 
 any further showing than mere possession of the surface, 
 and without any denial of the rights to the minerals, 
 the owner of the surface does not acquire title under the 
 seven years statute of limitation. 2 The same rule is 
 applied to other minerals than oil and gas; and where 
 there has been a severance of the surface from part or 
 all the minerals, each has a separate and distinct estate, 
 and all the laws applicable to the surface as land are 
 applicable to the separate estate in the minerals and 
 among them is the statute of limitations. 8 
 
 SEC. 4. ACQUISITION OF MINERAL RIGHTS UNDER 
 THE STATUTE OP LIMITATIONS. Where the owner of 
 lands created a separate and distinct estate in the min- 
 erals by a deed or by an instrument of conveyance, 
 which would be color of title, in conveying the surface, 
 the grantee under such deed and such grantees subse- 
 quent grantees may acquire title to such minerals under 
 a statute providing that color of title acquired in good 
 faith, payment of taxes on "vacant and unoccupied 
 lands" for seven years is sufficient to give title; 4 but 
 where a person occupies the surface for more than seven 
 years with an actual residence thereon under a deed and 
 a proper claim of title, such person cannot defeat the 
 acquisition of the title to the minerals under color of 
 title acquired in good faith and the payment of taxes 
 thereon as vacant and unoccupied lands, under a statute 
 
 1. Murray vs. Allard, 100 Term., 100; 43 S. W., 355; Stewart vs. 
 
 Chadwick, 8 la., 463; Cadwell vs. Fulton, 31 Pa., 475; 72 
 Am. Dec., 760. 
 
 2. Murray vs. Allard, 100 Term., 100; 43 S. W., 355; 39 L. E. A., 
 
 249. 
 
 3. Armstrong vs. Caldwell, 53 Pa., 287; Washburn Real P. Vol. 
 
 2, p. 377; Williams vs. Gibson, 84 Ala., 228; Hartwell vs. 
 Camman, 2 Stack Ch., 128; Caldwell vs. Copeland, 37 Pa., 
 427. 
 
 4. Catlin Coal Co. vs. Lloyd, 176 111., 275. 
 
68 Adverse Entry Before Severance. 
 
 providing" that any person who occupied land for seven 
 years with an actual residence thereon, under a deed 
 connected by a legal or equitable chain of title from 
 the government of the United States, or the state, 
 etc., where the deed which gave color of title pur- 
 ported to create separate estates in the lands, and that 
 the owner of the surface did not have possession of the 
 minerals with a residence on such estate as required by 
 statute, 1 so when title by adverse possession is ac- 
 quired by possession alone, an actual entry upon the 
 minerals must be made where they have been separated 
 from the surface, and the claimant must maintain his pos- 
 session within the limits of the mineral estate for the 
 requisite period of time in an open, notorious, exclusive 
 and continuous manner. 2 
 
 A secret entry is not sufficient, and such an entry 
 will confer no rights on the intruder, as his acts must be 
 such so as to apprise the rightful owner of the entry. 
 In other words, the intruder must keep his flag flying so 
 that the true owner may be warned of the entry. 8 
 
 SEC. 5. AN ADVERSE ENTRY BEFORE THE SEVER- 
 ANCE OP THE MINERALS FROM THE SURFACE WILL GIVE 
 TITLE. But where a person enters upon the surface of 
 land under the claim of ownership and while such person 
 is so in possession, where the rightful owner makes a con- 
 veyance of the mineral coal, the conveyance so made does 
 not affect the rights of the person in adverse possession 
 of the surface as the making of the deed and the record- 
 ing of the same is not equivalent to an entry; and where 
 such person holds possession of the surface for the requis- 
 ite period of the statute of limitations, his title is perfect, 
 not only to the surface, but also to the mineral coal. 4 So 
 also where a person enters upon land under a claim of 
 title to the entire fee and proceeds to bore for oil and 
 
 1. Catlin Coal Co. vs. Lloyd, 180 111., 398. 
 
 2. Delaware & Hudson Canal Co. vs. Hughes, 183 Pa., 66; Kings- 
 
 ley vs. Hillside Coal & I. Co., 144 P. Pa., 613. 
 
 3. Plummer vs. Hillside Iron & Coal Co., 160 Pa., 483. 
 
 4. Finegan vs. Pennsylvania Transit Co., 5 Pa. Super. Ct., 128; 
 
 28 Pitts L. J. N. S.,68. 
 
Possession of Surface. 69 
 
 gas and the claim of such person dates back prior to the 
 time when the right of entry of the claimant had accrued, 
 such person will not be enjoined from opening gas and 
 oil wells thereon; as the only right that the claimants 
 have is one in ejectment. 1 
 
 SEC. 6. POSSESSION OF SURFACE BY THE OWNER 
 OF THE MINERALS UNDER A RESERVATION is NOT AD- 
 VERSE TO THE OWNER OF THE SURFACE. Where the 
 owner of land in fee conveyed the same to a third person, 
 but reserved the mineral rights in the lands and, after- 
 wards such owner of the mineral rights began operations 
 for the production of oil and occupied such parts of the 
 land as was necessary for the production, storage and 
 removal of the oils, such person can not claim title to 
 the lands so occupied, particularly when he claimed his 
 occupation was only temporary and paid the taxes on the 
 property placed on the premises for such operations and 
 storage of oil." So where an oil operator places struc- 
 tures on lands and such structures are destroyed and 
 carried away by a flood, before the statute of limitations 
 had run, and other structures were built on a different 
 part of the land, the adverse claimant did not hold the 
 land continuously, so as to bar the rightful owner. 3 
 
 SEC. 7. RECEIVERS FOR LAND WHERE TITLE is IN 
 DISPUTE UNDER A CLAIM OF ADVERSE POSSESSION AND 
 IN OTHER CASES INJUNCTIONS. Courts of equity exer- 
 cise the right to appoint receivers when the title to oil 
 and gas lands is in dispute, so that the property may not 
 be wasted^during the litigation, or where the persons ex- 
 tricating the oil and gas are insolvent. 4 So when a 
 stranger invades the possession of another, who has an 
 exclusive right to bore for oil and gas and starts the 
 erection of a derrick to bore for oil and gas, and where 
 such boring of wells would injure the wells of the lessee, 
 the stranger will be enjoined from sinking a well and 
 
 1. Erskine vs. Forest Oil Co. (C. C. W. D. Pa.), 80 Fed. Rep., 583. 
 
 2. Dietz vs. Mission Transfer Co., Cal. ; 25 P., 428. 
 
 3. Dietz vs. Mission Transfer Co., Cal. ; 25 Pac., 423. 
 
 4. Nevada Sierra Oil Co. vs. Home Oil Co., 98 Fed. E., 673. 
 
70 Accounting for Mineral. 
 
 from disturbing the lessee in his possession. 1 But when 
 persons in possession of land under a claim of ownership 
 which dates back to a time prior to the right of entry of 
 the parties who are out of possession and those who 
 claim adversely are solvent and the land would be 
 drained by oil operation, on other lands, a court of 
 equity will not disturb the adverse claimant in possession 
 and will send the parties to a court of law to establish 
 their title to the land;* and a court of equity will not 
 entertain a bill to quiet title where the bill sets up the 
 ownership in the complainant but admits the defendants 
 are in possession and have drilled oil wells and removed 
 oil from the premises and are sinking more wells, as the 
 bill is in effect a common law action of ejectment. 3 
 
 SEC. 9. ACCOUNTING FOR MINERALS TAKEN FROM 
 LANDS. The mere delay short of the period of the stat- 
 ute of limitations will not bar an action for an account- 
 ing where the parties are claiming adversely under an 
 oil and gas lease to the same premises; 4 and where the 
 lessor delays in bringing an action against the lessee of 
 oil and gas lands, it will not bar a recovery when such 
 action is not barred by the statute of limitations; 6 and 
 when a person is in sole management of a mining part- 
 nership and when the business is continued after the 
 death of one of the partners, the widow is not barred of 
 an accounting when the managing partner recognizes 
 her interest and makes her understand that all will be 
 accounted for, and also, in such case, there is an implied 
 trust existing and also the statute does not run until the 
 managing partner fulfilled all that was intended to be 
 done by him when the management was taken. 6 Where 
 minerals are secretly extracted from another's lands, 
 through shafts on adjoining lands, the cause of action 
 does not arise until the trespass is discovered. 7 
 
 1. Indianapolis Nat. Gas Co. vs. Kibby, 135 Ind., 357; 35N.E. 392. 
 
 2. Erskine vs. Forest Oil Co., 80 Fed. R., 583. 
 
 3. California Oil & Gas Co. vs. Miller, 96 Fed. R., 12. 
 
 4. Akin vs. Marshall Oil Co., 188 Pa., 614; 41 Atl., 748. 
 
 5. Ahrns vs. Chartiers Valley Gas Co., 188 Pa., 249; 41 Atl., 739. 
 
 6. Thomas vs. Hurst (C. C. W. D. Mo.), 73 Fed. R., 372. 
 
 7. Lewey vs. H. C. Prick Coke Co., 166 Pa., 536; 28 L. R. A., 283. 
 
FIXTURES. 
 
 CHAPTER VII. 
 
 SEC. 1. WHAT ARE TRADE FIXTURES. Trade fix- 
 tures are chattels placed upon the lands by a person so 
 that such person may be able to carry on the business 
 for which the land is used. * 
 
 When such questions arise between landlord and ten- 
 ant and such fixtures were placed upon the premises for 
 the purpose of trade, a greater latitude is allowed the 
 tenant, so that all fixtures set up for the better enjoy- 
 ment of trade are, as a general rule, retained and may be 
 removed by the tenant. The reason for the rule is that 
 when the owner or mortgagor makes the improvements 
 the purpose is to enhance the value of the premises and 
 to be permanent, but when the tenant makes the improve- 
 ments it is only for a temporary purpose and not with 
 the view of making such fixtures a part of the land. 2 
 
 SEC. 2. RULES RELATING TO FIXTURES. 
 
 (1) Intention. 
 
 Intention of parties as to whether the chattel shall 
 become permanently attached to the freehold is the 
 principal criterion to determine whether an article re- 
 mains a chattel or becomes a fixture; 8 and also the char- 
 
 1. Overman vs. Sasser, 107 N. C., 432; Lawton vs. Lawton, 3 
 
 Aik.,13. 
 
 2. Elwes vs. Maw, 3 East, 38; 2 Smith Lead. Cases, 228; Moore 
 
 vs. Valentine, 77 N. C., 188; Binkley vs. Forkner, 117 
 Ind., 176. 
 
 3. Dudley vs. Creighton, 67 Md., 44; Binkley vs. Forkner, 117 
 
 Ind., 176; Taylor vs. Watkins, 62 Ind., 511; Donald vs. 
 Shephard, 25 Kas., 112; Morris vs. French, 106 Mass., 326; 
 Penn. Mutual L. Ins. Co. vs. Semple, 38 N. J. Eq., 575; 
 Roddy vs. Brick, 42 N. J. Eq., 218; Foote vs. Garch, 96 N.C., 
 625; Van Ness vs. Packard, 2 Peter., 137; Wyrick vs. Bell, 
 3 Dak., 284; Vail vs. Weaver, 132 Pa., 363; Morriss App., 
 88 Pa., 368. 
 
72 Intention Not to Annex. 
 
 acter of the act by which the structure is put in its place, 
 and the policy of the law connected with the purpose. 1 
 
 (2) Annexation. 
 
 The chief element to be considered in case of annex- 
 ation is the mode of annexation and whether it can be 
 removed without a subsequent injury to the real estate. 2 
 
 (3) The adaptation of the use of the fixtures to the 
 realty with which the fixtures are connected. 3 
 
 SEC. 3. INTENTION NOT TO ANNEX. Where a rail- 
 road company digs a well on what it supposes to be its 
 right of way and places a pump thereon, and builds a 
 foundation for a boiler and places the boiler on the foun- 
 dation for the purpose of operating the pump to draw 
 water from the well, such pump and machinery does not 
 pass to the owner of the land when the title of the rail- 
 road company proves defective, because the pump and 
 the boiler were not placed there with the intention to 
 enhance the value of the real estate where they were 
 placed, but simply to furnish water to the railroad com- 
 pany's passing trains. 4 And where a person, a licensee 
 for mining purposes, placed machines in a building, they 
 do not become fixtures. 5 So when a person who holds a 
 lease on land for the production of oil and gas and no 
 oil or gas is found by the lessee, the lessee has a right 
 to take the casings out of wells which were sunk on 
 the land by the lessee and which were nonproductive. 6 
 
 SEC. 4. RIGHT TO REMOVE FIXTURES RESERVED IN 
 LEASE WHEN LOST BY DELAY. Where the lessee takes 
 a demise of land for the purpose of mining coal thereon 
 and places structures and appliances on the premises to 
 carry into effect the lease, and the lease contained a cov 
 
 1. Binkley vs. Forkner, 117 Ind., 176. 
 
 2. Callamore vs. Gillis, 149 Mass., 578. 
 
 3. Binkley vs. Forkner, 117 Ind., 176. 
 
 4. Atchison T. &. St. Fe Ry. vs. Morgan, 42 Kan., 23. 
 
 5. Springfield Foundry & Machine Co. vs. Cole, 130 Mo., 1 (31 
 
 S. W.,922). 
 
 6. Siler vs. Globe Window Glass Co., 21 Ohio C. C., 284. 
 
Removal of Fixtures by Tenant. 73 
 
 enant that the lessee could remove such structure and 
 appliances on the termination of the lease, the lessee 
 does not lose his right to remove such structures and 
 appliances because the lessee takes an extension of the 
 lease. So where the lease recites that the lessee shall 
 deliver the mines and mining" property on the termina- 
 tion of the lease, the lessee does not lose the right to 
 remove them because they are not removed immediately 
 on the termination of the lease, when the lessee has 
 been forcibly dispossessed before an expiration of an 
 extension of the lease, and a second lease is made while 
 a suit is pending to recover possession, in which suit the 
 lessee was successful, though the lease is thereafter sur- 
 rendered, and the fixtures are real estate as to the sec- 
 ond lessee, but the lessee under the first lease had a 
 right to remove the fixtures on the termination of the 
 lease. 1 But when a person takes a lease for the pur- 
 pose of operating for oil and gas for three years and as 
 much longer as oil and gas are found in paying quanti- 
 ties and aright to remove all fixtures at "any time," such 
 fixtures must be removed within a reasonable time, and 
 by waiting four years after ceasing operations the right to 
 remove them is lost;' though the lessee would have a 
 right to remove the casing before the expiration of the 
 lease when the lease was silent as to the right to remove 
 fixtures. 8 The casing in an oil and gas well as well as 
 the derrick, machinery and all appliances used in drill- 
 ing the well are trade fixtures and may be removed by 
 the lessee during the term or within a reasonable time 
 thereafter. 4 
 
 SEC. 5. REMOVAL OF FIXTURES AFTER A JUDICIAL 
 DECLARATION OF FORFEITURE RIGHT OF ACTION 
 AGAINST LESSOR FOR CONVERSION. Where a lease pro- 
 vided that the lessee could remove the fixtures used in 
 operating for oil and gas at any time after the termina- 
 
 1. Wright vs. McDonnell, Tex., ; 30 S. W., 907. 
 
 2. Shelters vs. Shivers, 171 Pa., 569; 33 All., 95. 
 
 3. Siler vs. Globe Window Glass Co., 21 Ohio C. C., 284. 
 
 4. Shellers vs. Shivers, 171 Pa., 569; 33 Atl., 95. 
 
74 After Forfeiture. 
 
 tion of the lease and a question arises between the parties 
 as to whether the lease has been terminated and the con- 
 troversy is taken into the courts and the action is decided 
 against the lessee and the lease is terminated, the statute 
 of limitations does not run against the lessee while the con- 
 troversy is pending in court, and the lessee has a right to 
 remove such fixtures on the termination of the suit. 1 
 The lessor is liable to the lessee for damages for refusal 
 to permit lessee to remove fixtures. 8 So where the lease 
 provided the lessee may remove the fixtures placed on 
 the premises for the purpose of boring for oil and gas and 
 the lessee failed to develop the land as was provided in the 
 lease and the lessor seized the fixtures of the lessee, the 
 lessor is liable to the lessee for the value of the trade fix- 
 tures, since the covenant on the part of the lessee to devel- 
 op the land, and the covenant on the part of the lessor that 
 lessee could remove the trade fixtures on the termination 
 of the lease are independent of each other and the less- 
 or's remedy is an action on the lease for a breach of cov- 
 enant. 8 
 
 1. Sattler vs. Apperman, 30 Pitts L. J. N. S., 205. 
 
 2. Sattler vs. Apperman, 30 Pitts L. J. N. S., 205. 
 
 3. Patterson vs. Hausbeck, 8 Pa. Super. Ct., 36. 
 
TAXATION. 
 
 CHAPTER VIII. 
 
 SECTION 1. MINERALS AS LAND. "One person may 
 be taxed as the owner of the fee of the land, another for 
 the trees, buildings and other structures thereon, and 
 another for the minerals and quarries therein" was held 
 under a statute which provided that "land" is "to include 
 the land itself, including land and water; all buildings 
 and other articles erected upon or affixed to the same; 
 and trees and underwood growing thereon; and all mines, 
 minerals and fossils in and under the same." And under 
 such a statute a pier built by a third person on land 
 belonging to the city was land, and taxable as such. * 
 So was a street car line laid on the streets of a city held 
 to be land under the statute, 1 and as between the parties* 
 there where no restrictions to make the building on the 
 lands of another personal property, but as for taxation 
 such will be taxed as land. 3 So where the owner of land 
 conveyed the same but reserved all the mineral coal and 
 the right to mine the same under the land, the coal is 
 taxable as land, though no mine was open and there was 
 no proof that coal existed under the land, since these 
 were not material, as the reservation itself was a prop- 
 erty right and taxable as real estate under a constitution 
 providing that "the General Assembly should provide 
 such revenue as may be needful, by levying a tax by 
 valuation, so that every person or corporation shall pay 
 tax in proportion to his, her or its property" and under a 
 statute providing that when the owner of land shall con 
 
 1. Smith vs. Mayor, 68 N. Y., 552. 
 
 2. People vs. Cassity, 46 N. Y., 46. 
 
 3. People vs. Brooklyn Board of Assessors, 93 N. Y., 308. 
 
76 Oil and Gas Real Estate. 
 
 vey by deed or lease, any mining right therein, such con- 
 veyance shall be considered as so separating such right 
 from the land that the same shall be taxed separately 
 and any sale of land for taxes or assessments shall not 
 include or affect such mining right. * So under a statute 
 providing that, "In valuing any real property on which 
 there is a coal or other mine, or stone or other quarry, the 
 same shall be valued at such a price as such property 
 including the mine or quarry, would sell at a fair volun- 
 tary sale'for cash," the coal was held to be taxable as land 
 and the section above referred to did not prevent the sev- 
 erance of the coal from the remainder of the fee for the 
 purposes of taxation where the coal rights were sepa- 
 rated from the fee by the party, and that such rights 
 acquired in the coal were not personal property until 
 severed. 2 So a lease of coal with the right to mine the 
 same is taxable against lessee as real estate. 8 
 
 SEC. 2. TAXES ON OIL AND GAS RIGHTS IN LANDS. 
 Where the owner of lands separates the oil and gas 
 rights from the fee and conveys them in fee to a third 
 person upon condition that the grantee should pay a 
 specified sum of money to the grantor within a certain 
 time after the completion of a well on the land and in 
 case the money was not paid within the time specified 
 the grant would be absolutely null and void, the right 
 thus given to the grantee is taxable as real estate sepa- 
 rate from the fee under the W. Va. statute, regulating 
 the taxation of real property, providing that the person 
 who by himself or tenant has the freehold in his posses- 
 sion, whether in fee or for life, shall be deemed the own- 
 er for the purposes of taxation. And the estate thus 
 conveyed is liable to be forfeited for the non-payment of 
 taxes, but when such a right is not separated from the 
 fee by the assessor and the owner of the land pays the 
 
 1. In Re Major, 134111., 19. 
 
 2. Consolidated Coal Co. vs. Baker, 135 111., 545. 
 
 3. Sanderson vs. Scranton, 105 Pa., 469; Logan vs. Washington 
 
 Co., 29 Pa., 374; Short vs. Com., 15 Ky. L. R., 613; 23 
 S. W.,367. 
 
Not Taxable as Personality. 77 
 
 taxes on the whole land, the payment saves the right to 
 oil and gas conveyed from forfeiture. 1 So the pipes 
 used by a gas company for the transportation of gas is 
 real estate and should be taxed as such in the taxing 
 district where they are located. 2 
 
 SEC. 3. RIGHT TO PRODUCE OIL AND GAS NOT 
 TAXABLE AS PERSONAL PROPERTY. Where the owner 
 of property containing oil and gas leases the same to a 
 third person who has the right to put down wells and, 
 on the production of oil, the lessee is to pay one-eighth 
 of the oil produced to the lessor, as a royalty, and such 
 prospective production is assessed against the lessee, as 
 personal property, for a given year, such assessment is 
 void, because oil and gas in the ground are part of the 
 real estate to which they are attached for the time 
 being, and though the lessee may drill for oil and gas 
 among the rocks, such oil and gas remain real estate 
 until they are taken from the ground to the surface; and 
 the ownership remains in the lessor until they are taken 
 from the ground to the surface and then seven-eighths of 
 the oil becomes the property of the lessee and one- 
 eighth remains in the lessor; and even though the wells 
 were drilled at the time the assessment was made, such 
 wells did not have the effect of converting the oil or gas in 
 the ground into personal property, as they were but mere 
 conduits through which the oil or gas may pass which 
 was in and among the rocks as they always existed in a 
 state of nature. 3 The assessment was void also because 
 the oil had not been produced when the assessment was 
 made and was a mere conjecture whether the lessee 
 would produce oil or not. 4 Where also the lessee ac- 
 quires the right to drill for oil and gas for a specified 
 time and is to pay a certain royalty to the lessor and 
 with a provision that the lessee will sink wells or pay a 
 
 1. State vs. Low, 46 W. Va., 451; 33 S. E., 271. 
 
 2. Consumers Gas Co. vs. Toronto, 27 Canada (S. C.), 453. 
 
 3. Carter vs. County Court of Tyler Co., 45 W. Va., 806; 32 S. E., 
 
 216; 43 L. E. A., 725. 
 
 4. Carter vs. County Court of Tyler Co., 45 W. Va., 806. 
 
78 Fixtures Personal Property. 
 
 royalty or surrender the lease, such a right is not tax- 
 able against the lessee under a statute providing for the 
 taxation of minerals in place the same as land, as such 
 minerals cannot be taxed against a person unless they 
 are owned in fee; 1 and so an interest acquired under an 
 oil and gas lease for a term of years is not such an inter- 
 est which requires the separation of the interest acquired 
 under the lease from the fee but the whole estate is to 
 be taxed against the owner of the land where no statute 
 provides that the right under the lease shall be taxed 
 against the lessee.* 
 
 SEC. 4. FIXTURES TAXED AS PERSONAL PROPERTY 
 GAS MAINS. Uuder a statute providing that the words 
 personal property used in a law regulating taxation 
 shall include all fixtures attached to land, if not included 
 in the valuation of such land entered upon the proper 
 land book, all appliances, such as pumpsj boilers, tanks, 
 etc., used in taking oil from land by a lessee is taxable 
 as personal property. 3 The legislature has the power 
 for the purpose of taxation, to classify permanent fix- 
 tures, which at common law are real estate, as personal 
 property, and the owner of such property can not com- 
 plain. 4 So the term "land," which may include build- 
 ings, trees, mines, etc., as used in a statute in regulating 
 taxation, does not include gas mains laid on a public 
 street so as to be taxable as real estate; 5 nor are such 
 mains fixtures. 6 When gas mains are laid on a street 
 with the permission of the city authorities, such mains 
 are part of the plant and are personal property. 7 So 
 also, when a water company builds mains through a city 
 from its plant and furnishes water to the city and also 
 
 1. Jones vs. Wood, 2 Ohio Dec., 75. 
 
 2. Moore's App., 4 Pa. Dist. R., 703. 
 
 3. Carter vs. County Court of Tyler Co., 45 W. Va., 806. 
 
 4. Johnson vs. Roberts, 102 111., 655. 
 
 5. People vs. Brooklyn Board of Assessors, 39 N. Y., 81. 
 
 6. People vs. Brooklyn Board of Assessors, 39 N. Y., 81. 
 
 7. Memphis Gas Light Co. vs. State, 6 Coldw. (Tenn.), 310; 98 
 
 Am. Dec., 452. 
 
Taxation of Gas Mains. 79 
 
 to its inhabitants through such mains, and has a number 
 of water plugs standing about two feet above the sur- 
 face and connected with such mains, such mains and 
 water plugs are personal property and are taxable as 
 such. 1 
 
 SEC. 5. GAS MAINS AND PIPE LINES WHEN TAX- 
 ABLE AS REAL ESTATE. But where a pipe line company 
 constructs its line of pipe over the lands of another } 
 such pipe line is taxable as real estate, though the own- 
 er uses the surface of the land. 2 And where the question 
 is to be determined on the principles of the common law 
 and the statute regulating taxation is silent as to the 
 mode of taxation, the gas mains are appurtenant to the 
 lots on which the main plant is situated and are taxable 
 as real estate, 8 and where a city levies a tax on the pipes 
 of a gas company, under a statute authorizing a tax on 
 those who hold or occupy the street, and the tax was 
 levied on them as real estate and the same was held 
 valid. 4 So where under a statute which provided, "that 
 taxes shall be assessed in the township where the land 
 lies, to the owner or person in possession thereof, and 
 the words 'real estate' for the purpose of taxation shall 
 include all lands and buildings erected or affixed to the 
 same and all tenements and hereditaments connected 
 therewith and all rights thereto and interest therein," 
 water mains and pipes of a water company were to be 
 assessed in the district where they were located, as real 
 estate, to the person or company owning them. "The 
 idea," said the court, "that they may be considered ap- 
 purtenances to the place of supply and taxable there is un- 
 tenable. There is no principle upon which it can rest."^ So 
 
 1. Shelbyville Water Co. vs. People, 140 Ills., 645; 16 L. R. A., 
 
 505. 
 
 2. Tide Water Pipe Line Co. vs. Berry, 53 N. J. L., 212; Same, 
 
 52 N. J. L.,308. 
 
 3. Capital City Gas Light Co. vs. Charter Oak Ins, Co., 51 la., 31; 
 
 Providence Gas Co. vs. Thurber, 2 R. I., 15. 
 
 4. Providence Gas Co. vs. Thurber, 2 R. I., 15. 
 
 5. Paris vs. Norway Water Co., 85 Me., 33; also, Rex vs. Bath, 
 
 14 East, 610; Rex vs. Brighton Gas Light & Coke Co., 
 5 Bar. &C.,466. 
 
80 Gas Main as an Appurtenance. 
 
 pipe lines in a street for the distribution of natural gas 
 are taxable as real estate. * 
 
 SEC. 6. GAS MAINS APPURTENANCES OF THE MAIN 
 PLANT AND ARE TAXABLE AS PART OF THE PLANT WHERE 
 SUCH PLANT is SITUATED. There is a certain line of 
 authorities which hold that gas mains are appurtenances 
 of the ground or land where the main plant is situated 
 and that such plant being real estate, is taxable as such 
 and the mains and pipes for the conveyance of the gas 
 are taxable as part and parcel of such real estate. 8 So 
 when the pipes extend into another township, the pipes 
 so extended are taxable in the township where the plant 
 is situated. 3 And the same rule applies when a water 
 company has an easement to flow land, such an easement 
 is taxable as part of the water power. 4 So where a water 
 company built a water works to supply water to a city 
 and its inhabitants on land which was to be occupied by 
 the company at its pleasure, the water works were held 
 to be real estate and the water mains and pipes were 
 appurtenances of the main plant and all taxable as real 
 estate where the plant was situated.* 
 
 SEC. 7. WELLS, MAINS, PIPES AND OTHER APPLI- 
 ANCES TAXABLE AS PART OF THE FRANCHISE. Oil and 
 gas wells, mains and pipes which belong to a corpora- 
 tion for the transportation and supply of natural gas and 
 oil and all the lands necessarily connected therewith are 
 not taxed separately in same jurisdictions, but the cor- 
 porate stock is taxed and all property necessary to the 
 exercise of its corporate franchise is not taxed, and un- 
 der the law the local authorities have no authority to 
 impose taxes on the local property. Thus, boilers, en- 
 gines and derricks, which are used for the transportation 
 of oil and to facilitate the production thereof, are not 
 
 1. People vs. Martin, 48 Hun., 193. 
 
 2. Capital Gas Light Co. vs; Charter Oak Ins. Co., 51 la., 31; 50 
 
 N.W., 579. 
 
 3. Be Des Moines Water Co., 48 la., 324. 
 
 4. Fall River vs. Bristol Co., Com., 125 Mass., 567. 
 
 5. Oskaloosa Water Co. vs. Board, 84 la., 407; 15 L. R. A., 296. 
 
Taxation of Capital Stock. 81 
 
 subject to local taxes; 1 and a gas company organized 
 under the Pennsylvania Act of 1883, for the production, 
 storage and transportation and supply of natural gas to 
 the public is a public corporation and is exempt from 
 local taxes ? and all pipes laid on a street by a natural 
 gas company are exempt where such pipes are used to 
 distribute natural gas; 8 and the ground and buildings 
 for the manufacture and supply of natural gas to the 
 public are exempt; and buildings which are necessary 
 for the manufacture and supply of gas to the public are 
 exempt from local taxation when the company paid 
 taxes on its capital stock to, the State. 4 In California 
 the franchise of a gas company is assessed as a whole, 6 
 and when pipes are extended through a county to supply 
 the people of a different county, such pipes are not sub- 
 ject to local taxes as such pipe line is not a franchise, 
 but a mere right of way. 6 So where a water company's 
 pipes, mains, plugs and plant were taxed separate from 
 the lots on which the plant was situated, the assessment 
 was erroneous as the plant, together with the pipes, etc., 
 and franchise, are the principal thing and the lots are 
 only the incident; 7 and where a dam is necessary to the 
 exercise of a franchise of an improvement company, 
 such dam cannot be taxed separate from the franchise 
 as the rights, franchises, and plant essential to the con- 
 
 1. Mellon vs. Alleghany Co., 3 Pa., Dist. Ct., 422. 
 
 2. St. Mareys Gas Co. vs. Elk Co., 191 Pa., 458; 43 Atl., 321; 
 
 Ridgway Light & H. Co. vs. Elk Co., 191 Pa., 465; 43 Atl., 
 323; Mellon Pipe Line Co. vs. Allegheny Co., 2 Pa. Dist. 
 R.,448. 
 
 3. Pillsburgh's App., 123 Pa., 374; 16 Atl., 621, Coatsville Gas 
 
 Co. vs. Chester County, 97 Pa., 476. 
 
 4. Schuyler Co. vs. Citizens Gas Co., 148 Pa., 162; 23 Atl., 1055; 
 
 West M. Gas Light Co. vs. Phila., 3 Pa. Dist. R., 52. See 
 Sterling Gas Co. vs. Higby, 134 111., 557; Ottawa Gas Co. vs. 
 Downey, 127 111., 201. 
 
 5. San Jose Gas Co. vs. January, 57 Cal., 614. 
 
 6. Spring Valley Waterworks vs. Barber, 99 Cal., 36; 33 Pac., 
 
 735; 21 L. R. A., 416. 
 
 7. Fond Du Lac Water Co. vs. City of Fond Du Lac, 82 Wis., 
 
 322; 16 L. R. A., 581; 52 N.W. 439. 
 
82 Exemption. 
 
 tinued business and purposes of a corporation, are not 
 to be severed without express legislative authority. J 
 But where the franchises are taxed, other property which 
 is not necessary to carry on the business of the company 
 is not exempt, thus: a house occupied by a tenant is not 
 exempt, though such house was once used as an office; * 
 nor are homes provided for workmen of the company; 8 
 nor are houses merely used for the convenience of the 
 company exempt from local taxation where such houses 
 are not necessary. * 
 
 SEC. 8. EXEMPTION OF CITIES FROM TAXATION. 
 Where a city owns gas wells, pipe lines and pumping sta- 
 tions for the production and transportation of natural gas 
 to the inhabitants of the city as well as to supply the 
 city, the property is exempt from taxation under the Ohio 
 statute exempting the property of a city from taxation. 6 
 But under a constitution which provides that, "There 
 shall be exempt from taxation public property used for 
 public purposes, "a city which supplies water and gas to 
 its citizens and receives pay therefor, is not exempt from 
 taxation and the state may impose taxes on the plant 
 and its means of transportation, the same as against any 
 other private corporation engaged in the same business. 6 
 The reason assigned for holding a city which operates 
 its own water works and gas plant liable for taxes, is 
 that the furnishing of gas and water to the people of a 
 city is not the exercise of a political governmental right 
 but simply a commercial enterprise. 7 The same court 
 
 1. Yellow River Improvement Co. vs. Wood County, 81 Wis., 554; 
 
 51 N.W.,1004. 
 
 2. Schuyler County vs. Citizens Gas Co., 23 Atl., 1055; 148 Pa., 162. 
 
 3. West Chester Gas Co. vs. Chester County, 30 Pa., 232. 
 
 4. Ridgway Light & Heat Co. vs. Elk County, 191 Pa., 466. 
 
 5. Toledo vs. Hasler, 51 Ohio St., 418; ^43-N. E., 583. 
 
 6. Negley vs. City of Henderson, Ky., ; 55 S. W., 554. 
 
 7. Com. vs. McKibban, 90 Ky., 384; Covington vs. Com., 19 Ky. 
 
 L. R., 105; 39 S. W., 836; Same, 173 U. S., 231; New Port 
 vs. Com., 21 Ky., L.R. 42; 45 L.R.A., 518;Wagner vs. Rock 
 Island, 146 Ills., 139; 21 L. R. A., 519. 
 
Tax on Product. 83 
 
 has held that the property of a city used as a protection 
 against fires is exempt from taxation. * 
 
 Many courts hold that the maintenance of water 
 works or a gas plant by a city for the supply of water 
 and gas, from which the city receives a rental, is an ex- 
 ercise of a governmental power and which is in no sense 
 private. 2 When, however, an independent company owns 
 its plant and supplies a city and its people with gas, such 
 company is not exempt from taxation. 8 
 
 SEC. 9. TAX ON PRODUCT OF A PIPE LINE COM- 
 PANY. The State is vested with the power to impose an 
 excise tax on the franchise of a transportation company 
 engaged in inter-state commerce and the tax so levied 
 may be based on a certain per cent of the earnings of 
 the company which accrued from inter-state commerce; 4 
 and where a transportation corporation is doing business 
 in several states, an assessment of its property and fran- 
 chises may be apportioned by taking the whole milage 
 of the company and the total value of such milage and 
 make the assessment, in the state, in proportion as the 
 property bears to the whole value. 5 So, also, where a 
 pipe line company transports oil through its pipes from 
 one state through another, the latter may impose an ex- 
 cise tax on such company for the privilege of doing busi- 
 ness in the state, and when the tax imposed is a certain 
 per cent of the receipts from the transportation of petro- 
 leum, such tax is not an interference with inter-state 
 
 1. Owensboro vs. Com. 20 Ky., L.R. 1281; 49 S. W., 320; 44 L. R. 
 
 A., 202. 
 
 2. Springfield Fire & Marine Ins. vs. Village of Keeseville, 148 
 
 N. Y., 46; 30 L. R. A., 660; Smith vs. Nashville, 88 Tenn., 
 464; West Hartford vs. Board of Com., 44 Conn., 367. 
 
 3. Austin vs. Austin Gas Light & C. Co., 69 Tex., 187. 
 
 4. Moine vs. Grand Trunk Ry., 142 U. S., 217. 
 
 5. State Railroad Tax Cases, 92 U. S., 575; Western Union Tel. 
 
 Co. vs. Mass., 125 U. S., 530; C. C. C. & St. L. vs. Backus, 
 133 Ind., 513; 18 L. R. A., 729. 
 
 6. State, Tide Water Pipe Line Co. vs. State Board of Assessors, 
 
 51 N. J. L., 516; 27 L. R. A., 684. 
 
The Use of Streets and Highways. 
 
 CHAPTER IX. 
 
 SECTION 1. RIGHT TO TAKE PRIVATE PROPERTY 
 FOR PUBLIC USE. The exercise of the right of eminent 
 domain is an attribute of sovereignty and a state has a 
 right to determine who may exercise the right, although 
 such a right can be exercised only when public conven- 
 ience, or necessity, requires it; but when the legislature, 
 the representatives of the sovereign people, declares 
 that such necessity or public convenience exists, the 
 courts cannot question the wisdom of the legislature. 1 
 The time, manner and the occasion for the exercise of 
 the right of eminent domain is in the control of the legis- 
 latures of the various states in the union, and the only 
 restraint placed upon them are the constitutions of the 
 various states." The use to which the property taken 
 is to be applied must be a public use, 8 but such use is 
 public if the public has a right to use the land 
 taken; 4 however, where the rights conferred are essen- 
 tially private rights, the legislature cannot divest one 
 
 1. Consumers Gas Trust Co. vs. Earless, 131 Ind., 446; 15 L. R. 
 
 A., 505; Waterworks Co. of Indianapolis vs. Burkhart, 41 
 Ind., 364. 
 
 2. Secomb vs. Milwaukee & St. P. Ry., 90 U. S., 108; Swan vs. 
 
 Williams, 2 Mich., 247; Weir vs. St. P. & S. & T. F. Ry., 
 18 Minn., 155; Roanoke vs. Berkowitz, 80 Va., 616; United 
 States vs. Jones, 109 U. S., 513. 
 
 3. McQuillen vs. Hatton, 42 Ohio St., 202; Savannah vs. Hancock, 
 
 91 Mo., 54; Chicago & E. I. Ry. vs. Wiltse, 116 111. 449. 
 
 4. Concord Ry. Co. vs. Greeley, 17 N. H., 47; Rogers vs. Brad- 
 
 shaw, 20 Johns., 735; Sholl vs. German Coal Co., 118 
 Ills., 427. 
 
Eight of Eminent Domain. 85 
 
 man of his property and give it to another 1 and whether 
 the use is public or private is a judicial question. 2 So 
 companies organized for the transportation of petroleum 
 through pipes, such as pipe line companies, are classed 
 as tube highways and have the right of eminent domain 
 for the purpose of acquiring land to be used for that 
 purpose; 8 and the legislature may charter a company 
 for the purpose of manufacturing and distributing gas to 
 a city and its people and may grant the use of the 
 streets of the city for the purpose of conveying the gas 
 through pipes to the consumers, since the legislature 
 has the exclusive control over the streets and highways 
 and the local municipal authorities have no just grounds 
 to complain. 4 However, the manufacturing and sale of 
 gas is a business which may be pursued by any person, 
 company or corporation but when the gas is to be con- 
 veyed through pipes laid in the streets and the streets 
 became partially occupied, the right to so occupy the 
 streets is a public franchise which the legislature alone 
 has a right to grant. 5 
 
 SEC. 2. RIGHT OP EMINENT DOMAIN MAY BE LIM- 
 ITEDCONDITION PRECEDENT. Gas companies organ- 
 ized to supply natural gas to the public may be given 
 the power of eminent domain; 6 for when gas is conveyed 
 through the pipes of the company the gas so conveyed is 
 freight, and consequently the company may be granted 
 the same rights of a common carrier. 7 The right of emi- 
 nent domain is an attribute of state sovereignty, so the 
 
 1. Underwood vs. Baily, 59 N. H., 480; Hepburns Case, 3 
 
 Bland, 95. 
 
 2. Pittsburg, Wheeling & Ky. Ry. Co. vs. Benwood Iron Works, 
 
 31 W. Va., 710; 2 L. R. A., 680. 
 
 3. West Virginia Transpt. Co. vs. Vulcanic Oil Co., 5 W.Va., 382; 
 
 Wisconsin Water Co. vs. Winans, 85 Wis. 26; 20 L. R. A., 
 662; Carothers App., 118 Pa., 468; 12 Atl., 314. 
 
 4. Atlanta vs. Gate City Gas Light Co., 71 Ga., 106. 
 
 5. Jersey Gas Co. vs. Dwight, 29 N. J. Eq., 242. 
 
 6. Johnson vs. Peoples Natural Gas Co., (Pa.) 7 Atl., 167. 
 
 7. McDevetts Appeal, Pa., ; 7 Atl., 588. 
 
86 Right to Lay Pipes on Streets. 
 
 state, when granting the right to private parties, may 
 impose such restriction on them as the state may see fit 
 hence the legislature may provide that companies, cor- 
 porations and associations organized under the laws of 
 the state, for the purpose of the production and market- 
 ing of petroleum and natural gas to the citizens of the 
 state may exercise the right of eminent domain and deny 
 the right to those engaged in supplying such products 
 to people outside the state. 1 A private party can not 
 condemn land for the laying of a pipe line to furnish the 
 people of a city with gas unless it is shown as a condi- 
 tion precedent that the party condemning the land has 
 made a contract to supply the public or that such party 
 has secured the right of way to lay pipes in the city to 
 supply the people, as the right to condemn is only inci- 
 dental to the right to supply, and the right to supply 
 must exist as a condition precedent before land can be 
 appropriated for a pipe line. 2 
 
 SEC. 3. RIGHT TO LAY PIPES ON STREETS, A LI- 
 CENSE OR A CONTRACT WITH THE CITY EXCLUSIVE 
 RIGHT. The business of manufacturing and distributing 
 illuminating gas by means of pipes laid on the streets of 
 a city is a business of a public character. It is the exer- 
 cise of a franchise belonging to the state. 3 The services 
 rendered or to be rendered for such a grant are of a pub- 
 lic nature, and where a gas company acquires the right 
 to use the streets of a city for the purpose of laying their 
 pipes thereon, such an entry under their charters is 
 somewhat analogous to the exercise of the power of emi- 
 nent domain. 4 And when such right is acquired it is a 
 license in the nature of an easement, 5 or, as some courts 
 
 1. Consumers Gas Trust vs. Earless, 131 Ind., 446. 
 
 2. Wisconsin Water Co. vs. Winans, 85 Wis., 26. 
 
 3. Chicago Gas Light & Coke Co. vs. Peoples Gas Light & Coke 
 
 Co., 121 111., 530, Shepherd vs. Gas Co., 6 Wis., 526; City 
 of St. Louis vs. St. Louis Gas Co., 70 Mo., 69; Gibbs vs. 
 Baltimore City Consol. Gas Co., 130 U. S., 396. 
 
 4. Gibbs vs. Baltimore City Consol. Gas Co., 130 U. S., 396. 
 
 5. Providence Gas Co. vs. Thurber, 2 R. I., 15. 
 
Within Ordinary Use. 87 
 
 hold, a contract with the city. 1 The same rule applies 
 to natural gas companies.* When the city is authorized 
 to furnish gas for its streets and to its people, the city 
 has an implied power to contract with others to do so. 8 
 And the right to supply gas to a city and its people and 
 use the streets for that purpose is legal. * Where the 
 city, however, is not given the express power to grant 
 exclusive privileges to lay pipes on the streets, an at- 
 tempt to grant such a power is void; 5 and where there is 
 a provision in the state constitution against monopolies 
 the exclusive use of the streets can not be granted to a 
 gas company; 6 or when a statute provides that any com- 
 pany may extend its pipes by getting consent from the 
 city. 7 The assent of the city to lay pipes is necessary 
 where the law so provides 8 and when the right to lay 
 the pipes is acquired, such right will be construed more 
 strictly against the company, 9 but that means that 
 nothing shall pass by implication except that which is 
 necessary to carry into effect the object of the grant. 10 
 
 SEC. 4. WHAT STREETS INTENDED WITHIN WHAT 
 TIME MUST THE STREETS BE OCCUPIED. Where a city 
 ordinance gave a gas company a right to lay gas pipes 
 
 1. Chicago Municipal Gas Light Co. vs. Town of Lake, 130 111., 42. 
 
 2. McDevitt vs. Peoples Gas Co., 7 Atl. 588; Johnston vs. Peoples 
 
 Gas Co., 113 Pa., 103; 7 Atl., 167. 
 
 3. Newport vs. Newport Light Co., 84 Ky., 166. 
 
 4. Opinion of Justices, 150; Mass. 392; State vs. Hamilton, 47 
 
 Ohio St., 52. 
 
 5. Grand Rapids P. C. E. I. vs. Grand Eapids, E. E. & L. 
 
 Co., 33 Fed. R., 659; State vs. Cincinnati Gas Light & 
 Coke Co., 18 Ohio St., 262; Richmond Gas Light Co. vs. 
 Middleton, 59 N. Y., 229; Meadville Fuel Gas Co. vs. Mead- 
 ville Nat. Gas Co., Pa., ; 4 Atl., 733; Citizens Gas 
 & Min. Co. vs. Elwood, 114 Ind., 332. 
 
 6. Brenham vs. Brenham Water Co., 67 Tex., 543; Memphis vs. 
 
 Memphis Water Co., 5 Heisk, 495. 
 
 7. Parntt vs. Ferguson, 3 App. Dev. (N. Y.), 176. 
 
 8. Pittsburg App., 115 Pa., 4; 7 Atl., 788. 
 
 9. State vs. Boyce, 43 Ohio St., 46; Pensacola Gas Co. vs. Pensa- 
 
 cola, 33 Fla., 322; 14 So., 826. 
 
 10. People, Woodhaven Gas Light Co. vs. Deehan, 153 N. Y., 528; 
 47 N. E.,787. 
 
88 Eight to Change Grade. 
 
 in streets of a city, such an ordinance covers streets 
 which are thereafter laid out as well as streets in use by 
 the city at the time the right was granted. x So a city 
 ordinance which is silent as to what streets shall be 
 used, the ordinance is not void and the gas company can 
 make its own selection. 2 The streets must be occupied, 
 however, within the time prescribed by the ordinance. 8 
 So where a town ordinance provides that a gas campany 
 shall occupy the streets of the town within one year and 
 commence supplying gas to the public, and such com- 
 pany did not lay its pipes within one year, or commence 
 to furnish gas to the public, such company will be en- 
 joined after the expiration of the year from entering 
 upon the streets to lay its gas pipes. 4 
 
 SEC. 5. RIGHT OF A CITY TO CONSTRUCT SEWERS 
 OR CHANGE GRADE OF THE STREET DAMAGES TO PIPES 
 IN THE STREETS. A city is not liable for damages for 
 an injury to gas pipes while the city was constructing 
 sewers in the streets of the city, though the pipes were 
 laid under authority from the city, if the acts of the city 
 in the construction of the sewers were not done in a 
 negligent manner and were done in the exercise of a 
 right conferred by statute. 5 The use of public streets 
 for the purpose of laying gas pipes thereon is not a 
 primary use for which streets are laid out, but, on the 
 contrary, streets are laid out for the accommodation of 
 the public in traveling over them. So where duties are 
 imposed on cities to keep the streets of a city in 
 repair, the city council has a right to change the 
 grade of the streets at any time, and a gas company 
 which has laid its pipes in the streets, at a grade then 
 established, cannot complain if the city council thereafter 
 
 1. People Woodhaven Gas Light Co. vs. Deehan, 153 N. Y., 528. 
 
 2. City of Kalamazoo vs. Kalamazoo Heat. Power & L. Co., 
 
 'Mich., ; 82 N. W., 811. 
 
 3. Chicago Municipal Gas Light Co. vs. Town of Lake, 130 
 
 4. Chicago Municipal Gas Light Co. vs. Town of Lake, 130 111., 
 
 42; 22 N. E., 616. 
 
 5. Brunswick Gas Light Co. vs. Brunswick, 92 Me., 493; 43 
 
 Atl.,104. 
 
Right of Gas Company to Take up Pavement. 89 
 
 sees fit to change the grade of the streets and cannot 
 prevent the city from so changing the grade since, when 
 the company accepted the right to lay its pipes on the 
 public streets, the company acquired the right subject 
 to the right in the city to change the grade. 1 And the 
 same principle applies as applies to water pipes; 3 but a 
 city has a right and the power to contract to bear the 
 expense of a gas company caused by a change in the 
 grade. 3 A city is liable for damages to pipes where a 
 contract for the construction of a sewer was let to a third 
 person who was known to the officers of the city to be 
 incompetent. 4 A gas company has no right to charge 
 the consumers of gas the cost of taking up the pipes and 
 relaying them when a change of the grade was made by 
 the city and the gas company must bear such expenses 
 and not the property owners abutting on the street. 5 
 
 SEC. 6. RIGHT OF GAS COMPANY TO TAKE UP PAVE- 
 MENT. Where a city grants a natural gas company a 
 right to lay pipes in its streets for the purpose of sup- 
 plying gas to its consumers in a city and the gas com- 
 pany accepts the ordinance and there is no restriction 
 in the ordinance as to the right of the gas company to 
 dig up the street to repair its pipes, a city has no right 
 thereafter to pass an ordinance requiring the consent of 
 the city before the company can take up a pavement, 
 which was laid after the grant of the right to the gas 
 company, since the grant of the right to the gas com- 
 pany and the acceptance of the grant is a legislative 
 
 1. Columbus Gas Light & Coke Co. vs. Coleman, 50 Ohio St., 65; 
 
 19 L. R. A., 510; Jamaca Pond Acqueduct Co. vs. Brook- 
 shire, 121 Mass., 5; Roanoke Gas Co. vs. Roanoke, 88 Va., 
 810; 14 S. E., 665; Ee Deering, 93 N. Y., 361. 
 
 2. Brenham vs. Brenham Water Co., 67 Tex., 543; National 
 
 Waterworks Co. vs. Kansas City, 20 Mo. App., 237; Same 
 vs. Same, 28 Fed. R., 921; Rockland Waterworks Co. vs. 
 Rockland, 83 Me., 267. 
 
 3. Parfitt vs. Ferguson, 3 App. Dev. (N. Y.), 176. 
 
 4. Norwalk Gas Light Co. vs. Norwalk, 28 Atl., 32; 63 Conn., 495. 
 
 5. Re Deering, 93 N. Y., 361. 
 
90 Pips Lines on Highways. 
 
 contract which cannot be impaired by the city. l There 
 is no compulsion on the part of the city to grant a gas 
 company the privilege of using its streets and it is within 
 the discretion of a city to grant or refuse the right of the 
 use of a street, 2 so the city has a right to impose restric- 
 tion in its contracts for the use of its streets, 8 as the city 
 has exclusive control over its streets, 4 but when a city 
 makes a contract with a gas company which is within 
 its power and not tainted with fraud and no restriction 
 is placed in the ordinance limiting the right of the gas 
 company to open up the streets for the repair of its pipes, 
 the contract cannot thereafter be changed without the 
 consent of both parties. 5 The making of a contract, that 
 is the passage of an ordinance and the acceptance there- 
 of, is not the exercise of the city's power to legislate, 
 but, on the contrary, is the exercise of its right to con- 
 tract, 6 and is not the exercise of the police power which 
 abides in every state. 7 So an ordinance which forbids 
 a gas company from taking up the pavement so that a 
 pipe cannot be extended from the mains to the opposite 
 side of the street is void. 8 
 
 SEC. 7. PIPE LINES ON HIGHWAYS. Public high- 
 ways were not laid out for the conveyance of natural 
 gas through pipes in the highway; 9 and no person or 
 corporation can lay pipes in the highways without the 
 
 1. Indianapolis vs. Consumers Gas Trust Co., 140 Ind., 107, 335; 
 
 27 L. R. A., 514; 39 N. E., 433. 
 
 2. Citizens Gas & Min. Co.vs. Elwood, 114 Ind., 332; 16 N.E. 621. 
 
 3. Indianapolis vs. Consumers Gas Trust Co., 140 Ind., 107. 
 
 4. Cummings vs. Seymour, 79 Ind., 491. 
 
 5. Western Paving Supply Co. vs. Citizens Street Ry. Co., 128 
 
 Ind., 525; 26 N. E., 188; 28 N. E., 88. 
 
 6. Indianapolis vs. Indianapolis Gas Light & Coke Co., 66 Ind., 
 
 395; Illinois Trust & Savings Bank vs. Arkansas City, 40 
 U. S. Apis., 257; State ex rel. vs. City of St. Louis, 145 Mo. 
 551; 42 L. R. A., 122. 
 
 7. Louisville Nat. Gas Co. vs. State, 34 L. R. A., 518; 135 Ind., 59: 
 
 Indianapolis vs. Consumers Gas Trust Co., 140 Ind., 107. 
 
 8. Commissioners of North Liberties vs. North Liberties Gas Co., 
 
 12 Pa. St., 318. 
 
 9. Huffman vs. State, 21 Ind. App., 449; 52 N. E., 713. 
 
Consent of Owner. 91 
 
 consent of the owner of the fee, and whoever goes upon 
 the highway to lay pipes thereon, or the removal of the 
 same when placed there without the consent of the land 
 owner, is a trespasser and has no rights as a traveler. * 
 
 So when gas pipes are laid on the surface of a high- 
 way when there is no statute authorizing them to bejso 
 laid, the use is an unlawful obstruction, since the public 
 is entitled to use the surface of the roads for their whole 
 width. 2 
 
 When a pipe line is laid on a public highway without 
 the consent of the owner of the fee, such owner is not 
 prevented from objecting because no objection was made 
 to the laying of pipes over other lands on a highway be- 
 longing to the same owner. 8 In Indiana consent of the 
 county commissioners must be obtained before a gas 
 company can lay pipes on a public highway; 4 and where 
 such gas pipes are laid on a public highway without the 
 consent of the commissioners and the owner of the fee, 
 the owners of the fee may remove such pipes and the gas 
 company will have no action against such owner if to re- 
 move them no unnecessary force is used by such owner. 5 
 
 Where consent is given to a pipe line company to 
 lay pipes on a public highway, the commissioners hav- 
 ing a right under the statute to do so for the purpose of 
 transporting natural gas and petroleum, the pipe line 
 company must compensate the owner of the fee before 
 
 1. Huffman vs. State, 21 Ind. App., 449; 52 N. E.,713. See, also, 
 
 Goodtitle vs. Alker, 1 Burr, 133; Adams vs. Emerson, 6 
 Pick., 57; Robbins vs. Bowman, 1 Pick., 122; Cole vs. Drew, 
 44 Vt.,49; Clark vs. Dasso, 34 Mich., 86; Baker vs. Shep- 
 herd, 24 N. H., 208; Hunt vs. Rich, 38 Me., 195. 
 
 2. Lebenon Light, Heat & Power Co. vs. Leap, 139 Ind., 443; 
 
 Indianapolis Nat. Illuminating- Gas Co. vs. McMaith, - - 
 Ind App., ; 57 N. E., 593. 
 
 3. Consumers Gas Trust Co. vs. Hunsinger, 14 Ind. App., 156; 42 
 
 N. E., 640. 
 
 4. Consumers Gas Trust Co. vs. Hunsinger, Ind. App., ; 39 
 
 N. E., 423. 
 
 5. Consumers Gas Trust Co. vs. Hunsinger, Ind. App., ; 39 
 
 N. E.,423. 
 
92 Compensation to Owner. 
 
 such pipes can be laid, as such pipe line is an additional 
 servitude. 1 A statute conferring a right on the county 
 commissioners to grant the use of the public highways 
 to pipe line companies, subject to the use of the public, 
 does not give the public an additional right to the public 
 highways, but the owner's rights to the fee in the high- 
 way are the same as they were before the law was passed; 
 and a pipe line company has no right in such public road 
 as against such owner without compensating him for the 
 use of the road. 2 Also, in cities, when the fee of the 
 street is in the abutting owner, pipes of a natural gas 
 company are an additional servitude. 8 
 
 SEC. 8. RIGHT OP OWNER TO COMPENSATION. The 
 owner of the land over which a rural highway is located 
 is entitled to the entire use of the land, except the right 
 the public has to use the land for road purposes, and the 
 material thereon for the purpose of building and main- 
 taining the road suitable for the safe passage of travel- 
 ers; 4 and when such highways are laid out, the owner of 
 the land over which the road is laid out, retains every- 
 thing connected with the soil for all purposes not in- 
 compatible with the right of the public to a free and 
 unobstructed use of the road as a public highway. 5 It is 
 an ancient and well-settled rule that the public acquire, 
 except in cases when the fee is authorized to be taken, 
 nothing more than a right to pass and repass. 6 A use 
 of a rural highway other than for the purpose of travel 
 
 1. Consumers Gas Trust Co. vs. Hunsinger, Ind. App., ; 39 
 
 N. E.,423. 
 
 2. Hamilton County Commissioners vs. Indianapolis Nat. Gas Co. , 
 
 134 Ind., 209; 33 N. E., 972; Kincaid vs. Indianapolis Nat. 
 Gas Co., 124 Ind., 577; 24 N. E., 1066; 8 L. R. A., 602. 
 
 3. Mallory vs. Bradford, 1 Pa. Dist. R., 670. 
 
 4. Cole vs. Drew, 44 Vt., 49. 
 
 5. Postal Telegraph & Cable Co. vs. Eaton, 170 111., 513; Presby- 
 
 terian Society vs. Auburn & R. Ry., 3 Hill, 567; Kreuger 
 vs. Wisconsin Telephone Co., Wis., ; 50 L. R. A., 
 298. 
 
 6. Peck vs. Smith, 1 Conn., 103; Kincaid vs. Indianapolis Nat. 
 
 Gas Co., 124 Ind., 577. 
 
Permission of Owner. 93 
 
 is a taking 1 of a man's land; and the laying" of a gas pipe 
 in such a highway is a taking* and the imposition of an 
 additional burden, and compensation must be made to 
 the owner. 1 A gas company has no right to place its 
 pipes on a public highway without permission of the 
 land owner under a statute giving" a right to lay them. 8 
 A statute giving" a gas company a right to place pipes" 
 on the highway affects only the rights of the public and 
 the rights of the owner of the fee in the road remain in- 
 tact and no pipe line company can lay its pipes without 
 compensating him therefor. 3 
 
 SEC. 9. REFUSAL OP OWNER OF THE FEE TO GRANT 
 PERMISSION TO USE THE HIGHWAY. When a natural 
 gas company is organized for the purpose of supplying 
 the public with natural gas, any use made by such a 
 company of the highways is a public use; 4 and the work 
 of distributing gas to the public in large cities is one in 
 which the public has an interest; and when the proper 
 road authorities granted permission to a gas company to 
 lay its pipes in a public highway and such company 
 constructed its main line in such highway and many 
 people have so arranged their homes and factories for the 
 purpose of using gas as a fuel and illuminating purposes 
 and expended large sums of money therefor and the gas 
 company expended large sums of money in laying its 
 pipes in the highway, a landowner will not be entitled 
 
 1. Bloomfield & R. Natural Gas Light Co. vs. Calkins, 02 N. Y., 
 
 186; Same vs. Richardson, 63 Barb., 437; Stumpf's App., 
 116 Pa., 33; Webb vs. Ohio Gas Fuel Co., 16 West L. Bull., 
 121; Kincaid vs. Indianapolis Nat. Gas Co., 124 Ind., 577. 
 
 2. Krueger vs. Wisconsin Telephone Co., Wis., ; 50L.R. A., 
 
 302. 
 
 3. Kincaid vs. Indianapolis Nat. Gas Co., 124 Ind., 577; Krueger 
 
 vs. Wisconsin Telephone Co., - Wis., ; 50 L. R. A., 298; 
 Hamilton County Corns, vs. Indianapolis Natural Gas Co., 
 134 Ind., 209; 33 N. E., 972. 
 
 4. Kincaid vs. Indianapolis Nat. Gas Co., 124 Ind., 577; State vs. 
 
 Indiana & 0. 0. & G. Co., 120 Ind., 575; Carothers vs. Phil- 
 adelphia Co., 118 Pa., 468; Pennsylvania Nat. Gas Co. vs. 
 Cook, 123 Pa., 170; Johnston's App. (Pa.), 7 AtL, 167. 
 
94 Pipes on Surface. 
 
 to an injunction restraining- the gas company from the 
 use of the pipes, especially where he made no objection 
 when the pipes were laid and his only remedy is an action 
 for damages. * Nor can the county commissioners rescind 
 an order giving a natural gas company a right to lay 
 its pipes in and along and across the public highways 
 where the gas company appropriated part of the road to 
 the use for which the grant was made and there is no 
 showing made by the county commissioners that the gas 
 company has injured the road and made it inconvenient 
 for the public to travel thereon. 8 
 
 SEC. 10. PIPES ON THE SURFACE OF A HIGHWAY 
 INJURIES. Although a gas company or a pipe line com- 
 pany may get authority from the county commissioners 
 who have charge of the rural public highways, to lay 
 pipes on a public highway, a gas or pipe line company or 
 any other person is not authorized to lay pipes on the 
 surface of the highway, as a public road must be kept free 
 from obstruction for travel within the limits of its 
 boundaries. 8 So where a natural gas company laid pipes 
 on the surface of a public highway and the joints of the 
 pipes for the conveyance of gas were poorly joined, so 
 that the pipes leaked and inexperienced persons caused 
 the gas to be set on fire at various times and, that, while 
 two boys were passing along the public highway, they 
 noticed the gas escaping on fire, and one of the boys who 
 was injured and brought the suit stated to the other that 
 if the pipe which was laying on the ground was raised 
 up, the escaping gas would make a nice fire; and the boy 
 who was told this attempted to raise the pipe and the 
 escaping gas exploded and tore the pipe apart and badly 
 injured both boys, the gas company was held liable for 
 the injuries received by the boy who told the other to 
 
 1. Kincaid vs. Indianapolis Nat. Gas Co., 124 Ind., 577. 
 
 2. Hamilton County Commissioners vs. Indianapolis Nat. Gas 
 
 Co., Ind., ; 33 N. E., 972. 
 
 3. Lebenon Light, Heat & Power Co. vs. Leap, 139 Ind., 443; 39 
 
 N. E., 57; Indiana Natural & Illuminating Gas Co. vs. Mc- 
 Maith, Ind. App., ; 57 N. E., 593. 
 
Damages. 95 
 
 lift up the pipe. l So where gas pipes were laid on the 
 surface of a public road and were there for a number of 
 years and weeds had grown over them and a person who 
 was moving a traction engine along the public highway 
 undertook to turn into a field, and went far to the oppo- 
 site side of the road in order to make the turn to enter 
 the field, but before doing so sent a man to examine the 
 condition of the road and such person did not discover 
 the pipes and the person who was moving the traction 
 engine was not a resident of the neighborhood and did 
 not know the pipes were there, and while the engine was 
 being moved, the same ran over the pipes which were on 
 the surface of the highway and the pipes were broken and 
 gas escaped and was set on fire by the fire in the traction 
 engine and the person moving the traction engine was 
 badly burned, the gas company was held liable for dam- 
 ages, as it was unlawful to lay the pipes on the surface 
 of the highway and it was no excuse for the company 
 that the accident could not have been foreseen. 2 And a 
 complaint is sufficient which states that a natural gas 
 company placed pipes on the surface of a highway for 
 the conveyance of natural gas and allowed them to be- 
 come covered with weeds and the person injured drove a 
 traction engine over such pipes without negligence and 
 broke the pipe, and gas caught fire and exploded and 
 injured the plaintiff. 3 Under a statute providing that a 
 gas company shall be liable for any damages which may 
 result from the transportation of "natural gas," a natural 
 gas company was held to be liable for damages to a per- 
 son who was without fault, and the liability on the part 
 of the company was absolute if the gas escaped from 
 pipes on the street and the person injured did not con- 
 tribute to the injury. 4 So where a natural gas company 
 
 1. Lebenon Light, Heat & Power Co. vs. Leap, 139 Ind., 443. 
 
 2. Indiana Nat. & Ilium. Gas Co. vs. McMaith, Ind. App., ; 
 
 57 N. E.,593. 
 
 3. Indiana Nat. & Ilium. Gas Co. vs. McMaith, supra. 
 
 4. Ohio Gas Fuel Co. vs. Andrews, 50 Ohio St., 695; 29 L. R. A., 
 
 337. 
 
96 Escape of Gas. 
 
 lays its pipes on the bed of a navigable river (which is a 
 public highway in the broad sense of the term) the com- 
 pany must lay its pipes so that they will not come in 
 contact with boats which may be using the river. And 
 where the pipes are so laid that they come in contact 
 with a passing boat and cause an injury to the boat, 
 the company is liable for damages to the owner of the 
 boat. 1 And where a gas company was authorized to 
 place posts on the street to furnish gas to a city, such 
 company cannot lawfully keep the posts on the streets 
 after the city had discontinued to use gas from the com- 
 pany and the keeping of them there is an obstruction on 
 the street and make it liable for damages. 2 
 
 SEC. 11. ESCAPE OF GAS IN A STREET INJURIES 
 CAUSED THEREBY. Gas is classed among the dangerous 
 agencies and no standard rules of law can be laid down 
 governing such agencies, but every precaution suggested 
 by experience and known dangers of gas ought to be 
 taken into consideration and the law requires of a gas 
 company, that its pipes and fittings should be of such 
 material and workmanship and laid in the ground with 
 such care and skill so as to prevent the escape of gas 
 therefrom when new and a system of inspection should 
 be maintained so as to discover any leak in a pipe there- 
 after with promptness, by men with ordinary skill in the 
 business. 3 That the escape of gas from a pipe is evi- 
 dence of negligence without explanation, 4 so where gas 
 
 1. Omslear vs. Philadelphia Co. (D.C.W.D.Pa.),31 Fed.R., 354. 
 
 2. New Orleans Gas Light Co. vs. Hart, 40 La. Ann., 474; 4 So., 
 
 215. 
 
 3. Koelsch vs. Philadelphia Co., 152 Pa., 355; 18 L. R. A., 759; 
 
 25 Atl., 522; Consolidated Gas Co. vs. Crocker, 82 Md.,113; 
 33Atl.,423; Klebe vs. Philadelphia Co., 105 Pa., 41; Holly 
 vs. Boston Gas Light Co., 8 Gray, 123; Smith vs. Boston 
 Gas Light Co., 129 Mass., 318. 
 
 4. Koelsch vs. Philadelphia Co., 152 Pa., 355; Smith vs. Boston 
 
 Gas Light Co. ,129 Mass. , 318 ; Tiehr vs. Consolidated Gas Co. , 
 51 App. Div., 446; Consolidated Gas Co. vs. Crocker, 82 
 Md., 113; 34 Atl., 423; 31 L. R. A., 785; Rockford Gas Light 
 & Coke Co. vs. Ernst, 68 111. App., 300. 
 
Injuries. 97 
 
 escapes from the mains in a public street and finds its 
 way through the loose ground into a sewer and then to 
 the cellar of a house and the house is wrecked by an ex- 
 plosion of the gas, the gas company is liable. * So where 
 the jury were instructed that if a gas company brought gas 
 into the streets of a city through its mains and thatjthe^ 
 gas caused the injury complained of by exploding, such 
 facts would justify an inference that the gas company 
 was negligent in the absence of proof that the injury 
 was caused by other agencies, the instruction was not ob- 
 jectionable with other instructions, that the questions to 
 be determined, as they may understand from the evidence, 
 arguments of counsel and other instructions given, were 
 whether the accident was caused by the negligence of 
 the defendant employees and whether through their neg- 
 ligence gas found its way into the manhole, and was 
 ignited and caused the explosion. 2 So an instruction 
 states the law correctly which tells the jury that, if just 
 prior to the explosion, gas, in sufficient quantities to 
 cause an explosion, was present in the manhole, and 
 the circumstances and conditions preceding and follow- 
 ing the presence of such gas in the manhole and, especi- 
 ally, the coincidence, when the break in the pipe had 
 been reported, were such to exclude theories other than 
 the plaintiff's theories, tracing the origin of the explod- 
 ing gas to a break in the defendant's pipe, then the jury 
 may find for the plaintiff, where the evidence was that two 
 weeks prior to the explosion, gas was discovered in a 
 sewer manhole, and that immediately after the explosion 
 a leak was discovered close to the explosion and the 
 pipe was rejoined and no gas was found thereafter, and 
 the company was informed some days before the explos- 
 ion of the presence of gas, though no gas could be found, 
 but the gas escaping could permeate the ground under 
 the surface and there was no other place for gas to come 
 from but from the pipes of the gas company. 3 So where 
 
 1. Koelsch vs. Philadelphia Co., 152 Pa., 355; 25 Atl., 522. 
 
 2. Tiehr vs. Consolidated Gas Co., 51 App. Div., 446. 
 
 3. Tiehr vs. Consolidated Gas Co., 51 App. Div., 446. 
 
98 Negligence of Owner. 
 
 gas escapes from the pipes in the street to an adjacent 
 dwelling' and causes damages, and the leak in the pipe 
 was there for some days, the proprietor of the pipes is 
 guilty of inexcusable negligence in not discovering the 
 leak and is liable for the death of a person from asphyx- 
 iation caused by the gas, for when pipes are laid on 
 the street, or on a public highway, a gas company must 
 use ordinary care in putting down its pipes. l And such 
 a duty is imposed upon a gas company, so that the prop- 
 erty along the line will not be injured, or the safety of 
 people will not be endangered, and where the gas escapes 
 from a defect in the pipe, under ground, and finds its 
 way to the house of an adjoining owner, a gas company 
 is liable for damages caused by the explosion of the es- 
 caped gas. 2 
 
 SEC. 12. ESCAPE OF GAS FROM A STREET MAIN OR 
 PIPE. Where the employee of a gas company was in- 
 formed of the presence of gas in the cellar of a build- 
 ing, and such employee promised to remedy the defect 
 and caused another employee to change the gas meter in 
 the building and took it for granted that the change in 
 the meter would cause the leakage to cease, and neither 
 employee found the real cause of the leakage, and an 
 explosion occurred from a light being brought in contact 
 with the escaping gas, the gas company will be deemed 
 guilty of negligence for not discovering the leak of gas 
 from the street pipes through the ground to the building, 
 and the company is bound to use reasonable efforts with- 
 in a reasonable time to discover the cause of the leakage 
 and will be judged guilty of negligence for not doing 
 so. 3 A gas company was also held liable for an explo- 
 sion where a pipe line was constructed from a natural 
 gas well along the streets of a city and where the gas es- 
 caped from a sleeve in the gas pipe and filled the ground 
 with gas which passed under the ground to the opposite 
 
 1. Otterbach vs. Philadelphia, 161 Pa., Ill; 28 AtL, 991. 
 
 2. Mississenewa Min. Co. vs. Patton, 129 Ind., 472; 28 N. E. 1113. 
 
 3. Consolidated Gas Co. vs. Crocker, 82 Md. 113; Mose vs. Hast- 
 
 ings & St. L. Gas Co., 4 Foster & F., 324. 
 
Negligence of Servants. 99 
 
 side of the street, and which was confined within the 
 ground because the surface was frozen, and passed into 
 the cellar of a dwelling- house and was there ignited by 
 a lamp and destroyed the house and injured an occupant, 
 where the company bought the line from another com- 
 pany and gas escaped^ therefrom for six years, and three 
 of the years the defendant company owned the pipe- 
 line. 1 A natural gas company is liable for the damages 
 caused by the escape of gas, when it knew, or could 
 have known by the exercise of ordinary care, of the de- 
 fects, and the gas which caused the explosion leaked at 
 a certain point for a long time, 2 though such company 
 is not liable for defects in the original construction, 
 when it purchased the pipe line; 3 but a gas company has 
 been held liable for defects in the original construction 
 because they are charged with the duty to keep it in a 
 safe condition, as it is the gas and not the pipe which 
 causes the nuisance. 4 So where the owner of a building 
 places gas pipes therein, and a company furnishing arti- 
 ficial gas makes the connection with its main pipes in 
 the street, but in making the connection the company 
 puts in a defective pipe and gas escaped therefrom, and 
 the gas company was informed of the escape of gas and 
 sent an employee to repair the pipe, and gas afterwards 
 escaped and entered the house and the company sent a 
 person to repair the defect, and gas escaped thereafter 
 and an employee of the company assured the owner o. 
 the house there was no danger, the gas company is guil 
 ty of negligence to a person who occupied the house as 
 a member of the family, for the damages caused by an 
 explosion. 5 And where a gas company applied a torch 
 
 1. Consumers Gas Trust Co. vs. Perrigo, 144 Ind., 350; 43 N. E., 
 
 306; 32 L. R. A., 146. 
 
 2. Consumers Gas Trust Co. vs. Corbaley, 14 Ind. App., 549; 43 
 
 N. E., 237; Consumers Gas Trust Co. vs. Perrigo, supra. 
 
 3. Consumers Gas Trust Co. vs. Corbaley, supra. 
 
 4. Dow vs. Winnepesaukee Gas, etc., 69 N. H., 312; 42 L. R. A., 
 
 569; 41 Atl.,288. 
 
 5. Richmond Gas Co. vs. Baker, 146 Ind., 600; 45 N. E., 1049; 36 
 
 L. R. A., 683. 
 
100 Injuries by Third Persons. 
 
 to gas which was escaping in the street and there were a 
 number of defects in the mains of the gas company, and 
 the company had knowledge of such defect, and the fire 
 was communicated from the street to the cellar, which was 
 filled with gas from the defects, and an explosion occurs 
 and causes damages, the gas company is liable though 
 the defects were caused by the city in building a sewer; 1 
 but it has been held that where an employee of a gas 
 company place a lighted taper on and along the sur- 
 face of the ground on the street for the purpose of discov- 
 ering a leakage of gas, and the light was communicated 
 to the cellar of a property owner through a sewer under 
 the ground, and the employee who lit the taper had no 
 knowlege of the sewer and an explosion occured in the 
 cellar which contained gas, the owner of the gas works 
 is not liable if the test was the usual one, and the persons 
 whose property was injured has the burden of showing 
 that it was not the usual way of making the test.* 
 
 SEC 13. PIPES INJURED BY THIRD PERSONS. A 
 gas company is charged with the duty to keep its pipes 
 in good repair and must maintain a system of inspection 
 to see that its pipes are in a safe condition, and it is 
 no excuse for a gas company that its pipes have been in- 
 jured by the act of a third person. 8 So where a gas com- 
 pany had notice, or could have notice, that its pipes were 
 injured by the plowing up of a street and that gas was es- 
 caping, the company should have used precaution to 
 prevent the escape of gas, and should shut off the gas 
 and repair the leak to avoid injuries to persons and 
 property. 4 So where a person was injured by inhaling 
 
 1. Aurora Gas Light Co. vs. Bishop,"81 111. App., 493. 
 
 2. Littman vs. City of N. Y., 159 N. Y., 559; 54 N. E., 1093; 36 
 
 App.,Div.l89. 
 
 3. Pine Bluff Water & Light Co. vs. Schneider, 62 Ark., 109; 34 
 
 S. W., 547; 33 L. R. A., 366; Butcher vs. Providence Gas 
 Co., 12 E. I., 149; 34 Am. Rep., 626; Greanley vs. Holyoke, 
 Water Co., .174 Mass., 437; 54 N. E., 880. 
 
 4. Pine Bluff Water & Light Co. vs. Schneider, supra; Chisholm 
 
 vs. Atlantic Gas Light Co., 57 Ga., 28; Butcher vs. Provi- 
 dence Gas Co., 12 R. I., 149. 
 
Injuries. 101 
 
 gas from a defective pipe in the street, and the defect 
 was caused by the settling of the ground around the pipes 
 in the street, caused by a construction of a sewer near 
 the pipes by the city, a gas company is liable, when it 
 could have learned of the defective condition by applying 
 proper tests, and, in this case, where the gas had been se- 
 caping for a day, until discovered by a third person the 
 gas company did not know the sewer was constructed, the 
 plaintiff is entitled to the submission of the question of 
 negligence on the part of the gas company to the jury. * 
 So where a gas box was placed on a sidewalk by a gas 
 company, at the expense of the owner of an adjoining 
 building and an explosion occurs, which injures a person 
 on the sidewalk, the company is liable, though the dan- 
 ger was increased by the city widening the sidewalk; a 
 and, when, in such a case, a judgment is recovered against 
 the city for damages, the city can recover such judgment 
 against the gas company and a judgment by the person 
 injured is conclusive against the gas company in a suit 
 by the city against the gas company if the latter had no- 
 tice and an opportunity to defend. 8 And where a city is 
 engaged in the distribution of gas through pipes in the 
 street and the pipes are injured and gas escapes and an 
 explosion occurred for which the city was held liable, 
 the city, in such case, may hold the person who injured 
 the pipes liable, 4 and when the act of a third person 
 was the cause of an injury and the owner of the gas was 
 sued and a judgment was recovered and an appeal was 
 taken, a compromise of the case pending the appeal will 
 not prevent a recovery by the gas company against the 
 person who caused the defect or injured the pipe. 6 
 
 1. Greanley vs. Holyoke Water Co., 174 Mass., 437. 
 
 2. District of Columbia vs. Washington Gas Light Co., 19 Wash- 
 
 ington Law E. , 354. 
 
 3. Washington Gas Light Co. vs. D. C., 161 U. S., 316. 
 
 4. Philadelphia Co. vs. Central Traction Company, 165 Pa., 456. 
 
 5. Philadelphia vs. Central Traction Co., 165 Pa., 456; 30 Atl., 
 
 934. 
 
102 Explosive Nature. 
 
 SEC. 14. JUDICIAL NOTICE OF EXPLOSIVE CHAR- 
 ACTER OF GAS. TEST OF PIPES. The courts will take 
 judicial notice of the explosive character of gas and that 
 the same is combustible; 1 and when the statutes provide 
 that the gas in the pipes must be submitted to a certain 
 pressure to test the durability of the pipes, and the com- 
 pany fails to make the test and gas escapes from its 
 pipes in the streets and causes an explosion, the gas 
 company is liable. 2 So where crude pretroleum escapes 
 and is subjected to heat it is a matter of ordinary scien- 
 tific knowledge that combustible gases arise from the 
 oil and the courts will take judicial notice thereof. 8 
 
 SEC. 15. DAMAGE TO TREES AND CROPS CAUSED BY 
 ESCAPING GAS. When a natural gas company lays its 
 pipes along a street and the pipes are defectively jointed 
 and gas escapes from the pipes and permeates the ground 
 and absorbs the moisture therefrom and causes shade 
 trees to die, the gas company is liable for the value of 
 the shade trees to the owner of the land. 4 And the lia- 
 bility of the company is sufficiently established by evi- 
 dence that gas was escaping after the pipe line was laid 
 and that soon after the trees began to die, and that after 
 the pipe line was taken up and the joints cemented and 
 the gas ceased to escape, trees were planted in the place 
 of those which had perished and they grew vigorously. 5 
 And a gas company is liable for the injury to plants in a 
 greenhouse caused by the escape of gas from its pipes, 
 and that it is no defense for such an injury that it had 
 purchased the gas plant and pipes and had no notice of 
 the defective condition of the pipes, since the gas com- 
 pany's liability is not dependent upon its knowledge of 
 
 1. Alexandria-Min. & E. Co. vs. Irish, 16 Ind. App., 534; 44 N. E., 
 
 680. 
 
 2. Alexandria Min. & E. Co. vs. Irish, supra. 
 
 3. Fuchs vs. St. Louis, 133 Mo., 168; 31 S. W., 115; 34 L. R. A., 
 
 118. 
 
 4. Evans vs. Keystone Gas Co., 148 N. Y., 112; 30 L. R. A., 651; 
 
 Butcher vs. Providence Gas Co., 12 R. I., 149. 
 
 5. Evans vs. Keystone Gas Co., 148 N. Y., 112. 
 
Negligence of Persons Injured. 103 
 
 the pipes defective condition or the gas escaping 1 , but 
 upon the observance or neglect of care by^the gas com- 
 pany. 1 
 
 SEC. 16. NEGLIGENCE OF THE PERSON INJURED. 
 WHEN A BAR TO A RECOVERY. In an action for dam- 
 ages against a gas company, the person who brings the 
 action must not be guilty of negligence which contrib- 
 uted to the injury, because the action is grounded upon 
 negligence and each must perform the duty of not being 
 negligent.* So when the person injured by gas escaping 
 on a street and thence into a sewer and the person in- 
 jured was a man who had experience as to the explosive 
 character of gas, he cannot recover when the gas was 
 set on fire by him while searching for the leak. 3 So 
 when gas had for a long time been escaping into a cellar 
 and the owner of the place was informed of that fact, 
 and directed a person to go into the cellar with a light 
 and an explosion occurs, the negligence of the plaintiff 
 will prevent a recovery, since the introduction of the 
 light into the cellar, where the gas was, was the proxi- 
 mate cause of the injury; 4 but where a person entered a 
 cellar and caused matches to be lit in the cellar to light 
 a lamp and a gasoline stove, and no explosion occurred 
 until some ten minutes after the entry into the cellar 
 and the lamp burning in the cellar was not injured and 
 gas jets at the head of the stairway leading to the cellar 
 were observed to burn a bluish flame immediately before 
 the explosion occurred, the proximate cause of the injury 
 was held to be the escaping of gas. 5 The Court said, "In 
 
 1. Dow vs. Winnepesaukee Gas & E. Co., 69 N. H., 312; 42 L. 
 
 R. A., 569; 41 Atl., 288. 
 
 2. Hunt vs. Lowell Gas Co., 1 Allen, 343; Oil City Fuel Supply 
 
 Co. vs. Boundy, 122 Pa., 449; Oil City Gas Co. vs. Robinson, 
 99 Pa., 1; Lanagen vs. New York Gas Light Co., 71 N. Y., 
 29; Consolidated Gas Co. vs. Crocker, 82 Md., 113; Pine 
 Bluff Water & Light Co. vs. Schneider, 62 Ark., 109; 34 
 S. W.,547; 33 L. E. A., 366. 
 
 3. Oil City Gas Co. vs. Robinson, 99 Pa., 1. 
 
 4. Lanagan vs. New York Gas Light Co., 71 N. Y., 29. 
 
 5. Consolidated Gas Co. vs. Crocker, 82 Md., 113; 31 L.R. A.,785. 
 
104 Negligence of Servant. 
 
 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 exclu- 
 sion of any other reasonable hypothesis, the relation of 
 cause and effect, the question as to what caused the ex- 
 plosion 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 when, as here, the lamp itself was unin- 
 jured, it would be impossible for the court to assume 
 that the lighted lamp caused the explosion, and to rule, 
 as a conclusion of law, that the 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." 1 
 
 SEC. 17. NEGLIGENCE OF A SERVANT BARS RECOV- 
 ERY. QUESTIONS FOR THE JURY. Where gas escaped 
 from the pipes of a gas company from the street to a 
 store and the servant of the owner of the store struck 
 matches to ascertain whether gas was escaping from the 
 pipes in the store, and the gas exploded and injured the 
 store, and the owner, in an action to recover damages from 
 the gas company, set up that the gas company was guilty 
 of negligence in permitting gas to escape, and that the 
 servant who struck the match was also guilty of negli- 
 gence, the owner of the store was held to be barred from 
 a right to recover because of the negligence of his ser- 
 vant in striking the match and causing the gas to ex- 
 plode, and the allegation and finding of the jury were 
 conclusive against the owner of the property. 2 The 
 
 1. Consolidated Gas Co. vs. Crocker, 82 Md., 113; 31 L. R. A., 785. 
 
 2. Pine Bluff Water & Light Co. v. Schneider, 62 Ark., 109; 33 
 
 L. B. A., 366. 
 
Consent of City. 105 
 
 court, however, would not hold that it is negligence 
 per se for a person to strike a match to discover the leak- 
 age of gas without notice that gas was escaping in large 
 or small quantities, but if such person had notice that 
 gas was escaping in large quantities, it would be gross 
 carelessness to apply a lighted match to it; "but if the 
 quantity was small, or if there was nothing to cause a 
 man of ordinary prudence placed in the same situation 
 to believe there was danger of an explosion, it would not 
 be negligent to light a match, such question is one for 
 the jury to determine." 1 The question whether the per- 
 son injured was negligent in not giving notice to the com- 
 pany is also for the jury. 2 
 
 SEC. 18. CONSENT OP CITY TO LAY PIPES SIDE- 
 WALKS PART OF THE STREET CONTROL OF STREETS BY 
 CITY INJURIES TO PEDESTRIANS OR TRAVELERS. Un- 
 der the Pennsylvania Act of May 29, 1885, a natural gas 
 company which was chartered and doing business, be- 
 fore the act was passed, in the transportation and dis- 
 tribution of natural gas, has no right to enter upon the 
 streets of a city without the consent of the city; and 
 the acceptance of the provisions of that act, forbidding 
 gas companies organized under it, to enter upon or lay 
 any pipes in the streets of any borough, without the 
 assent of the borough council, unless they were then en- 
 gaged in transporting natural gas; and another section 
 of the act provides that no corporation accepting its 
 provisions shall be permitted to enter any borough with- 
 out the assent of the council, unless such company had 
 been engaged in supplying natural gas or had laid its 
 pipes on the street for that purpose. 8 And though such 
 
 1. Pine Bluff Water & Light Co. v. Schneider, 62 Ark., 109; 
 
 Chisholm vs. Atlantic Gas Light Co., 57 Ga., 28; Butcher vs. 
 Providence Gas Co., 12 R. I., 149; Lanagan vs. N. Y. Gas 
 Light, 71N.Y., 29; Kibelevs. Philadelphia, 105 Pa., 41; Ot- 
 tersbach vs. Philadelphia, 161 Pa. , 111; Holly vs. Boston Gas 
 Light Co., 8 Gray, 123; Emerson vs. Lowell, 3 Allen, 410. 
 
 2. Hunt vs. Lowell Gas Light Co., 1 Allen, 343. 
 
 3. Philadelphia Co. vs. Freeport, 167 Pa., 279; 31 Atl., 571. 
 
106 Control of Streets by City. 
 
 companies cannot enter without the assent of the city or 
 borough, yet the borough or city cannot impose any re- 
 striction on the gas company not imposed by the act 
 itself, and must either give or refuse assent without any 
 restriction. 1 So when a gas company was supplying 
 gas under the Pennsylvania Act of 1874, and had its 
 pipes on the streets and then became incorporated under 
 the act of 1885, no further consent of the city is neces- 
 sary. 2 The sidewalks of a city are part of the street and 
 a city may lay pipes therein and give others the right 
 the same as other portions of the street. 3 A city may 
 prevent gas companies from laying gas pipes in the 
 street during the winter months, so as not to cause the 
 streets to become obstructed. 4 When a gas company 
 was organized under the Pennsylvania Act of 1885 and 
 laid its pipes in the streets of a borough, the borough 
 cannot have the gas company perpetually enjoined, on 
 the ground that the gas company did not get consent 
 from the borough and that the pipes are defective where 
 the answer of the gas company denied these allega- 
 tions. 8 A city which gives a gas company a right to lay 
 pipes in the street has authority to impose such restric- 
 tions on the gas company as will assure the city that 
 the work is done properly. 6 In laying its pipes on the 
 streets a gas company is liable for an injury caused by 
 a vehicle turning over and injuring the occupant; 7 and 
 where a gas company in connecting its main with the 
 service pipe of a consumer places a flagstone over an 
 excavation made in order to effect the connection and a 
 person is injured without negligence, and there was no 
 excuse for so laying the flagstone over the excavation, 
 
 1. Pittsburgh's App., 115 Pa., 4. 
 
 2. Allegheney's App. vs. Charities Valley Gas Co., Pa., ; 
 
 llAtl.,658. 
 
 3. McDavitt vs. Philadelphia Gas Co., 160 Pa.. 367; 28 Atl., 948. 
 
 4. North Liberties Corns, vs. North Liberties Gas Co., 12 Pa., 318. 
 
 5. Butler vs. Butler Gas Co., Pa., ; 5 Cent., 669. 
 
 6. City of Kalamazoo vs. Kalamazoo Gas Co., 82 N. W., 811. 
 
 7. Goodson vs. Sunbury Gas Consumers Co., 75 Law Tenn., R. 
 
 251. 
 
Control of City Over Mains. 107 
 
 the gas company is liable for the injury; 1 but under an 
 ordinance which provides that the gas company in lay- 
 ing- its pipes on the streets should restore the street to 
 its former condition, as near as may be, and as soon as 
 possible, and the company did as the ordinance required, 
 the company is not bound to keep the street in repair 
 and is not liable for injuries to a person caused by the 
 sinking of the earth where the excavation was made.* 
 
 SEC. 19. CONTROL OVER THE MAINS BY THE CITY 
 EXTENSION OF THE MAINS WHEN THE COMPANY AC- 
 QUIRES THE RIGHT TO LAY ITS PIPES ON THE STREET. 
 When an ordinance provided that the gas company 
 should lay its pipes at a depth of two and one half feet 
 and also provided that the right was subject to all ordi- 
 nances previously, or which thereafter may be passed, 
 the laying of such pipe is subject to the supervision of 
 the street commissioner, where an ordinance was passed 
 previously placing the laying of such pipes under his 
 supervision. 3 
 
 A city council may require a gas company to extend 
 its main through other streets where such right is re- 
 served upon a petition; and a majority of the owners and 
 occupants of land petition for such extension and ten 
 per cent of the petitioners agree to take gas, as is re- 
 quired as a condition precedent, where the gas company 
 has the exclusive right to furnish the city and its people 
 with gas, and the gas company may be required to ex- 
 tend its mains at its own expense, as public necessity 
 may require it; 4 but when an ordinance requires a gas 
 company to extend its mains, if the gas company has not 
 the physical or financial means to perform the work, the 
 company is not liable for the penalty provided in the 
 
 1. Whalen vs. Citizens Gas Light Co., 63 N. Y. Rep., 317. 
 
 2. G-rundy vs. Janesville, 84 Wis., 574; 54 N. W., 1085. 
 
 3. Wilkinsburg Gas Co. vs. Wilkinsburg (Pa. C. B.), 25 Pitts. 
 
 L. J. N. S., 42. 
 
 4. Indianapolis vs. Consumers Gas Trust Co., 140 Ind., 107; 39 
 
 N. E., 943; Pensaeola Gas Co. vs. Pensacola, 33 Fla., 322; 
 14 So., 826. 
 
 UNlVERSi 
 
108 Exclusive Eight. 
 
 ordinance; 1 and where a city is largely in arrears for gas 
 furnished, the city cannot require the company to make 
 further expenditures in its behalf in extending- its 
 mains. * 
 
 A gas company has no right to lay pipes on the 
 street, where the ordinance, which gave it the right to 
 lay pipes on the street, provided that the company should 
 own one gas well before the pipes are laid and no well 
 was yet owned, and another company is not relieved 
 from furnishing gas free to the city, while it has the ex- 
 clusive right to furnish gas until the well is acquired by 
 the former company. 8 
 
 SEC. 20. EXCLUSIVE RIGHT. Where a gas company 
 is organized under the general laws of Ohio and has a 
 right to lay pipes on the streets and furnish the city 
 with gas, it has no exclusive privileges. 4 So where a 
 statute or the constitution of the state provides that 
 monopolies are illegal, a city cannot give a gas corpora- 
 tion the exclusive right to lay its pipes in the streets of 
 a city; 6 and where a gas company has no exclusive right 
 to furnish gas it cannot complain because the city builds 
 its own gas works, though the gas company had for 
 many years the sole right to furnish gas. 6 And where 
 the legislature does not confer upon a city the right to 
 give a gas company the exclusive right to furnish gas a 
 city has no power to do so. 7 But where an exclusive 
 privilege is legally given to a gas company for a number 
 of years and the city has undertaken to grant a similar 
 right to another company, the city will be restrained by 
 injunction from granting such right, 8 though when an 
 
 1. Indianapolis vs. Consumers Gas Trust Co., 140 Ind., 107. 
 
 2. Pensacola Gas Co. vs. Pensacola, 33 Fla., 322. 
 
 3. Newark Gas & Fuel Co. vs. Newark, 7 Ohio N. P., 76. 
 
 4. Hamilton Gas Light & Coke Co. vs. Hamilton, 37 Fed. R., 832. 
 
 5. Hamilton Gas Light & Coke Co. vs. Hamilton, 37 Fed. R., 832. 
 
 6. State Atty. Gen. vs. Hamilton, 47 Ohio St., 52. 
 
 7. Parkersburg Gas Co. vs. Parkersburg, 30 W. Va., 435; 4 S. E., 
 
 650; Capil, C. L. & F. Co.vs. Talahassee, (Fla.) 28 So., 810. 
 
 8. Newport vs. Newport Light Co., 84 Ky., 166. 
 
Monopolies. 109 
 
 exclusive privilege has been held to create a monoply, 
 an injunction would not lie; 1 or that the granting of such 
 a right was legislative in its character of equity a court 
 had no control over a legislative discretion of the city 
 council. 8 
 
 And where such a use is given, that is to lay pipes 
 and furnish gas, no other use will be implied and before" 
 the company can use any other means of lighting, con- 
 sent from the city must be obtained. 8 A gas company 
 has no exclusive privileges to use the streets simply be- 
 cause such company is authorized to lay its pipes on the 
 streets and the city agrees to take a certain amount of 
 gas from the company for a certain time, from lamps 
 placed on such streets by the gas company. 4 Nor has a 
 gas company chartered by the legislature any exclusive 
 rights where it was required to furnish gas within three 
 years to the city and its people and was authorized to 
 make and sell gas for fifty years. 6 
 
 SEC. 21. MONOPOLIES. Gas companies having a 
 right to use the streets of towns and public highways 
 for the transportation of gas to supply cities and the 
 public cannot barter away their right to do business; nor 
 can they sell or assign its corporate rights to another 
 company without consent from the legislature. 6 The 
 business of supplying illuminating gas is a business of a 
 public nature and to meet a public necessity, so when two 
 gas companies in the same city agree that one of the 
 companies shall cease furnishing gas to part of the pub- 
 lic and that gas shall not be sold below a certain price 
 
 1. Norwich Gaslight Co. vs. Norwich Gas Co., 25 Conn., 19. 
 
 2. Des Moines Gas Co. vs. Des Moines, 44 la., 505; Montgomery 
 
 Gas Light Co. vs. Montgomery, 87 Ala., 245; 4 L. R. A., 616. 
 
 3. Newport vs. Newport Light Co., 11 Ky. L. R., 840; 12 S. W., 
 
 1040. 
 
 4. Vincennes vs. Citizen Gas Light & Coke Co., -132 Ind., 114; 31 
 
 N. E.,573; 16 L. R. A., 485. 
 
 5. Memphis Gayaso Gas Co. vs. Williamson, 9 Heisk (Tenn.) , 314. 
 
 6. Brunswick Gas Light Co. vs. United Gas & Fuel Co., 85 Me., 
 
 532; 35 Am. St. R., 385; 27 Atl., 525; Chicago Gas Light & 
 Coke Co. vs. People's Gas Light & Coke Co., 121 111., 530. 
 
110 Monopolies. 
 
 without the consent of the other company, the agree- 
 ment is illegal and void, especially when a statute pro- 
 hibits one of the companies from entering 1 into such 
 contract. 1 So where two gas companies which have a 
 right to lay their pipes in the streets of a city enter into 
 an agreement that one will exchange its pipes, in a 
 certain part of the city, for the pipes of the company in 
 another part of the city, and that neither company would 
 lay pipes in the parts so surrendered for a period of one 
 hundred years, and would not interfere with the rights 
 of the other in the parts of the city so designated, such 
 a contract is void as a partial restraint of trade. 
 
 The court in that case said: "The ordinary rule that 
 contracts in partial restraint of trade are valid does not 
 apply to corporations like appellant and appellee, be- 
 cause they are engaged in a public business and furnish- 
 ing that which was a matter of a public concern to all 
 the inhabitants of the city." 8 So where a pipe line com- 
 pany receives authority from the legislature to condemn 
 land for the transportation of gas or oil through the 
 pipes, the legislature stamps such pipe line as a concern 
 in which the public has an interest and a contract with 
 the owner of the land not to give any other similar com- 
 pany a right of way over the land is void, as the contract 
 is in partial restraint of trade. 8 "So, if by taking pri- 
 vate property under the power of eminent domain, after 
 paying the owner therefor, stamps the business of a public 
 character, that the business may not be restrained by 
 contract, the court could see no reason" why the public 
 character should not attach to a corporation which is 
 vested with the right and power to tear up and use the 
 streets of a great city. "The fee of tlie streets is vested 
 in the city for the benefit of the public; any business 
 which requires their use requires the use of property 
 
 1. Gibbs vs. Consolidated Gas Co., 130 U. S., 386. 
 
 2. Chicago Gas Light Co. vs. People's Gas Light Co., 121 111., 545. 
 
 3. West Virginia Transportation Co. vs. Ohio River Pipe Line Co. , 
 
 22W.Va.,617. 
 
Oil Monopolies. Ill 
 
 which belongs to the public." 1 So when two gas com- 
 panies, the only companies in a city, agree on a certain 
 price to be charged consumers, and one company would 
 not furnish gas to the customers of the other, it is an abuse 
 of its corporate rights and powers and is a ground tor 
 the forfeiture of its charter. 2 So when all the gas and 
 electric light plants are united under one management 
 it is in violation of the Texas Anti-Trust Laws, and their 
 charters may be taken away for entering into such a 
 trust. 3 
 
 SEC. 22. OIL MONOPOLIES. Where an agreement 
 is entered into by a majority of the stockholders of a 
 corporation organized for the purpose of purchasing, re- 
 fining and marketing petroleum oil, and such an agree- 
 ment provided that the stock should be transferred to 
 certain trustees and that other companies and partner- 
 ships interested in the production, refining and market- 
 ing of petroleum shall do likewise, and that the said trus- 
 tees to whom the stock was transferred should hold the 
 stock of the various companies in trust for the benefit 
 of the stockholders, and that in place of the stock sur- 
 rendered to the trustees the various stockholders would 
 receive trust certificates to the amount of stock held by 
 each and equal to the par value of the stock and interest 
 in the other concerns, and the trustees who held the 
 stock had power to elect the directors of the various 
 companies, and control the various companies, corpora- 
 tions and partnerships and the trustees for the various 
 corporations, companies and partnerships were em- 
 powered to collect and receive all the earnings of the 
 various companies and place all the earnings in a common 
 fund and the dividends were to be divided according to 
 
 1. Chicago Gas Light Co. vs. People's Gas Co., 121 111., 545. See 
 
 also Western Union Tel. Co. vs. Am. Union Tel. Co., 65 Ga., 
 160. 
 
 2. State, Snyder vs. Portland Natural Gas & Oil Co., 153 Ind., 483; 
 
 53 N. E.,1089. 
 
 3. San Antonio Gas Co. vs. State, 22 Tex. Civ. App., 118; 54 
 
 S. W.,289. 
 
112 Oil Monopolies. 
 
 the holding's of each of the trust certificates, such an 
 agreement is void as creating a monopoly to control 
 production and prices of petroleum, and is void at com- 
 mon law. 1 And where such an agreement is made by all 
 or a majority of the stockholders of all the concerns, as- 
 sent to such an agreement by them so the business of the 
 company is affected, is the same as if done by a resolu- 
 tion of the board of directors and such an agreement is 
 ultra vires of the corporation and against public policy 
 and was done in their individual capacity for the pur- 
 pose of covering up the real nature of the transaction. 
 The assent will be regarded as an act of the corporation 
 itself, because it is but a fiction of the law that a corpo- 
 ration has a separate and independent existence apart 
 from the persons who compose the corporation, and such 
 a fiction applies only for convenience in the transaction 
 of business by the corporation and persons who do busi- 
 ness with such corporation, and when there is no reason 
 why the fiction applies the fiction will be disregarded, 
 because it is not within the reason and policy of the law 
 that it should apply. 2 It is a rule of law, "that a fiction 
 of law shall never be contradicted, so as to defeat the 
 end for which it was invented, but for every other pur- 
 pose it may be contradicted." 3 So where a limited part- 
 nership was organized for the production and marketing 
 of petroleum, and was a rival of the "Standard Oil Trust," 
 and a stockholder of the "Standard Oil Trust" bought a 
 majority of the stock in the limited partnership for the 
 purpose of getting control of the limited partnership, so 
 that the same may be operated in the interest of the 
 "Standard Oil Trust," the purchaser of the stock in the 
 limited partnership can have no relief in equity where 
 
 1. State ex. rel. Watson vs. Standard Oil Co., 49 Ohio St., 137; 30 
 
 N. E.,279; 15 L. R. A., 145. 
 
 2. State ex. rel. Watson vs. Standard Oil Co., 49 Ohio, 137; Peo- 
 
 ple of N. Y. vs. North Sugar Ref. Co., 54 Hun., 355; 2 L. 
 R. A., 33; note, Same vs. Same, 121 N. Y., 582; Tyler on 
 Corporation, Sect. 51; Morawetz Corporation, Sect. 227. 
 
 3. Johnson vs. Smith, 2 Burr, 962. See also Richardson vs. Buhl, 
 
 77 Mich., 63. ; 6 L. R. A., 457; State vs. Standard Oil Co., 
 supra. 
 
Oil Monopolies. 113 
 
 the other members of the partnership refuse to recog- 
 nize his rights as a stockholder and refuse to elect the 
 purchaser as a member of the partnership and the pur- 
 chaser has no rights as a member unless so elected under 
 a rule of the partnership and the rule is in conformity 
 with a statute of the state where the partnership was 
 organized and doing business. * 
 
 SEC. 22. THINGS WHICH A GAS COMPANY MAY SELL 
 TO ITS CUSTOMERS. A corporation may deal in things 
 which promote the general interest of the corporation, 
 and it will not be beyond the scope of its powers. So 
 where a company is organized to manufacture and sup- 
 ply illuminating gas and distribute the same, such com- 
 pany may deal in heaters, radiating metals and appli- 
 ances which are used in the consumption of gas. 2 
 
 1. Carter vs. Producers Oil Co., 182 Pa., 551; 39 L. R. A., 100. 
 
 2. Malone vs. Lancaster Gas Light & Fuel Co., 182 Pa., 309; 37 
 
 Atl., 932. 
 
LIENS. 
 
 CHAPTER X. 
 
 SECTION 1. LIENS FOR SINKING WELLS. The right 
 to a lien for labor and materials furnished in the sinking 
 of oil and gas wells and for repairs placed on the 
 machinery has been held to lie under the general me- 
 chanic's lien law, which law provided, that when any 
 person performs labor or furnishes material for the 
 erection of any house, mill, manufactory, or other build- 
 ing or other structure, he is entitled to a lien. The word 
 structure is broad enough to include oil and gas wells and 
 a lien attaches for labor done and materials furnished 
 in the construction of an oil or gas well. * The same rule 
 has been applied when a well was constructed with the 
 view of furnishing water for domestic purposes under a 
 statute giving a lien for the erection or construction of 
 any building or improvement on the land, for labor and 
 material, and in the erection and construction of such 
 building or improvement and such lien to attach both to 
 the improvements and the land. 2 A lien for labor and 
 material furnished has been denied where a water well 
 was sunk under a statute giving a lien for labor and 
 material furnished in the erection of any house, mill, 
 manufactory or building or appurtenances. 8 
 
 SEC. 2. LEASE HOLD. LIEN ON SUCH ESTATE. 
 A conveyance to a person, his heirs and assigns, for 
 the purpose of drilling or mining for oil for a period of 
 
 1. Haskell vs. Gallagher, 20 Ind. App., 224; 50 N. E., 485; 67 
 
 Am. St. R.,250.' 
 
 2. Hoppes vs. Boie, 105 la., 648; 75 N. W., 495. 
 
 3. Omaha Consolidated Vinegar Co. vs. Burns, 49 Neb., 229; 68 
 
 N. W., 492. 
 
When Lien Attaches. 115 
 
 twenty years conveys such a right that the leasehold 
 estate will be liable for material furnished in keeping- in 
 repair appliances connected or used on such leasehold 
 estate for the purpose of taking oil from the land cov- 
 ered by such lease. f So where a lease provided that the 
 lessee may enter the property leased and bore and take 
 oil from the land leased, the liens of laborers and for 
 the materials furnished for the equipment of a rig for 
 operations will attach to such equipment and to the les- 
 see's interest in the land. 1 So where a statute provides 
 that when the liens of several persons attach to the 
 same work done, neither shall have priority over anoth- 
 er, the sinking of a gas well is within the lien law and 
 the persons having the liens will share proportionally 
 in the well property. 8 
 
 SEC. 3. WHEN LIENS WILL NOT ATTACH. EXTENT 
 OF LIEN. A lien will not attach to land when a person 
 drills a hole in the ground for the purpose of finding out 
 whether minerals exist under the land in such quantities 
 as will warrant the expenditure of money for the pur- 
 pose of mining them, where the statute provides that 
 any person is entitled to a lien who performs labor in 
 excavating any land. 4 A lien attaches only to the inter- 
 est of the lessee and the lessor's interest is not affected 
 when labor and material are furnished the lessee. 5 The 
 lien will attach to the interest of the lessee in the sur. 
 face when the lessee has a right to use part of the surface 
 for the purpose of carrying on mining operations, 6 but a 
 lien does not attach where no minerals are found. 7 
 
 1. McElwaine vs. Brown, -- Pa., ; 11 AtL, 453; Thomas vs. 
 
 Smith, 42 Pa., 68. 
 
 2. Acklin vs. Waltermeier, 19 Ohio Cir. Ct., 372. 
 
 3. Divine vs. Taylor, (Ohio C. C.), 1 Ohio Dec., 153. 
 
 4. Calvin vs. Weimer, 64 Minn., 37; 65 N. W., 1079. 
 
 5. Welkins vs. Abell, 26 Colo., 462; 58 Pac., 612; Harmon vs. 
 
 Allen, 75 111., 255. 
 
 6. Rogers vs. C. C. C. M. Co., 78 Mo. App., 114. 
 
 7. Blundert vs. Kreiser, 81 Wis., 174; 51 N. W., 324. 
 
116 Lien on Oil Refineries. 
 
 SEC. 4. OIL REFINERY APPLIANCES. A mechan- 
 ic's lien will attach to an oil refinery where timber was 
 furnished in the erection of the building" under a statute 
 which does not specify any buildings, but makes the 
 lien applicable to buildings generally. 1 So when coal 
 cars are furnished to a mine for the purpose of trans- 
 porting the coal from where the same was mined to the 
 mouth of a shaft, the cars are an "improvement" on land 
 under a statute giving 1 a material man a lien on the land 
 for any "building 1 or improvement on the land," and the 
 court in construing 1 the word material in such a statute, 
 said: "Material, however, is a word of such general 
 import that there was no difficulty in making the word 
 cover cars furnished a coal mine so as to give a material 
 man a lien on the mine." 2 Material includes everything" 
 of which anything 1 is made. 8 So where labor and mate- 
 rial are furnished in the construction of pipes extending" 
 from the main building 1 through the streets of a city, such 
 as pipes for the transportation of oil or gas or water, a 
 lien will attach to the main building 1 or plant, as the pipe 
 lines and buildings are but one system, although the 
 labor and material were only furnished for the construc- 
 tion of the pipe lines. 4 
 
 SEC. 5. OIL FURNISHED TO RUN MACHINERY. 
 Under a statute which provides that every person who, 
 as principal, contractor, architect, etc., performs any 
 work, or furnishes any material in or about the erection, 
 construction, protection or removal of any dwelling" 
 house or other building or machinery erected or con- 
 structed, so as to be or become part of the freehold, upon 
 which it is so situated, shall have a lien for such labor 
 
 1. Short vs. Miller, 120 Pa., 470; 14 Atl., 374. 
 
 2. Central Trust Co. vs. Sheffield & B. Coal & Iron Co., 42 Fed. 
 
 R., 106. 
 
 3. Central Trust Co. vs. Sheffield & R. Iron R. Co., supra. 
 
 4. Stegner vs. Refrigerating Co., 86 Tenn., 453; 11 L. R. A., 580; 
 
 Bodger Lumber Co. vs. Marion, etc., 48 Kan., 182; 15 L. 
 R. A., 652; McNeal Pipe & Foundry Co. vs. Rowland, 111 
 N. C., 615. 
 
Lien of Laborers. 117 
 
 and material, a person who furnishes lubricating' oil and 
 which is actually used in operating" mill machinery for 
 the protection of such machinery against friction and to 
 preserve it from injury has no lien for the oil so fur- 
 nished, since the statute applies only when the material 
 enhances the value and becomes a part of the machinery 
 and everything 1 used in operating- machinery and which 
 tends to preserve it is not embraced within the terms of 
 such a statute. r 
 
 SEC. 6. LIEN OF LABORERS AND MATERIAL, MEN EX- 
 TENT OF THE LIEN. Persons employed to drill gas wells 
 and to haul piping 1 to be used in a gas well will be enti- 
 tled to a preferred lien, under a statute which provided: 
 "That all debts due any person for manual and mechan- 
 ical labor shall have a preferred claim in all cases against 
 any individual, corporation or joint stock company when 
 the property thereof shall pass into the hands of a re- 
 ceiver or an assignee, in the distribution and payment of 
 debts, and such receiver or assignee shall first be required 
 to pay in full all debts due for manual or mechanical 
 labor before paying any other." The property must be 
 posessed by the debtor at the time it passes into the 
 hands of a receiver or assignee, and if such property 
 has been assigned to satisfy a valid pre-existing debt and 
 there is no fraud in the transaction, although the prop- 
 erty is thereafter placed in the hands of a receiver, the 
 laborer's lien is lost under this statute. 2 So where a per- 
 son was employed to superintend the construction of pipe 
 lines of a corporation organized for the purpose of supply- 
 ing consumers with natural gas, and as such superintend- 
 ent he had full supervision of digging trenches, laying 
 pipes, and had authority to hire and discharge the men em- 
 ployed to do the work, and the corporation passed into 
 the hands of a receiver and its property was sold, the 
 superintendent was held to come within the terms "la- 
 borer or employee," and was to all intents and purposes 
 
 1. Standard Oil Co. vs. Lane, 75 Wis. f 636; 44 N. W., 644; 7 L. 
 
 R. A., 191. 
 
 2. McElwaine vs. Hosey, 135 Ind., 481; 35 N. E., 272. 
 
118 Particular Liens. 
 
 a laborer and entitled to a preferred claim for wages 
 earned. l Where a laborer's lien is defeated because the 
 property of the parties for whom the labor was performed 
 and the property on which the work was performed passed 
 into the hands of a purchaser to discharge a bon a fide debt, 
 the person who performed the labor may have a lien on 
 the property under the general mechanic lien law which 
 provided: "That the contractors, and sub-contractors, 
 laborers, and all persons performing labor, furnishing 
 material or machinery, for erecting, altering, etc., any 
 house, mill, manufactory, or other building, bridges, 
 reservoirs * * * or other structures may have a 
 lien separately or jointly upon the house, mill, manu- 
 factory or other building, bridge, reservoir, etc., or other 
 structure which they may have erected, altered or re- 
 paired or removed for which they may have furnished 
 material or machinery of any description and on the 
 interest of the owner of the lot of land on which it 
 stands or work which it is connected to the extent 
 of the value ot the labor done or material or machin- 
 ery furnished or both, and all claims of wages for 
 mechanics or laborers employed in or about any shop, 
 mill, wareroom or manufactory shall be a first lien upon 
 all machinery, tools, stock of material or work finished 
 or manufactured and located in and about the shop, etc., 
 and should the person, firm or corporation be in failing 
 circumstances the above mentioned claims shall be pre- 
 ferred debts whether the notice of the lien be filed or 
 not." The derrick, pipes, casing and other appliances 
 were held to come within the term "structures" as used 
 in the statute and entitled the drillers and the person 
 engaged hauling pipe to be used in the gas well to a lien. 
 The gas well and appliances did not, however, come with- 
 in the terms "shop, mill, wareroom or manufactory" as 
 used in the last part of the section quoted and which was 
 
 1. Pendergast vs. Yandes, 124 Ind., 139. See, also, Capron vs. 
 Strout, 11 Nev., 304; Stryker vs. Cassidy, 76 N.Y, 50; Flag- 
 staff Silver Min. Co. vs. Cullins, 104 U. S., 176; see note in 
 Tod vs. Kentucky Union Ry., 18 L. R. A., 305. 
 
Lien on Gas Plants. 119 
 
 designed to protect persons working- in such places. So 
 to protect the lien notice was required to be filed as the 
 statute provided in another section and the drillers and 
 teamsters who had not filed notices of their claims as 
 the statute required lost their lien as against the pur- 
 chaser of the property. 1 The courts of Ohio have also_ 
 held that laborers and material men may have a lien 
 under the mechanic lien law of that state for putting 
 down an oil well. 2 
 
 SEC. 7. LIEN ON GAS PLANTS WHEN ENFORCED. 
 Where a contractor made an agreement with a gas com- 
 pany engaged in the manufacture of gas that in consid- 
 eration of the sum of $1,000, to be paid on the completion 
 of the work, and the giving of two notes of $700 each 
 due in six and twelve months, the contractor would place 
 in the plant a certain apparatus that would manufacture 
 gas from coal and crude petroleum, and that the con- 
 tractor would operate the machinery for thirty days and 
 instruct the superintendent of the plant for the same 
 length of time as to the manner of operating the machin- 
 ery, and that also certain patent rights would be assigned 
 to the gas company to be used in the town in connection 
 with the gas plant, the contractor was held not entitled 
 to a lien on the gas plant for the time spent in instructing 
 the superintendent and for the patent assigned to the 
 company. 3 The lien was held also to be void as to the en- 
 tire indebtedness where the claim for a lien did not item- 
 ize the value of the patent right and the services rendered 
 in instructing the superintendent of the gas company, 
 since the court cannot determine the extent of the lien 
 so the lien is void as to the whole amount. 4 In such a 
 case the result is, "as an entire contract it cannot be 
 enforced, for the reason no lien is given for part of the 
 
 1. McElwaine vs. Hosey, 135 Ind., 481; 35 N.JE., 272. 
 
 2. Devine vs. Taylor (Ohio C. C.), 1 Ohio Dec., 153. 
 
 3. Peatman vs. Center-vine H. & P. Co., 105 la., 1; 74 N. W., 689. 
 
 4. Peatman vs. Centerville Heat & Power Co., 105 la., 1; 74 N.W., 
 
 689; Morrison vs. Minat, 5 Allen, 403; Dennis vs. Smith, 
 38 Minn., 694; 38N.W.,695. 
 
120 Lien on Oil Tanks. 
 
 labor to be performed under the contract. On the other 
 hand the contract cannot be enforced as to part of the 
 labor performed for which a lien is conferred by statute 
 because the contract is entire and an entire contract can 
 not be apportioned and the performance of it enforced 
 in fragments." 1 A lien will be enforced against the en- 
 tire plant of a gas company where a certain gas appa- 
 ratus was put in by a contractor to be used in connection 
 with the plant under a general mechanic lien law. 2 The 
 rule applicable in case where certain appliances are fur- 
 nished is that if the things sold are affixed to such works 
 it will come within the lien law. 3 So where a pump is 
 attached to the works a material man will have a lien; 4 
 or a machine for the generation of gas used in connec- 
 tion with a private dwelling and connected therewith by 
 means of pipes; 5 and where pipes through the streets are 
 firmly connected together with the main plant the pipes 
 are part of the plant and the material man who furnishes 
 the pipes has a lien on the entire plant and pipes and all 
 will be sold to satisfy the lien. 6 It has been held, how- 
 ever, that the lien for pipes which were used over a large 
 territory will not be of any effect unless the claim for a 
 lien describes the lands over which the pipes were laid, 
 and where the claim for a lien only described the lot on 
 which the plant was located the lien will be effective 
 only against the pipes laid on that lot. 7 
 
 SEC .8. LIEN FOR THE CONSTRUCTION OF OIL TANKS. 
 Material men and laborers will be entitled to a lien 
 against an oil refining company for the construction of 
 
 1. Adler vs. World's Pastime Ex. Co., 126 111., 373. 
 
 2. Bristol Goodson Electric Light & P. Co. vs. Bristol Gas Electric 
 
 & P. Co., 99 Term., 387; 42 S.W., 19; Rawlings vs. New 
 Memphis Gas Light Co., 105 Term., 268; 60 S. W., 206. 
 
 3. Goss vs. Helbing, 77 Cal., 190; 19Pac.,277; Donahue vs. Com- 
 
 astie, 21Cal.,80. 
 
 4. Goss vs. Helbing, 77 Cal., 190; 19 Pac., 277. 
 
 5. Light Co. vs. Gill, 14 Pa. Co. Ct., 6. 
 
 6. National Foundry & Pipe Works vs. Howland, 111 N. C., 615; 
 
 16 S. E.,857; 20 L. R. A., 743; National Foundry & Pipe 
 Works vs., Oconto Water Co., 52 Fed. R., 43. 
 
 7. Enfaula Water Co. vs. Addyston Water Co., 89 Ala., 522; 8 So.25. 
 
Waiver of Lien. 121 
 
 oil tanks in connection with an oil refinery and used as 
 part and in connection with such refinery. 1 A person 
 was also allowed to enforce a lien for a tank furnished 
 to a purchaser where it appeared that the tank was man- 
 ufactured at a factory and the parts were shipped to the 
 place to be put up and the parts so shipped were placed 
 together by workmen by means of hoops, oakum and 
 pitch, and the tank was placed on a broad platform which 
 rested on the ground and the tank had a capacity of about 
 250 barrels. The tank was held to become a permanent 
 fixture and part of the real estate and the general me- 
 chanic lien law included such a structure. 3 An oil tank 
 was held not to come within the mechanic's lien law of 
 Pennsylvania in force in Philadelphia. 8 
 
 SEC. 9. LIEN WHEN WAIVED. A mechanic's lien was 
 held not to be waived under the Ohio statute where a 
 firm was employed to construct oil tanks used in con- 
 nection with an oil refinery, and upon completion of the 
 work the creditor did not have the money to pay, so cer- 
 tain notes were given for the debt, not in satisfaction 
 of the debt but to give the oil company time to pay and 
 to enable the lien creditor to raise the money on the notes 
 by endorsing them to a bank. 4 So where a contractor who 
 did the work and furnished the material put in a certain 
 gas apparatus, for which he was entitled to a lien and the 
 appartus was placed in the plant of a gas company en- 
 gaged in the manufacture and sale of fuel and illumina- 
 ting gas, and on the completion of the work he took certain 
 mortgage bonds as security for a part of the debt, the 
 bonds were held not to effect the rights of the contractor 
 to a lien where the bonds were not taken in satisfac- 
 tion of the debt, but there was a presumption of law that 
 the bonds were taken in satisfaction of the debt to the 
 
 1. Standard Oil Co. vs. Sowden, 55 Ohio, 332; 45 N. E., 320. 
 
 2. Parker Land & Improvement Co. vs. Reddick, 18 Ind. App., 
 
 616; 47 N. E.,848. 
 
 3. Seidus Co. vs. Lewis Bros., 7 Pa. Co. Ct., 80. 
 
 4. Standard Oil Co. vs. Sowden, 55 Ohio, 332; 45 N. E., 320; Mc- 
 
 Lean vs. Wiley, 176 Mass., 233; 57 N.E., 347. 
 
122 Conflicting Liens. 
 
 amount of the bonds taken, though such a presumption 
 may be overcome by evidence. The part of the debt for 
 which no security was taken was not affected. 1 
 
 SEC. 10. CONFLICTING LIENS CREDITORS. A me- 
 chanic's lien is superior to that of a judgment creditor's 
 acquired after the mechanic's lien was filed, where a con- 
 tractor put in a certain gas generator in a gas plant and 
 for which he was to receive the sum of $1,000 in cash and 
 two notes of $700 each, due in six and twelve months 
 from date, and no cash was paid and no notes were given 
 on the completion of the work. 8 Nor is a judgment lien 
 superior to that of a mechanic's lien under the Iowa stat- 
 ute, which provided that the lien shall be filed within a 
 certain time and in case the lien is not filed within* the 
 time specified other lien creditors will have a preference 
 where the lien was filed some time after the time speci- 
 fied, but no judgment was recovered until about a year 
 after the lien was filed, as the lien is good against the 
 owner without being filed, and is good against creditors 
 who acquire no lien until after the lien is filed. 3 Under 
 the Ohio statute the lien is valid against the claims of a 
 mortgagee who acquires a mortgage on an oil refinery 
 after the construction of oil tanks used in connection with 
 the oil refinery. 4 The lien is not effected although the lien 
 was not filed or sworn to by the lien creditor until after 
 the assignment of notes which were given for the debt 
 but not as a satisfaction, where the statute provided, 
 that "an affidavit containing an itemized statement of 
 the amount and value of such labor, machinery or ma- 
 terial, with all credits and offsets thereon, a copy of the 
 contract if in writing, a statement of the amount and 
 times of payment to be made thereunder, and a descrip- 
 
 1. Bristol Goodson Electric Light & Power Co. vs. Bristol Gas, 
 
 Electric Light & Power Co., 99 Term., 387; 42 S. W., 19. 
 
 2. Peatman vs. Centerville Heat & Power Co., 105 la., 1; 74 N. 
 
 W.,689. 
 
 3. Peatman vs. Centerville Heat & Power Co., 105 la., 1; 74 N. 
 
 W.,689. 
 
 4. Standard Oil Co. vs. Sowden, 55 Ohio, 332; 45 N. E., 320. 
 
When Superior to Mortgage. 123 
 
 tion of the premises." The statute did not require the 
 lien claimant to state "the amount due and owing" to him. 
 "The lien is taken to secure the indebtedness, whether 
 in the form of an account or a note, will remain secured 
 by the lien until paid." "In taking- of the lien it makes 
 no difference who hold or own the notes, and as the notes 
 were not accepted as payment, * * * the partnership 
 had a right to perfect the lien to secure the debt and 
 enforce payment of them by the foreclosure of the me- 
 chanic's lien when the notes were returned to them be- 
 cause of their non-payment by the oil company when 
 due. 1 " Under the Iowa statute liens are assignable and 
 may be sworn to by the assignor before the assignment 
 of the lien and filed by the assignee.* The lien attaches 
 from the time of the commencement of the work or de- 
 livery of the material, and the claims of mechanics and 
 material men are superior to those of all claims acquired 
 thereafter. 8 So where an oil company was engaged in 
 refining oil and the manufacture of its various products 
 and mechanics were employed and material was used in 
 the construction of one of the buildings, and a lien was 
 filed against the whole plant, which included many build- 
 ings and fifty- five acres of ground, and the lien was fore- 
 closed against the entire plant, the lien creditor's claims 
 were held to be superior, on a division of the proceeds, 
 to that of a mortgage on the plant made subsequent to 
 the time of doing the work and furnishing the materials 
 where the owner had a right to designate the particular 
 tract of ground to be occupied by the building to be con- 
 structed and failed to do so, and the claimants made no 
 objection at the time of the entry of the decree to fore- 
 close the lien that the claims for a lien included land 
 and buildings not connected with the building which had 
 been constructed. 4 The claims of laborers for wages 
 
 1. Standard Oil Co. vs. Sowden, 55 Ohio, 332; 45 N. E., 320. 
 
 2. Peatman vs. Centerville Heat & Power Co., 105 la., 1; 74 N. 
 
 W., 689. 
 
 3. Bristol Goodson Electric Light & Power Co. vs. Bristol Gas, 
 
 Electric Light & Power Co., 99 Tenn., 387; 42 S. W., 19. 
 
 4. Sicardi vs. Keystone Oil Co., 148 Pa., 639; 24 Atl., 161. 
 
124 When Mortgage is Superior. 
 
 earned the three months previous to the time the prop- 
 erty of one who employs such labor is placed in the hands 
 of a receiver are superior to that of a chattel mortgage or 
 any other claim against the property, except such neces- 
 sary expenses incurred by reason of the receivership and 
 taxes, where the property was used in connection with the 
 business in which the laborers were employed, and the 
 statute gives preference in such cases, although the chat- 
 tel mortgage was made before the work was done for 
 which the preference is claimed. J 
 
 SEC. 11. WHEN ARE MORTGAGES SUPERIOR TO CLAIMS 
 UNDER A MECHANIC'S LIEN LAW. Mechanic's liens are 
 inferior to the claims of a mortgagee of all the property 
 of a corporation engaged in the manufacture and sale of 
 gas where the material was furnished and the work per- 
 formed after the mortgage was executed and filed for 
 record, although the contract to furnish the material and 
 perform the work was made before the mortgage was 
 filed for record, but no work was done or material 
 furnished or placed on the premises of the gas com- 
 pany until after the mortgage was filed for record and 
 the mortgagee was given no notice that the work was 
 to be done. 2 In this case the person who held the mort- 
 gage was a director in the corporation and the mort- 
 gage was given to secure a preexisting indebtedness 
 due the director from the corporation, and a sale of the 
 property was made under the mortgage and purchased 
 by the director and others. The mortgage and sale were 
 assailed by the stockholders and material men and me- 
 chanics, but the court held that the director occupied 
 the same position toward the corporation as any stock- 
 holder and as no fraud or collusion was shown the mort- 
 gage and sale were valid against objection of stockholders 
 and lien creditors. The court in deciding* the case cited 
 the case of the Twin Lick Oil Co. v. Marbury* as upholding 
 
 1. Trust vs. Miami Oil Co., 10 Ohio C. D., 372. 
 
 2. Rawlings vs. New Memphis Gas Light Co., 105 Tenn., 268; 60 
 
 S. W.,206. 
 
 3. Twin Lick Oil Co. vs. Marbury, 91 U. S., 329. 
 
Mortgage to Director of Corporation. 125 
 
 the right of the director to take the mortgage and then 
 become a purchaser at the sale. The case to which the 
 court referred was where a corporation was engaged in 
 the production and vending of pretroleum, and when it 
 became embarrassed the corporation mortgaged its prop- 
 erty to a stockholder and director, and when the corpo- 
 ration failed to pay the debt the mortgagee sold the 
 the property under a power of sale contained in the mort- 
 gage and became a purchaser of the property through 
 his agent at the sale, and an action was brought by a 
 stockholder to set aside the sale because the director 
 occupied confidential relations toward the corporation 
 and its stockholders, so he could not take a mortgage 
 and become a purchaser at his own sale. The court held 
 that the sale was voidable if proceedings were begun in 
 apt time, but at the time of the sale the property was 
 nonproductive and was at that time a losing venture and 
 that the stockholders failed to pay the assessments made 
 upon their stock to keep it a going corporation, and that 
 after the sale was made the purchaser expended money 
 in making a survey of the land and that he discovered 
 by the survey that a productive oil well was on the land 
 operated by third persons and that others were drilled, 
 and that by his efforts and energy as well as his money 
 he made it a profitable venture, the stockholders were 
 held to have ratified the sale by postponing action for 
 four years. The action may be in apt time if the prop- 
 erty was real estate with a fixed unchangeable value, but 
 where the property sold consists of oil lands, the value 
 of such lands is purely speculative as the property may 
 be worth thousands of dollars today and a few months 
 later the property may be valueless, and where there is 
 no fraud in the transaction a suit is barred if not brought 
 in apt time. Other courts hold, however, that the officers 
 of a corporation when insolvent cannot acquire a prefer- 
 ence against unsecured creditors. Thus, where a com- 
 pany was engaged in refining petroleum and in the man- 
 ufacture of its products assigned mortgage bonds on the 
 plant to the president, who was one of the directors, and 
 
126 Lien on Leased Land. 
 
 the bonds were assigned and sold by him to a third per- 
 son and the property was placed in the hands of a re- 
 ceiver and sold on the foreclosure of mechanic's liens, in 
 a distribution of the assets derived from the sale after 
 satisfying 1 the mechanic's liens, the court decided that the 
 holder of the bonds had no claim superior to that of un- 
 secured creditors. The court said: "If, on the discovery 
 of the insolvency of the corporation, its officers were at 
 liberty to appropriate its entire assets in satisfaction of 
 their demands against it outside parties dealing 1 with it 
 would be entirely devoid of protection. The law does 
 not intend or allow such appropriation by persons united 
 with the management of the corporation," and such offi- 
 cers cannot obtain a preference as against creditors. 1 
 There are many cases which hold that insolvent corpo- 
 rations cannot give a preference to their officers or deal 
 with the property as strangers would. 2 
 
 SEC. 12. OIL AND GAS WELLS OR GAS PLANTS ON 
 LEASED LAND FORFEITURE OP LEASE EFFECT ON 
 LIEN. A lien was allowed a person on land leased 
 for the purpose of drilling for oil and gas, for the pro- 
 duction of the oil and gas where such person furnished 
 material for the construction of a derrick to be used in 
 putting down wells and performed the labor thereon. 8 
 The lien creditor was entitled to a lien although the 
 lease provided that "in case no well is completed within 
 sixty days from the date thereon the grant shall be null 
 and void unless the second party thereafter pay at the 
 rate of $2.00 per day each day said completion is de- 
 layed," and the lien creditor did not show that a well was 
 
 1. Sicardi vs. Keystone Oil Co., 149 Pa., 139; 24 Atl., 163. 
 
 2. Olney vs. Conaticut Land Co., 16 R. I., 597; 5 L. E. A., 361; 
 
 Rouse vs. Merchant National Bank, 46 Ohio, 493; 5 L. R. A., 
 378; Corey vs. Wadsworth, 99 Ala. 68; 23 L. R. A., 618; Hall 
 vs. Pioneer Lumber Co., 113 N. E., 173; 21 L. R. A., 560; 
 Adams., etc., vs. Deyette, 8 S. D., 119; Lyons Thomas 
 Hardware Co. vs. Perry S. M. Co., 88 Tex., 43; 21 L. R. A., 
 802, and note. 
 
 3. Montpelier Light & Water Co. vs. Stephenson, 22 Ind. App., 
 
 175; 53 N. E., 444. 
 
Forfeiture of Lease. 127 
 
 completed in the sixty days or that the $2.00 per day 
 was paid, because the clause in the lease was one of for- 
 feiture and the lessor must show that a forfeiture was 
 declared before the lien attached. The lien attached 
 not only to the derrick and appliances but also to the 
 well drilled. 1 So where a gas company held a lease on 
 land and material men had acquired a lien on the premT 
 ises the lien was held to cover the entire interest of the 
 lessee in the premises, but the lien creditor had no claim 
 or right to remove the fixtures after having them at- 
 tached to the premises and his only remedy was against 
 the premises and fixtures as real estate.* 
 
 1. Montpelier Light & Water Co. vs. Stephenson, 22 Ind. App., 
 
 175; 53 N. E., 444. 
 
 2. Chicago Smokeless Fuel Gas Co. vs. Lyman, 62 111. App., 538. 
 
Right to Acquire Land for Pipe Lines. 
 Power of Eminent Domain. 
 
 CHAPTER XL 
 
 SECTION 1. RIGHT OF WAY OVER PRIVATE LANDS 
 PAYMENT OF DAMAGES. From what has been said in 
 a preceeding chapter gas and oil companies engaged 
 in the business of transporting and supplying gas and 
 oil to the public, are engaged in a business of a public 
 nature, the same as a railroad, and the like business. So 
 when land is needed for the purpose of laying their pipes, 
 the companies and corporations engaged in the business 
 may acquire such land by purchase, or through condem- 
 nation proceedings on the payment of the value of the 
 land and damages occasioned by the taking of such land. 
 Where the land is acquired by condemnation by com- 
 panies and corporations, the damages must be paid or 
 secured before a pipe line can be laid on the lands of a 
 private owner; 1 but where condemnation proceedings 
 are instituted for the purpose of obtaining lands for a 
 pipe line, the title vests in such company on the report 
 of the commissioners to assess the damages and the pay- 
 ment of the award under the Indiana statutes, although 
 the land owner takes an appeal on the amount of dam- 
 ages awarded. 2 
 
 SEC. 2. CONDITION OF THE GRANT RESTRICTION 
 IMPOSED ON THE LAND OWNER BY THE PARTY ACQUIR- 
 ING THE RIGHT OF WAY. Where a gas company acquires 
 a right of way through the lands of a private owner and 
 the owner stipulates, in the conveyance to the company, 
 
 1. Sterling's Appeal, 111 Pa., 35. 
 
 2. Manufacturers' Nat. Gas Co. vs. Leslie, Ind., 49 N. E., 946. 
 
Right of Way for Pipe Lines. 129 
 
 that the company in laying- its pipes shall place them 
 two feet below the surface, the company is bound to 
 place the pipes as the deed provides, because the provi- 
 sion in the grant is a condition precedent to the use of the 
 land for a pipe line, and, when a company lays its pipes 
 at a less depth, the land owner may enjoin the company, 
 from using- the pipes, and the mere fact that preventing 
 the gas company from using- the pipes might be incon- 
 venient to the public will not bar his rig-ht to an injunc- 
 tion. J An oil transportation company cannot enter into 
 a contract with the owner of the land from whom it ac- 
 quires a right of way so as to bar others from acquiring 
 a right of way or impose burdens on the subsequent pur- 
 chase of the lands. Thus where an oil transportation 
 company entered into an agreement with a land owner, 
 whereby the land owner for a valuable consideration 
 granted to the company and their assigns the exclusive 
 right of way and privilege to construct and maintain 
 one or more lines of tubing for the transportation of oil 
 through and under a tract of land containing 2000 acres, 
 and the oil produced on the land would be transported 
 through its pipe line, which agreement was signed, sealed 
 and delivered by the land owner. 2 
 
 1. It was held: "By the true construction of this in- 
 strument it operated first as a grant of a right of way for 
 such tubing for the transportation of oil through said 
 tract of land, and secondly it was intended to operate as 
 a covenant, whereby the land owner agreed, that he 
 would not himself transport oil from or through this tract 
 of land, nor grant rights of way to any other person or 
 company to lay tubes for the transportation of oil through 
 said tracts of land, whether the oil was produced on said 
 tract of land or not." 
 
 2. Such agreement was valid and binding on the 
 land- owner and his assigns, so far as it operated as a 
 
 1. Carothers vs. Philadelphia Co. (Pa. C. P.), 23 Pitts. L. J. N. S., 
 
 191. 
 
 2. West Virginia Transportation Co. vs. The Ohio River Pipe 
 
 Line Co., 22 W. Va., 600. 
 
130 Restraint on Land Oivner. 
 
 grant of right of way for such tubing through said tract 
 of land, but so far as it was intended to operate as a 
 covenant, that the land-owner would not himself trans- 
 port oil from or through said tract of land nor grant 
 rights of way to any other persons or company to lay 
 tubes for the transportation of oil through said tract of 
 land whether the oil was produced upon it or not, this 
 agreement was inoperative, null and void as contrary to 
 public policy, being an attempt to impose an unreason- 
 able restraint upon trade. 
 
 3. As a general rule any trade or business may legally 
 have imposed on it by contract a partial restraint, as 
 the extent of territory, over which it is permitted to ex- 
 tend. Such restraint, when valid, varies with the char- 
 acter of the trade or business. In some sorts of trade or 
 business it may be a large extent of country, hundreds of 
 miles in dimensions, in which a party may contract not 
 to carry on his business; but in other sorts of business 
 the restraint would not be valid, if it were attempted by 
 the contract to extend it beyond the bounds of a single 
 town; and there are some sorts of business, which the 
 law will not allow to be restricted at all by contract. 
 
 4. Whenever the legislature by statute law has au- 
 thorized any person or corporation to condemn the lands 
 of others in order to carry on its business, the courts will 
 regard this as a legislative declaration, that this charac- 
 ter of business is such, as that the public has so great 
 and direct an interest in, that the courts must hold it as 
 contrary to public policy to permit any restrictions of 
 it by private contract. 
 
 5. A contract, by which an exclusive right of way is 
 granted through any land, however small the parcel, is 
 void, so far as the right is attempted to be made exclu- 
 sive, as contrary to public policy and as in direct conflict 
 with the State's right of eminent domain. 
 
 6. A landlord may by contract under seal impose on 
 the land, which he leases, burdens, which will not only 
 be binding on the tenant but also on sub-tenants, they 
 being covenants real running with the land. But except 
 
Damages for Land Taken. 131 
 
 between landlord and tenant no burdens can be imposed 
 on the lands by any covenant of the owner, which will run 
 with the land and bind any grantee of the land; for such 
 covenants are personal and are not covenants real run- 
 ning- with the land. 
 
 7. An agreement by a land owner that the products 
 of his land shall be transported to market by a certain 
 common carrier is not a covenant real and does not run 
 with the land or bind any subsequent purchaser of the 
 land. 
 
 8. A court of equity would not enforce the perform- 
 ance of such covenants by a subsequent purchaser of the 
 land, though he bought the land with full notice of the 
 existence of such covenant. 
 
 SEC. 3. DAMAGES FOR TAKING LAND PROSPECTIVE 
 DAMAGES FROM EXPLOSIONS AND FIRES NOT ALLOWED. 
 In estimating the damages in the condemnation of land 
 for a pipe line for the transportation of natural gas, the 
 value of the strip taken for the easement is not the basis 
 of damages, but the jury must consider the part taken 
 in relation to the remainder of the farm, and the restric- 
 tions the pipe line will cause in making 1 improvements 
 on the land and liability of the gas to escape from the 
 pipes and injure the crops; 1 but the appellate court of 
 the same state held that such damages did not include 
 the prospective injuries to crops from the escape of gas, 
 or damages to persons and animals from the explosion of 
 gas, 2 since it will not be presumed that natural gas will 
 escape and cause injury to persons and property on the 
 land over which the pipe line passes. 8 So damages will 
 not be allowed for probable fires caused by the escape 
 and explosion of gas from pipe lines 4 independent of 
 
 1. Manufacturers' Nat. Gas Co. vs. Leslie (Ind. Sup. Ct.), 49 
 
 N. E., 946. 
 
 2. Manufacturers' Nat. Gas Co. vs. Leslie, 22 Ind. App., 677; 51 
 
 N. E.,510. 
 
 3. Indiana Nat. Gas & Oil Co. vs. Jones, 14 Ind. App., 55: 42 N. 
 
 E.,487. 
 
 4. Indiana Nat. Gas & Oil Co. vs. Jones, 14 Ind. App., 55; 42 N. 
 
 E., 487. 
 
132 Right Acquired. 
 
 the damages to the land in laying" the pipe lines. In 
 Pennsylvania, when a gas company enters the land as a 
 trespasser, and digs trenches and places pipes* in the 
 trenches, the land owner will be awarded damages for 
 any injury caused by the operation of the pipe line on 
 the land. 1 And in the same state, where an action tor 
 damages is brought against a gas company, for damages 
 to crops occasioned by the escape of gas, such action 
 will not lie when there is no evidence that the pipes were 
 defective or the same were not properly cared for or con- 
 structed. Where an appeal is taken from Indiana the 
 award of damages the burden of proof is on the land 
 owner. 2 In Pennsylvania when the land is taken under 
 the right of eminent domain for a pipe line, for the trans- 
 portation of natural gas, the measure of damages is to 
 be determined by the difference between the benefits re- 
 ceived from the construction of the pipe line and the 
 damages accruing from such construction. 3 
 
 SEC. 4. RIGHTS ACQUIRED SURFACE SUPPORT 
 OTHER ELEMENTS OP DAMAGES. When a pipe line com- 
 pany condemns land for a right of way to construct a 
 pipe line such company acquires the right of surface 
 support and the owner of the land has no right to take 
 coal from the ground beneath the pipe line; 4 but the pipe 
 line company may release the right to the surface sup- 
 port and take the risk of subsidence and the land owner 
 cannot recover compensation therefor though the pipe 
 line company, by such release, cannot defeat the right 
 of the owner of the mineral to compensation for the 
 risk that gas may find its way from the pipes to the 
 mine below, since the owner may recover damages in- 
 flicted on the property as a whole; 5 and in such a case, 
 
 1. Patterson vs. People's Nat. Gas Co., 172 Pa., 554; 33 Atl., 575; 
 
 Denniston vs. Philadelphia Co., 161 Pa., 41; 28 A., 1007. 
 
 2. Consumers' Gas Trust Co. vs. Hunsinger, 12 Ind. App., 213; 
 
 40 N. E.,34. 
 
 3. Fisher vs. Baden Gas Co., 138 Pa., 301; 22 Atl., 29. 
 
 4. Davis vs. Jefferson Gas Co., 147 Pa., 130; 23 Atl., 218; Mc- 
 
 Gregor vs. Equitable Gas Co., 139 Pa., 230; 21 Atl., 13. 
 
 5. Davis vs. Jefferson Gas Co., 147 Pa., 130; 23 Atl., 218. 
 
Abandonment of Pipe Line. 133 
 
 evidence of the character of the soil and the probable 
 danger of the surface subsiding when the minerals are 
 removed, and the breaking of the pipe on account of 
 subsidence, and the escape of gas to the mine is admis- 
 sible to show the general depreciation in the value of 
 the land over which the line is to run, but evidence which 
 is improbable is not admissible, such as evidence that 
 coal, which is found below the surface at a depth of over 
 100 feet, will be required to support a pipe line on the 
 surface, and that such pipe line is likely to break if re- 
 moved is purely speculative and inadmissible. 1 Damages 
 are not allowed because it will cost more to mine the 
 coal on account of the pipe line passing over it. 2 Damages 
 must be proven by persons who are familiar with the 
 situation, so a witness who is not shown to have any 
 knowledge and who appears to have no experience or 
 means of information cannot testify as to what amount of 
 coal in place will be required to support a pipe line. 8 
 
 It has been held that the petitioner for a right of 
 way for a pipe line may release the right to surface sup- 
 port on the trial after filing bond to secure damages and 
 when such release is made the owner of the coal can 
 mine the same; and the pipe line company takes the risk 
 of subsidence and such a servitude should not be con- 
 sidered as an element of damage as to mining coal. 4 
 
 SEC. 5. ABANDONMENT OF PIPE LINE RIGHT TO 
 REMOVE SAME. Where a pipe line company acquired 
 the right to lay pipes under the Pennsylvania Act, May 
 29, 1885, and the owners' land was condemned and dam- 
 ages assessed and paid, under the act for the easement to 
 lay such pipes, and the company transported gas through 
 the pipes from 1888 to 1893, when the supply of gas failed 
 at the wells and the company concluded to remove the 
 pipes with the intention of abandoning the easement as 
 
 1. Jefferson Gas Co. vs. Davis, 147 Pa., 130; and 2 Infra. 
 
 2. Wallace vs. Jefferson Gas Co., 147 Pa., 206. 
 
 3. Wallace vs. Jefferson Gas Co., 147 Pa., 206. 
 
 4. McGregor vs. Equitable Gas Co., 139 Pa., 230; 21 Atl., 13; 
 
 Penn Coal Co. vs. Gas Co., 151 Pa., 522. 
 
134 Release of Surface Support. 
 
 a line of transportation, the material in the pipe line be- 
 longed to the company and it had a right to remove the 
 same after the gas failed. The proceeding under the 
 eminent domain act had no effect on the title to the pipe, 
 nor did the proceedings impose any obligation on the 
 company to maintain them any longer than the company 
 saw fit under the circumstances; and the company may 
 surrender its easement and surrender the land to the 
 owner, but the company had a right to enter the land be- 
 fore it surrendered its easement and remove the pipes. 
 
 The removal of the pipe must be done without injury 
 to the land owner, and, where the law requires the com- 
 pany to place its pipes two feet below the surface, the 
 sod covering the pipes must be removed with care and 
 replaced, and, if the company drives teams over meadows 
 in wet weather to remove the pipe and damages accrue, 
 the land owner must be paid whatever damages done to 
 his meadow and also any other damages incident to the 
 removal of the pipes. * 
 
 SEC. 6. CONDEMNATION AFTER RELEASE OF SUR- 
 FACE SUPPORT. Where an owner leased his lands to 
 a mining company and, in the lease, surrendered all right 
 to surface support by the removal of the coal beneath 
 the surface, and thereafter a pipe line was sought to be 
 laid on the surface before the coal was removed and the 
 land was condemned, the party condemning the land 
 for the pipe line was not bound by the release of the sur- 
 face support by the owner. As under the law, an en- 
 try upon the surface is an entry upon any part below 
 the surface, so where a coal company which owns the 
 coal was not made a party to the acquisition of the right 
 of way by a pipe line company, the coal company can 
 enjoin the pipe line company from making an entry upon 
 the surface for the pipe line. 2 
 
 1. Clements & W.vs. Philadelphia Co., 184 Pa., 28; 39 L.R.A. 532. 
 
 2. Pennsylvania Gas & Coal Co. vs. Varsailles Gas Co., 131 Pa., 
 
 522; 19Atl.,933. 
 
Pipe Line on Railroad Eight of Way. 135 
 
 / 
 
 SEC. 7. PIPE LINES ACROSS A RAILROAD RIGHT OP 
 WAY. Where a railroad company acquired the right of 
 way by deed over the lands of a private owner, and the 
 right of way is an interest in the fee in the land so oc- 
 cupied and acquired for the right of way, and in the deed 
 granting the right of way, the grantor reserved to him- 
 self, his heirs and successors, and assigns, a right to 
 pass across the railroad under the following stipulation 
 in the deed: "A suitable wagon road, or crossing, which 
 shall be at least thirteen feet wide, so as to enable the 
 said Stewart to travel freely between his lands on each 
 side of said granted premises," and the owner of the 
 easement reserved granted an oil pipe line company a 
 right to place its pipes on the easement and the com- 
 pany, in pursuance of the supposed right, dug up the 
 road and placed its pipes in the ground and was using 
 them for some years, when the railroad company brought 
 an action in trespass, the pipe line company was held 
 liable as a trespasser, because the railroad company was 
 the owner of the fee and that the way reserved by the 
 land owner was but an easement and the same was cre- 
 ated for the use of the lands owned by him on each side 
 of the railroad, and that the way cannot be used for any 
 other purpose unconnected with the use of the land; and 
 cannot be assigned to a stranger; or the owner cannot 
 license a stranger to use it for purposes disconnected 
 with the use of the land. * A land owner was held to be en- 
 titled to a way of necessity where he conveyed a right of 
 way in fee to a railroad company through his land, and 
 years afterwards gas was discovered on the opposite side 
 of the land from his residence to which place he wished 
 to convey the gas. a 
 
 SEC. 8. RIGHT OF WAY THROUGH COAL TO REACH 
 OIL OR GAS. The owner of the surf ace sold the coal rights 
 to another with a right to enter upon the surface to sink 
 shafts, remove coal, and a right to travel over the land 
 
 1. United States Pipe Line Co.vs. Del. Lac. & W. Ry., 62 N.J.L., 
 
 254; 41 Atl., 759; 42 L.R.A., 572. 
 
 2. Uhl vs. Ohio River Ry. Co., 47 W. Va., 59. 
 
136 Eight of Way Through Mines. 
 
 to reach the places to sink the shafts and remove the 
 coal. Some time thereafter oil and gas were found to 
 exist in the lands beneath the stratum of coal, and the 
 owner of the surface, who was also the owner of the 
 stratum of oil and gas, leased the same for the produc- 
 tion of oil and gas. The lessee proceeded to sink wells 
 to reach the oil and gas below the stratum of coal, when 
 the coal company sued out an injunction to prevent the 
 parties operating for oil and gas, from sinking wells 
 through the vein of coal, on the ground that the owners 
 of the stratum of oil and gas had no right to drill wells 
 through the coal to reach the oil and gas, and on the 
 ground that gas would leak and the leakage would make 
 the mine unsafe for the coal company's employees and 
 dangerous to its property and would depreciate the value 
 of the property. The injunction was denied because the 
 owner of the surface was still the owner of the whole 
 fee except the coal and that the owner of the coal rights 
 had no estate in the lands except the coal and the right 
 to remove the same and that, when the coal was all re- 
 moved, his estate ceased and all that could be possibly 
 claimed by the owner of the coal would be that the rights 
 of the owner of the balance of the fee were suspended 
 during the time the owner of the coal was removing it; 
 but the owner's rights were suspended only to the extent 
 of preventing any wanton interference with the coal min- 
 ing, and, for every necessary interfering, the owner of 
 the remainder of the fee must respond in damages. But 
 that the owner of the coal rights must so exercise his 
 rights as not to interfere with the rights of the others 
 who may own an estate either above or below, and that 
 the right of the surface owner or the owner of the estate 
 below has a right to reach the estate below at all times. 
 No one can deny the title of the owner of a sub-strata 
 but if a denial of the right to reach the sub-strata was 
 sustained, such owner would in effect be deprived of his 
 title and estate. 1 So where an application was made for 
 
 1. Chartiers Block Coal Co. vs. Mellon, 152 Pa., 286; 18 L.B.A., 
 702; 25 A., 597. 
 
Pipes Laid on Street. 137 
 
 a preliminary injunction to prevent an oil well from be- 
 ing sunk through a coal mine on the ground that the gas 
 will escape, and find its way to the mine, and cause a 
 loss of life and property, and the allegation is supported 
 by affidavits, but denied by counter affidavits, and also 
 the latter affidavits show that extra precautions are used_ 
 to prevent the escape of gas in the contract for drilling, 
 and the injunction would inconvenience the operators of 
 the well, the injunction will be denied. 1 An injunction 
 will be denied where coal is no longer mined at the point 
 where the well is being drilled and does not interfere 
 with mining operations at other points and the owner of 
 the coal can be awarded the value of the coal taken out 
 in the drilling of the well at the final hearing. 2 So where 
 mine inspectors make an application for an injunction 
 to suspend operations in a coal mine because wells have 
 been sunk through the mine and others will be sunk, it 
 will not be granted when no present danger appears, but 
 the application will be suspended for a future time in 
 case danger should arise. 8 
 
 SEC. 9. PIPES LAID ON A STREET WHICH WAS LAID 
 OUT UNDER A STATUTE WHICH WAS DECLARED VOID IN 
 A SUBSEQUENT PROCEEDING. Where a gas company gets 
 the permission of the proper municipal authorities to lay 
 pipes on one of the streets of a city and the right granted 
 was accepted by the company, and the pipes were laid 
 on the street, but the law under which the street was 
 laid out was. subsequently declared unconstitutional, the 
 owner of the lands cannot deprive the gas company of 
 the right to continue the use of the pipes on the street 
 after the law was declared void, when no question as to 
 the validity of the law was raised at the time the lands 
 were taken for the purpose of a street. 4 The street so 
 laid out will be regarded as done in a legal manner and 
 
 1. Rend vs. Venture Oil Co., (C.C.W.D. Pa.) 48 Fed., R. 248. 
 
 2. Rend vs. Venture Oil Co., Supra. 
 
 3. Com. Blick vs. Sauters, (Pa. C. P.) Pa. Leg. Inst., 462; 6 
 
 Kulp., 407. 
 
 4. King vs. Philadelphia Co., 154 Pa., 160; 21 L.R.A., 141. 
 
138 Removal of Pipe Line from the Public Highway. 
 
 the same rule applies in such a case as applies to the 
 acts of de facto officers. 1 
 
 SEC. 10. LIABILITY OF A LAND OWNER FOR THE 
 REMOVAL OF A PIPE LINE LAID ALONG A PUBLIC HIGH 
 WAY WHEN THE OWNER is BARRED FROM REMOVING 
 PIPES. An abutting land owner and those who assisted 
 were held not liable for damages for the removal of a 
 pipe line laid along a public highway without the con- 
 sent of the county commissioners and without the con- 
 sent of the owner of the fee in the public highway or the 
 payment of damages to the owner under a law which 
 gave the pipe line company a right: "To dig its trenches; 
 to lay its pipe lines over, across, or under any stream of 
 water, water course, road, highway or railroad, so as 
 not to interfere with the free use of the same which the 
 route thereof shall intersect, in such a manner as to 
 afford security for life or property. And whenever the 
 board of commissioners of the proper county shall so 
 direct, said trenches and pipe lines may be constructed 
 and laid along the right of way of any road or highway; 
 but in all cases where said trenches are, or pipe lines shall 
 be laid across, upon, or along any gravel road, road or 
 highway thus intersected, said company, corporation, or 
 voluntary association shall immediately upon the laying 
 of any such pipe restore the same to its former state, 
 etc." The rule was stated to be well settled in Indiana 
 that the owner of land abutting on a public highway is 
 the owner of the fee to the middle of the highway and 
 that the rights of the public is simply an easement afford- 
 ing passage over and along the highway. 2 It is also 
 well settled in Indiana that such abutting owners have a 
 special proprietary right in the highway, separate and 
 distinct from that of the general public, and these rights 
 cannot be taken away or impaired without compensa- 
 tion. Such a right cannot be divested by the legislature 
 except when the land is taken it is devoted to a public 
 use and then only when compensation is made for the 
 
 1. King. vs. Philadelphia Co., 21 L.R.A., 141 & Note. 
 
 2. Consumers Gas Trust Co. vs. Huntsenger. (Ind. App.) 39 
 
 N.E.,423. 
 
Estoppel of Owner. 139 
 
 land to be taken. * The building- of natural gas lines and 
 thus supplying fuel to the public, is a matter of a general 
 public interest and for the public good, and in such a case 
 the individual right must give way to the public rights, 
 but compensation must be made before an individual's 
 land is taken, even though the taking will benefit the^ 
 public, and as the use of a public highway for the trans- 
 portation of gas through pipes does not come within the 
 use for which a highway was intended so the laying 1 of 
 such pipes is an additional burden for which compensa- 
 tion must be paid to the abutting owner. 2 Hence the 
 pipe line company committed an unlawful trespass when 
 it laid its pipes along the public highway without the 
 consent of the abutting owner, and such owner may expel 
 the agents of the company and remove the pipes from 
 the highway, doing as little damages as possible to the 
 pipes, and the owner could call assistance and those who 
 would help in removing the pipes would not be liable. 8 
 The owner in such a case must not wait, however, until 
 the pipes are used to supply gas to the public, but must 
 remove them before the pipes are used for that purpose, 
 because the rights of the public intervene when the 
 public is supplied through the pipes and then the land 
 owner's rights are limited to compensation for the land 
 taken. 4 
 
 1. Consumers Gas Trust Co. vs. Huntsenger, (Ind. App.) 39 
 
 N.E. 423. 
 
 2. Consumers Gas Trust Co. vs. Huntsenger, (Ind. App.) 39 
 
 N.E. 423; Hoffman vs. State, 21 Ind. App.,449;52 N.E. 713. 
 
 3. Consumers Gas Trust Co.vs Huntsenger, (Ind. App.) 39 N.E., 
 
 423; Hoffman vs. State, supra. 
 
 4. Kincaid vs. Ind. Nat. Gas Co., 124 Ind., 577; 24 N.E. 1066. 
 
Execution of Oil and Gas Leases. 
 
 CHAPTER XII. 
 
 SECTION 1. SALE OR LEASE OF HOMESTEAD MUST 
 BE JOINT ACT OF HUSBAND AND WIFE HOMESTEAD ON 
 LEASED LANDS AND MINERAL CLAIMS ABANDONMENT 
 OF HOMESTEAD. Where a disposition is made of the 
 homestead, by absolute sale, or by a lease, to prospect 
 for the oil or gas, which may be found on the premises, 
 the deed or lease must be signed by both husband and 
 wife in those states where the statute provides that any 
 disposition of the homestead must be the joint act of the 
 husband and wife. So where a lease was executed by the 
 husband alone, and the lease stipulated that the lessee 
 and his assigns had the righ t to prospect for oil and gas on 
 the lands demised; and to carry the lease into execution 
 the lessee would have to erect derricks on the premises 
 to sink an oil or gas well, and would also have to appro- 
 priate a right of way over the premises and also have 
 buildings thereon necessary to carry on the business, of 
 drilling for oil or gas, the lease contemplates the occupa- 
 tion of part of the premises at least, and is void if the 
 premises is a homestead, where only the husband signed 
 the lease, and where the statute requires that any dispo- 
 sition of the homestead must be the joint act of the hus- 
 band and wife. * So where the law requires the consent 
 to be the joint act of the husband and wife, separate 
 leases or instruments of conveyances are not sufficient to 
 
 1. Palmer Oil & Gas Co. vs. Parrish, 61 Kas., 311; 59 Pac., 640; 
 The Wea Gas, Coal & Oil Co. vs. The Franklin Land Co., 43 
 Kan., 518; Evans vs. Grand Rapids L. & D. Ry., 68 Mich., 
 602; 36 N. W., 687; Pilcher vs. A. F. & Santa Fe Ry., 38 
 Kan., 517; 16 Pac., 946. 
 
Sale of Oil and Gas. 141 
 
 pass any claim or interest to the grantee. 1 So a power of 
 attorney authorizing" the husband to sell or dispose of 
 the homestead is not sufficient as the joint consent of the 
 husband and the wife. 2 So where a homestead right ex- 
 ists, in leased lands, and a homestead may exist on leased 
 lands as well as the fee, the instrument must be acknow- 
 ledged by both husband and wife where the statute re- 
 quires. 8 - So where a claimant enters land for mineral 
 purposes but also resides thereon with his family and uses 
 the land to pasture his cattle, the owner of the mineral 
 claim has a homestead in the lands under the state laws, 
 although the entry was made under the United States laws 
 as a mineral claim. 4 When an oil and gas lease is made 
 on premises by the husband alone and which is void be- 
 cause the statute requires such a lease to be the joint 
 act of the husband and wife, the homestead is not aban- 
 doned so as to make the lease effective, at the time of its 
 execution, by the husband and wife leaving the prem- 
 ises, to find another desirable home; and, if none could 
 be found, to return to the homestead again, and the hus- 
 band and wife returned to the homestead and, while they 
 were absent, the homestead was occupied by members of 
 the family and the stock and personal property used on 
 the homestead were left on the premises. 5 
 
 SEC. 2. A SALE OR LEASE OF LAND FOR THE PRO- 
 DUCTION OF OIL OR GAS is A DISPOSITION OF THE LAND 
 ITSELF INFANTS CANNOT MAKE A VALID DEED OR 
 LEASE GUARDIAN MUST, WHEN DISPOSING OF INFANT'S 
 LANDS, COMPLY WITH THE LAW IN REFERENCE TO THE 
 DISPOSITION OF REAL ESTATE. Oil and gas are miner- 
 als and, as minerals, are part of the land, and any dis- 
 position made of the oil or gas is a disposition of the 
 
 1. Ott vs. Sprague, 27 Kan., 624; Wallace vs. Travelers Ins. Co., 
 
 54 Kan., 442; 38 Pac., 489; 25 L. R. A., 806. 
 
 2. Wallace vs. Travelers Ins. Co., 54 Kan., 442; 38 Pac., 489. 
 
 3. Gage vs. Wheeler, 129 111., 197. 
 
 4. Gaylord vs. Place, Cal., ; 33 Pa., 484. 
 
 5. Palmer Oil & Gas Co. vs. Parrish, 61 Kan., 311; 59 Pac., 640. 
 
142 Sale of Oil and Gas in Land. 
 
 land; 1 and any sale or disposition of the oil or gas is a 
 sale or disposition of an interest in the land. 8 Hence, 
 when an attempted disposition is made of the oil and 
 gas rights by infants, it must come within the common 
 law rule that a deed of an infant is voidable. 3 So when 
 a guardian leased an infant's lands for the purpose of 
 developing the lands for oil and gas, and the law of 
 the state provided that no sale or disposition could be 
 made of the infant's lands by the guardian without the 
 approval of the orphan's court and the court did not 
 approve of the lease, the lease of the lands for the de- 
 velopment of oil was held to be a disposition of the in- 
 fant's lands and void. 4 So also upon an application for 
 the sale and disposition of the oil and gas right in an in- 
 fant's land, which was held in remainder by the infant, 
 and the decree provided that the infant was to receive a 
 certain portion of the money realized and the life tenant 
 another portion of the proceeds, the court held that a 
 disposition of the oil was a disposition of the corpus of 
 the estate; and that the life tenant was entitled to no 
 portion of the corpus of the estate, as that was the prop- 
 erty of the infant; and the life tenant was entitled only 
 to the income from the proceeds of the sale of the oil 
 and the infant remainderman was entitled to the whole 
 fund as taking the place of the land at the death of the 
 life tenant. 5 So where a will gives a life estate to one 
 person and the remainder in fee of seven-tenths of the 
 property to infants, with power of appointment, under 
 a will, by a life tenant, the interest of the infants is a 
 vested interest and the infants cannot be made parties 
 to a suit by representation and any judicial sale made of 
 the lands is void where the infants were not parties to 
 
 1. Wilson vs. Hughes, 43 Va.. 826; 28 S. E., 781; 39 L. R. A., 292; 
 
 Funk vs. Hadleman, 53 Pa., 229. 
 
 2. Wilson vs. Hughes, 43 Va., 826; 28 S. E., 781. 
 
 3. Cole vs. Pennoyer, 14 111., 158; Engleberth vs. Pritchett, 40 
 
 Neb., 195; Brown vs. Farmers & Mechanics' Nat. Bank, 88 
 Tex., 265. 
 
 4. Stoughton's Appeal, 88 Pa., 198. 
 
 5. Wilson vs. Hughes, 43 W. Va., 826; 28 S. E., 781; Blakely vs. 
 
 Marshall, 174 Pa., 425; 34 Atl., 564. 
 
Infants Not Estopped. 143 
 
 the suit and the life tenant and owner of the other three- 
 tenths has no right to drill for oil on the premises. l 
 
 SEC. 3. INFANTS NOT ESTOPPED BECAUSE NO ACT 
 WAS DONE TO PREVENT THE PURCHASERS UNDER A DE- 
 CREE FROM MAKING IMPROVEMENTS; OR FROM PAYING 
 OFF OTHER CLAIMENTS, OR BY THE STATUTE OF LIMITA- 
 TIONS UNTIL FULL PERIOD HAS RUN; OR WHERE THE 
 FATHER TRADED THE INFANT'S LAND AND TOOK OTHER 
 LANDS IN PLACE OF THE INFANT'S. Where lands have 
 been sold under a decree of the court, and infants who 
 were not made parties to the suit, had a vested estate, 
 in remainder in the lands, and possession of the lands 
 was delivered to the purchaser by the life tenant, the 
 infant remainderman will not be estopped from enjoin- 
 ing the purchaser or his grantee from taking oil from the 
 land, simply because they did no act to prevent or hin- 
 der the purchaser from expending large sums of money 
 in sinking numerous oil wells on the premises, 2 for when 
 the legal title is vested in one person, it takes a clear 
 case of estoppel to have the effect of divesting the title 
 from one person and placing in another; 3 and the fact 
 that owners did not make themselves parties to a suit, 
 when they knew that their lands were to be sold for their 
 ancestor's debts, is not sufficient, and to be parties was 
 necessary to divest their title. 4 And the fact that the 
 tenants knew that other claimants to the lands were 
 bought off is not sufficient to estop the real owners. 5 So 
 where laches is set up as a defense against the infant 
 tenants in remainder, under a judicial sale of their lands, 
 in a suit, to which they were not made parties, the stat- 
 ute does not begin to run until the death of the life ten- 
 ant, and then the infants have the full period to recover 
 
 1. Williamson vs. Jones, 39 W. Va., 231; 19 S. E., 436; 25 L. E. 
 
 A., 222; Williamson vs. Jones, 43 W. Va., 562; 27 S. E., 411; 
 38 L. R. A., 694. 
 
 2. Williamson vs. Jones, 39 W. Va., 231; 19 S. E., 436. 
 
 3. Williamson vs. Jones, 43 W. Va., 562; 27 S. E,, 411. 
 
 4. Williamson vs. Jones, 43 W. Va., 562; 27 S. E., 411. 
 
 5. Williamson vs. Jones, 43 W. Va., 562; 27 S. E., 411. 
 
144 Lease of Lunatic's Lands. 
 
 the lands. l So, where the mineral rights of infants were 
 sold by the father of the infants, and the minerals are 
 taken from the lands by the purchaser, and other lands 
 are given to the infant tenants, in place of the lands sold 
 by the father, the infants' title still remains vested in 
 them and the infants may recover the value of the min- 
 erals in place the time they were mined. * 
 
 SEC. 4. SALE OR LEASE BY A PERSON NOT AD- 
 JUDGED INSANE is VOIDABLE ONLY; PURCHASER HAS A 
 *LIRN ON THE LAND FOR THE MONEY PAID WHEN AD- 
 JUDGED INSANE SALE OR LEASE VOID. A deed or con- 
 veyance by a person of unsound mind, not under guard- 
 ianship, conveys the seizen; 8 and when an unadjudged 
 lunatic sells his lands for a valuable consideration, and 
 the purchaser has no notice of his lunacy, the title passes 
 to purchaser since the deed of a person who is not ad- 
 judged a lunatic is voidable only and not void. 4 So when 
 a suit is brought by the person who is insane to set aside 
 the conveyance, the courts will declare the consideration 
 paid to the lunatic a lien on the land; 5 but when a per- 
 son is adjudged insane and a conservator is appointed 
 by the court to take charge of the lunatic's lands, and 
 the law provides that no disposition shall be made of the 
 lunatic's lands without an order of the court, an oil or 
 gas lease made by the conservator without an order of 
 the court is void, 6 and where the statute provides that 
 notice must be given to the incompetent person before 
 
 1. Williamson vs. Jones, 43 W. Va., 562; 27 S. E., 411. 
 
 2. Keys vs. Pittsburg & Wheeling Coal Co., 58 Ohio, 246; 41 L. 
 
 R. A., 681; 50 N. E., 911. 
 
 3. Grouse vs. Holdman, 19 Ind., 30; Wait vs. Maxwell, 5 Pick., 
 
 217. 
 
 4. Odom vs. Riddick, 104 N. C., 515; Riggan vs. Green, 80 N. C., 
 
 515. 
 
 5. McFalls vs. Brown, 37 N. W. Rep., 784; Burnham vs. Kidwell, 
 
 113 111., 425; Scanlan vs. Cobb, 85 111., 296. 
 
 6. South Penn. Oil Co. vs. Mclntyre, 44 W. Va.. 296. 28 S. E., 922; 
 
 Bates vs. Dunham, 58 la., 308; Stoughton's App., 88 Pa., 
 198. 
 
Deed or Lease by a Married Woman. 145 
 
 the appointment of a conservator the want of such notice 
 will make the appointment void. l 
 
 SEC. 5. DEED OF A MARRIED WOMAN VOID AT COM- 
 MON LAW COMMON LAW RULE ABROGATED BY STATUTE 
 IN MOST STATES DEED MUST BE THE JOINT ACT OF HUS- 
 BAND AND WIFE WHEN STATUTE REQUIRES A VOID 
 DEED WILL, NOT CREATE AN ESTOPPEL AND CANNOT BE 
 RATIFIED. A deed by a married woman is absolutely 
 void in many of the states, unless the deed is made as 
 the statute directs. The statutes of many of the states 
 permit a married woman to convey her lands, on the 
 husband's joining" in the deed and the wife being exam- 
 ined separate and apart from her husband, by the person 
 who takes the acknowledgment of the deed and the cer- 
 tificate of acknowledgment setting forth that the wife 
 was so examined separate and apart. 2 The deed must 
 be the joint act of the husband and wife and the deed 
 must be so executed. 3 So where a deed is made and does 
 not comply with the statute of the state in which the 
 land is situated, the deed is not merely voidable but is 
 absolutely void, and such a deed is of no more effect in a 
 court of equity than in a court of law; 4 and a deed so 
 executed will not be effective to create an estoppel in pals 
 where the married woman acknowledged that the deed 
 was valid, as the deed must speak for itself; 5 and such 
 a deed can only be ratified by the execution of a valid 
 deed. 6 
 
 SEC. 6. SALE OR LEASE OF OIL LANDS BY MARRIED 
 WOMAN. Where the statute provides that "all legal dis- 
 
 1. South Penn. Oil Co. vs. Mclntyre, 44 W. Va., 296; 28 S. E., 922; 
 
 Chase vs. Hathaway, 14 Mass., 222. 
 
 2. Metteler vs. Miller, 129 111., 630; Central Land Co. vs. Laidley, 
 
 32 W. Va.,134. 
 
 3. Stall vs. Harris, 51 Ark., 294. 
 
 4. Glidden vs. Strapler, 52 Pa., 402; Laidley vs. Central Land 
 
 Co., 30 Va., 505; Central Land Co.vs. Laidley, 32 W. Va.,134. 
 
 5. Leftwich vs. Neal, 7 W. Va., 569; Elliot vs. Piersol, 26 U. S., 
 
 328; Barnert vs. Shackleford, 6 J. J. Marsh, 532. 
 
 6. Glidden vs. Strupler, 52 Pa., 402. 
 
146 When Lease is Valid. 
 
 abilities of a married woman to make contracts are here- 
 by abolished except as herein otherwise provided," and 
 the same statute provided, "That she shall not enter into 
 any executory contract to sell, convey or mortgage her 
 real estate; nor shall she convey or mortgage the same, 
 unless her husband join in such contract, conveyance or 
 mortgage," the wife has no power without her husband 
 joining in the execution of the lease, to give a lessee a 
 right by lease to drill and remove the oil from the land 
 and a right to lay pipes for the transportation of the oil 
 on the land, without the husband joining in the execu- 
 tion of the lease, as the lease was, in effect, a disposi- 
 tion of the land. 1 The court there said: "That natural 
 gas and oil, after they are brought to the surface from 
 their natural reservoirs under the soil are personal prop- 
 erty, * * but whether they are to be considered part 
 of the real estate while in the earth is the question, * * 
 for if they are a part thereof appellee could not, without 
 her husband joining, make a valid contract which would 
 take away or diminish the value of the real estate itself. 
 That growing timber, stone before quarried and coal, 
 lead and iron before mined are part of the realty itself, 
 is so well settled that we deem it unnecessary at this 
 time to cite authorities. Oil and gas are natural pro- 
 ducts and their source is in the soil or rocks of the earth. 
 True, they are like water liquid in their nature, and 
 they are also like water, mineral. It is said that water, 
 oil and gas should be classed by themselves, and are 
 termed minerals ferae naturae" But it has been held by 
 the Supreme Court of the same state that where a lease 
 was made by a married woman, her husband not join- 
 ing, for the production of oil and gas, and it contained 
 a provision that if no well was completed within six 
 months the lessee was to pay the lessor the sum of 
 $80 per annum, and no well was completed within the 
 time specified in the lease and the money was paid by the 
 lessee to the lessor, who in the meantime had become a 
 
 1. Columbus Oil Co. vs. Blake, 13 Ind. App., 680; 42 N. E., 234. 
 See also Gas Co. vs. DeWitt, 130 Pa., 235; 18 Atl., 724. 
 
Deed Defectively Executed. 147 
 
 widow, and at the time she received the money she agreed 
 to extend the lease for one year, but before the expira- 
 tion of the year she made a second lease to a third per- 
 son and a controversy arose between the first and second 
 lessee as to their right to the premises to prospect for oil 
 or gas, no oil or gas was yet found by either party, the 
 first lessee was entitled to the possession of the premises 
 to prospect for oil and gas. The lease was held not void 
 but voidable and that the promise of the lessor to extend 
 the lease was binding as between the first and second 
 lessee when such a promise was made after the death of 
 her husband. The court, however, drew a distinction be- 
 tween oil and gas leases and leases for ordinary purposes, 
 because the interest conveyed by oil and gas leases may 
 be lasting and enduring but where no oil or gas is yet 
 found the right conveyed by the lease is still inchoate 
 and has no effect as to the disposition of the fee until 
 the oil or gas is discovered. The right of the lessor to 
 the freehold is not involved where the action is between 
 a lessee and a subsequent lessee who are engaged in pros- 
 pecting for oil and gas and no oil or gas was yet found, 
 since the only question involved is, which lessee has the 
 exclusive right to drill. * 
 
 SEC. 7. LEASES DEFECTIVELY EXECUTED. Where 
 a lease was made by the lessor and his wife for the pur- 
 pose of drilling and operating for oil and gas and the 
 lease was witnessed only by one witness and the laws of 
 that state require all leases of that character to be ex- 
 ecuted by two witnesses, and the lessors made a second 
 lease of the same land, the first lease was held to be suf- 
 ficient to give the lessee the privilege to enter the land 
 to drill and operate for oil and gas, and was good in 
 equity against the second lessee who had actual notice 
 of the first lease. 2 The Supreme Court of the same state 
 in a later case did not agree with the rulings of the Fed- 
 eral Court and held that a lease of lands for the purpose 
 
 1. Heal vs. Niagara Oil Co., 150 Ind., 483; 50 N. E., 482. 
 
 2. Allegheny Oil Co. vs. Snyder, 106 Fed. R., 764. 
 
148 Deed Not Witnessed. 
 
 of developing the lands for the production of oil and gas 
 required the signatures of two subscribing witnesses as 
 to the signature of the lessor, where the lease was for 
 a longer period than three years, as the execution of 
 a lease for any other purpose, and that a lease is void 
 where only one witness subscribes to the execution of 
 the lease. The recording of such a lease will impart to 
 it no validity, and where possession is not taken the 
 lessee has no interest in the land; nor will such a lease 
 be reformed in equity so as to give it validity where third 
 persons have acquired the land although such persons 
 have actual notice of the lease. * The court repudiated the 
 doctrine laid down in the case of Allegheny Oil Co. v. Snyder, 
 106 Fed. R., 764, that where a lease was defectively exe- 
 cuted the lease thus executed was a good contract for a 
 lease, and that a subsequent lessee took a second lease 
 subject to the first lease. 
 
 1. Longmeade vs. Weaver, Ohio, ; 60 N. E., 992. 
 
OIL AND GAS LEASES. 
 
 CHAPTER XIII. 
 
 SECTION 1. OIL AND GAS LEASES CONSTRUED MORE 
 STRICTLY AGAINST LESSEES CANNOT BE HELD FOR 
 SPECULATIVE PURPOSES ON THE PAYMENT OF NOMINAL 
 RENT WHEN TITLE VESTS. Courts in giving- construc- 
 tion to leases of land for the production of oil and gas 
 construe the lease strictly against the lessee and liber- 
 ally in favor of the lessor. 1 So where a lease is given 
 and the lease requires the lessee prosecute operations 
 for the production of oil and gas, no title passes to the 
 lessee until oil and gas is discovered, and, if no oil or 
 gas is found, no estate vests in the lessee ;* and when the 
 lease provides that certain wells shall be drilled as test 
 wells, the lease is at an end, if oil or gas is not found in 
 such test wells, unless the lease provides that other tests 
 may be made, if the ones specified fail. 8 The leasing of 
 the land for the production of oil and gas is different 
 from the leasing of land for the production of the solid 
 minerals. In the case of solid minerals they are confined 
 within a particular tract and no adjoining owner can 
 acquire such minerals by operations on his own land, 
 because they are solid and remain in place; but, with oil 
 and gas, any operations for oil and gas, on lands adjoin- 
 ing, or any operations in the same territory, will affect 
 the supply on the lands where no operations are carried 
 on, because the oil and gas will flow from one tract to 
 another and go to the place where the oil or gas has been 
 
 1. Steelsmith vs. Gartlin, 45 W.Va., 27; 29 S. E., 978; 44 L.E.A., 
 
 107; Huggins vs. Daley, 99 Fed. Rep., 606; 48 L. B. A., 
 320. 
 
 2. Venture Oil Co. vs. Fretts, 152 Pa., 451; 25 Atl., 732; Steel- 
 
 smith vs. Gartlin, 45 W. Va., 27; 29 S. E., 978. 
 
 3. Steelsmith vs. Gartlin, 45 W. Va., 27; 29 S. E., 978. 
 
150 Test Wells. 
 
 removed, so the lessee must be prompt in acting and 
 perform all the express as well as the implied conditions 
 of his lease. x And also, as the values of lands which are 
 held for the production of oil and gas are fluctuating 1 and 
 speculative, so the lessee will not be permitted to hold 
 the land indefinitely for a mere nominal rent, when a 
 royalty to be paid out of the oil produced is the chief 
 consideration for the lease. 2 So where a lease is made 
 of land for the production of oil and no oil is found in 
 the land within the time specified in the lease, but a gas 
 well is found by the lessee, in his prosecution of his 
 search for oil, the lessee has no claim to the gas well 
 since the gas does not come within the terms of the 
 lease. 3 
 
 SEC. 2. TEST WELLS No TITLE VESTS UNTIL OIL 
 OR GAS is DISCOVERED WHERE TEST WELLS MUST BE 
 PUT DOWN. In operating for oil and gas the leases gen- 
 erally provide that certain "test" wells shall be put 
 down to determine whether oil or gas exists in the lands. 
 The meaning of the word "test" in a lease of lands, for 
 the production of minerals, is that the lessee shall prose- 
 cute his operations on the lands demised so that the 
 operation may determine whether the minerals covered 
 by the lease exist on the land or not, and the probable 
 extent of the minerals and their value; and the cost of 
 production. 4 So, after the execution of the lease and 
 during the prosecution of the work, in making the tests, 
 no title vests in the lessee, and his title is dependent, 
 upon the condition, that oil or gas is found in such quan- 
 
 1. Huggins vs. Daley, 99 Fed. Rep., 606; 48 L. R. A., 320; Steel- 
 
 smith vs. Gartlin, 45 W. Va., 27; 29 S. E., 978. 
 
 2. Twin Lick Oil Co. vs. Marbury, 91 U. S., 593; Huggins vs. 
 
 Daley, 99 Fed. Rep., 606; 48 L. R. A., 320; Rorer Iron Co. 
 vs. Trout, 83 Va., 397; 2 S. E., 713. 
 
 3. Palmer vs. Truby, 136 Pa. St., 556; 20 Atl., 516. 
 
 4. Petroleum Co. vs. Coal, Coke & Min. Co., 89 Tenn., 381; 18 S. 
 
 W.,65. 
 
Further Test When First Fails. 151 
 
 titles as will warrant the expenditure of money by the 
 lessee in their production. ' 
 
 SEC. 3. IF TEST WELLS FAIL A FURTHER TEST 
 MUST BE MADE WHAT is NOT DUE DILIGENCE UNDER 
 THE TERMS OF A LEASE ABANDONMENT WHAT 
 AMOUNTS TO THE TEST WELL MUST BE PUT DOWN ON 
 THE TRACT SPECIFIED AND THE NUMBER REQUIRED IN 
 THE LEASE. In construing a lease that made particular 
 provisions that a certain test well should be put down, 
 by the lessee, within a certain time, and that certain dis- 
 position would be made of the oil, if found in such quan- 
 tities as to warrant the marketing" of the oil, and the 
 lease made no provision if the well put down failed to 
 produce oil, which was the case, the lessee was held 
 bound to prosecute the work further, so as to determine 
 definitely whether oil existed or not.' 
 
 So where the lease provided that the work of testing 
 the land shall be prosecuted with due diligence to suc- 
 cess or abandonment, the work must be prosecuted con- 
 tinuously after commenced, and, to cease operations for 
 a period of three months, after work was begun, is not 
 due diligence under the terms of the lease. 3 So where a 
 lease was made for the exclusive purpose of operating 
 for oil, and work was to be commenced within ten days, 
 and the work was to be prosecuted with due diligence to 
 success or abandonment, and, that in case no oil was 
 produced in paying quantities, or the lessee ceased to 
 operate for a period of thirty days, the lease was to be 
 void, the failure of the lessee to find oil in a well sunk, 
 and ceasing to prosecute operations for thirty days 
 thereafter abrogated the lease; and the lessee could not 
 insist on the validity of the lease thereafter, for that 
 would be purely speculative, and against public policy 
 to have lands plastered over with leases, so that no 
 
 1. Venture Oil Co. vs. Fretts, 152 Pa., 451; 25 Atl., 732; Huggins 
 
 vs. Daley, 99 Fed. Rep., 606; 48 L. R. A., 320; Steelsmith 
 vs. Gartlin, 45 W. Va., 27; 29 N. E., 978. 
 
 2. Aye vs. Philadelphia Co., 193 Pa., 451; 44 Atl., 555. 
 
 3. Kennedy vs. Crawford, 138 Pa., 561; 21 Atl., 19. 
 
152 Manner of Operating. 
 
 work could be prosecuted under them for the develop- 
 ment of the country, therefore the failure of the lessee to 
 sink other wells, which he had a right to do, ended his 
 rights under it. 1 To put down a test well on lands ad- 
 joining will not relieve the lessee from a forfeiture when 
 the wells were to be put down on the particular lands 
 leased. 2 So the putting down of one well, which was 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 pay rent; 8 and where a large tract of land was 
 leased and a royalty was to be paid for each well, the 
 tract will be treated as several parcels of land and wells 
 will be required to be put down on each or pay a rental.* 
 
 SEC. 4. LESSEE MUST OPERATE AS THE LEASE 
 PROVIDES LEASE ABANDONED WHERE SEARCH is MADE 
 AND NO OIL OR GAS is FOUND AND OPERATIONS HAVE 
 CEASED WHEN THE LESSEE'S RIGHTS ARE AT AN END 
 IN CEASING OPERATIONS PAYMENT OF RENT WILL NOT 
 PREVENT A FORFEITURE WHERE PROSPECTIVE ROYAL- 
 TIES ARE THE CONSIDERATION FOR A LEASE. Where 
 the lease provided the mode, manner and character of 
 the search, all implications in regard to such operations 
 are excluded and the lessee must do as the lease required 
 before title will vest. 5 So, where a lease provided, that 
 in case no well shall be completed within one month from 
 the date of the lease, the lease shall be null and void and 
 without any further effect whatever, unless the lessee 
 paid fifty dollars per month for further delay, and the 
 lease was to run for a period of five years, and the lessee 
 commenced operations but three months had expired be- 
 fore the completion of the test well, and, for that time, 
 the lessee paid at the rate of fifty dollars per month for 
 
 1. Monroe vs. Armstrong, 96 Pa., 307. 
 
 2. Carnegie Nat. Gas Co. vs. Philadelphia Co., 158 Pa., 317; 27 
 
 Atl., 951; Jamestown & E. R. Co. vs. Egbert, 25 Atl., 151; 
 152 Pa., 53. 
 
 3. Ahrns vs. Chartiers Valley Gas Co., 188 Pa., 249; 41 Atl., 739. 
 
 4. Jamestown & E. R. Co. vs. Egbert, 152 Pa., 53; 25 Atl., 151. 
 
 5. Steelsmith vs. Gartlin, 45 W. Va., 27; 29 S. E., 978. 
 
Abandonment of Search. 153 
 
 the delay; but, on the completion of the test well, which 
 was dry, the lessee ceased operations, and also removed 
 its machinery from the premises-, and plugged the well 
 which was sunk and removed the casing therefrom, the 
 lessee was held to have no title to the oil or gas during 
 the progress of the search and title would not vest unless 
 the oil or gas was discovered in the search. 1 The only 
 right a lessee can acquire under a lease, in the first in- 
 stance, is a license to make the search; and, after the 
 search was commenced and prosecuted, and no oil or gas 
 was found, and the lessee ceased to operate further, the 
 lessee had exercised all the powers which the lease con- 
 ferred upon the lessee, and, when operations once com- 
 menced, ceased to be continued, the power or the right 
 of the lessee was at an end and no other operations could 
 be commenced without a new lease. 8 So a lease for a 
 term of five years and "as much longer as oil or gas is 
 found in paying quantities", and providing that operations 
 were to begin within thirty days, and a well completed 
 within ninety days, and, for failure to commence and 
 complete a well within the time specified, to pay a for- 
 feiture of fifty dollars; and the lease further provided 
 that the lessee was to receive one-seventh of the oil or 
 gas produce as a royalty, and a nominal consideration 
 of one dollar as a consideration for the lease, the com- 
 mencement of operations and the completion of a well, 
 within the time specified, in the lease, was a condition 
 precedent to the vesting of any title or estate in the 
 lessee; therefore where no operations were commenced 
 by the lessee, no title vested. No judicial proceed- 
 ings are necessary to avoid such a lease, as no title 
 ever vested, and the fifty dollars, to be paid in case of 
 failure to perform the work provided in the lease, was 
 but a mere security for its performance, and the payment 
 of the fifty dollars or a tender of the money to the lessor 
 
 1. Steelsmith vs. Gartlin, 45 W. Va., 27; 29 S. E., 978; Huggins 
 
 vs. Daley, 99 Fed. Rep., 606; 48 L. R. A., 320; Venture Oil 
 Co. vs. Fretts, 152 Pa., 461; 25 Atl., 732. 
 
 2. Steelsmith vs. Gartlin, 45 W. Va., 27; 29 S. E., 978. 
 
154 Optional Leases. 
 
 did not relieve the lessee from sinking the wells, since 
 the prospective royalty was the consideration for the 
 lease. * So where a lease was for a period of ten years, 
 and as much longer as oil or gas is found in paying 
 quantities, providing that a test well was to be put down 
 by a certain time, on a tract of land, and in case no well 
 was put down to pay the lessor ten cents per acre an- 
 nually, the lessee put down a well within the time speci- 
 fied in the lease, but the well was dry, and the lease 
 provided further, that the lessee should proceed with 
 due diligence to put down test wells on the land, but the 
 lessee made no further tests for a period of ten years, 
 the lease was held to be at an end, when the lessee 
 ceased to operate under a belief no oil existed after sink- 
 ing the test well. 1 So a failure to take possession of 
 land and commence operations for a period of twelve 
 years will give the lessee no rights to the land, where 
 the consideration for the lease was prospective royalties 
 to be realized from the product. 3 So where operations 
 were postponed for twenty years the lessee's rights are 
 gone. 4 And where part of the product was to be turned 
 over to the lessor as a royalty, all rights under a lease 
 were held to be forfeited in equity where no work was done 
 for two years; 6 and where a test is made, and no oil is 
 found, and, on the removal of the machinery from off the 
 premises, the lessee stated to the lessor that operations on 
 the premises were at an end, the lease will be so consid- 
 ered by the courts, though the lease is not delivered up. e 
 
 SEC. 6. OPTIONAL LEASES WHEN VOID LEASE 
 MUST BIND BOTH PARTIES OR WILL, BE VOID FOR WANT 
 
 1. Huggins vs. Daley, 99 Fed. Rep., 606; 48 L. R. A., 320. 
 
 2. Foster vs. Elk Fork Oil & Gas Co., 61 U. S. App., 576; 90 Fed. 
 
 Rep., 178; Elk Fork Oil & Gas Co. vs. Jennings (C. C. W. 
 Va.), 84 Fed. Rep., 839; Venture Oil Co. vs. Fretts, 152 
 Pa., 451; 25 Atl., 732. 
 
 3. Barnhart vs. Lockwood, 152 Pa., 82; 25 A., 237. 
 
 4. Wagner vs. Malloy, 41 App. Div., 126. 
 
 5. Cole vs. Taylor, 8 Pa., Super. Ct., 19. 
 
 6. Stage vs. Boyer, 183 Pa., 560; 38 Atl., 1035; May vs. Hazel- 
 
 wood Oil Co., 152 Pa., 518; 25 Atl., 564. 
 
Optional Lease Revocable. 155 
 
 OF MUTUALITY AN OPTIONAL LEASE MAY BE REVOKED 
 AT ANY TIME BY LESSOR BEFORE OPERATIONS ARE 
 BEGUN; NOR NEED THE LESSEE PAY RENT; AND DEATH 
 PUTS AN END TO THE OPTION; AND THE LESSEE NEED 
 NOT PAY RENT OR SINK A WELL OPTIONAL LEASES 
 VOID IN EQUITY WHEN A LEASE is NOT AN OPTION 
 NOMINAL CONSIDERATION FOR A LEASE. Where an oil 
 or gas lease fails to bind the lessee to prosecute the 
 work diligently, and the consideration for the lease is 
 part of the oil or gas produced, the lease is void for the 
 want of mutuality. * So where the lessee has a right to 
 surrender the lease, at any time, and be released for all 
 liabilities under the lease, the lease is void for the want 
 of mutuality, when the consideration for the lease is a 
 part of the product, hence the lessor may revoke the 
 lease at any time before the lessee commences operations 
 on the land for the production of oil or gas. * So a lease 
 giving the lessor a part of the oil produced as a consid- 
 eration for the lease, and so much per well for gas, and, 
 in case no wells are sunk, the lease was to be null and 
 void, unless the lessee paid a certain sum in advance for 
 each quarter, the lease is but an option and does not 
 bind the lessee to pay any sum, and may be avoided by 
 either party. 3 Since a lease which does not bind the 
 lessee to do anything and permits the lessee to surrender 
 the lease at any time, such a lease confers no right on 
 the lessee, other than a mere right to commence opera- 
 tions, so the death of the person who executed the lease 
 will put an end to the right of the lessee to enter. 4 
 Where a lease imposes no obligation on the lessee to 
 sink wells, and possession was never acquired by the 
 lessee, the lease is but an option and the lessee is not 
 bound to pay a rental for any delay in sinking the well 
 
 1. Foster vs. Elk Fork Oil & Gas Co., 61 U. S. App., 576; 90 Fed. 
 
 Rep., 178. 
 
 2. Eclipse Oil Co. vs. South Perm. Oil Co., 47 W. Va.,84; 34 
 
 S. E., 923. 
 
 3. Snodgrass vs. South Penn. Oil Co., 47 W. Va., 84; 35 S. E., 
 
 820. 
 
 4. Trees vs. Eclipse Oil Co., 47 W. Va., 107; 34 S. E., 933. 
 
156 Sufficient Consideration. 
 
 because the lease did not impose such an obligation on 
 the lessee and cannot be compelled to pay for something 
 which the lease did not require to be performed. 1 A 
 lease, by which the lessee may postpone operations on 
 the payment of a small sum of money, will not be upheld 
 in equity, especially when the lessee led the lessor to 
 believe that operations would begin in a short time after 
 the execution of the lease, since leases so drawn are 
 regarded as options. 2 But, in some courts, a lease recit- 
 ing a nominal consideration of one dollar was held not 
 to be void for the want of mutuality, where the lease was 
 to run for two years with the privilege of twenty-five 
 years on the payment of one dollar per acre. 3 A lease 
 which gives the lessee a right to either pay a rental or 
 sink a well, as the lessee might choose, binds the lessee 
 to do one or the other, where other provisions of the 
 lease fix the time in which operations must begin, and 
 the lessor retains a certain part of the oil produced and 
 so much a year for gas wells and a right to declare a for- 
 feiture. 4 So a lease reciting a consideration of one 
 dollar, by which the lessor demises the premises for two 
 years and as long thereafter as oil and gas is found in 
 paying quantities, not to exceed 25 years, and the lessee 
 to pay a royalty on the oil produced, and where no well 
 was sunk within two years the lessee to pay one dollar 
 an acre each year thereafter rental, or the lands to be 
 forfeited for failure to pay, was held not to be an option 
 and the one dollar paid at the execution of the lease 
 supported the grant for the two years and also the privi- 
 lege of extending the time. 5 
 
 SEC. 6. OPERATIONS MUST BE PROSECUTED CON- 
 TINUOUSLY WHEN REQUIRED TO BE COMMENCED BY A 
 
 1. Diamond Plate Glass Co. vs. Tennell, 22 Ind. App., 132; 52 
 
 N. E., 168; McKee vs. Colwell, 7 Pa., Super. Ct., 607. 
 
 2. Eclipse Oil Co. vs. South Perm. Oil Co., 47 W. Va., 107; 34 S. 
 
 E.,923. 
 
 3. Brown vs. Ohio Oil Co., 21 Ohio C. C., 117. 
 
 4. McMillan vs. Philadelphia Co., 159 Pa., 142; 28 Atl., 220. 
 
 5. Allegheny Oil Co. vs. Snyder, 106 Fed. Rep., 764. 
 
Time the Essence of Oil and Gas Leases. 157 
 
 CERTAIN TIME TIME THE ESSENCE OP OIL AND GAS 
 LEASES. Under the provisions of a lease that the lessee 
 must beg-in boring 1 for oil by a certain date, the lease 
 contemplates that the lessee shall continue operations 
 thereafter until the land is tested to the satisfaction of 
 the lessee; and, to commence within the time specified in 
 the lease, and then to postpone operations for an indeli-~ 
 nite term, is not a compliance with the lease. 1 And the 
 fact that the lessee was prevented on account of the 
 inclemency of the weather will not excuse the lessee.* 
 And where the lessee is required to commence a well by 
 a certain time and complete the same by a certain time, a 
 forfeiture may be declared for not commencing 1 opera- 
 tions within the time specified or completing 1 the well 
 within the time specified after operations are begun.* 
 So where a lease provided that work shall beg-in by a 
 certain time and no work was done on the premises, and 
 the lessor reserved the rig-ht to declare forfeiture for 
 non-compliance therewith, the lease becomes absolutely 
 void as to the lessee upon the expiration of the time lim- 
 ited. 4 The courts are inclined to the doctrine that time 
 is the essence of all contracts relating 1 to mineral prop- 
 erty, though the contract does not so provide. B 
 
 SEC. 7. WHEN WORK is COMMENCED IN COMPLIANCE 
 WITH THE LEASE QUESTION FOR THE JUR^ BUYING 
 MACHINERY, LETTING CONTRACT OR WORKING UP LUM- 
 BER TO BE USED IN OPERATIONS ARE SUFFICIENT COM- 
 MENCEMENT NOTICE MUST BE GIVEN LESSEE WHEN 
 LEASE REQUIRES AND LESSEE HAS A RIGHT TO PAY A 
 RENTAL ESTOPPEL OF LESSOR THOUGH THE TIME HAS 
 EXPIRED. The commencement of the work to drill for 
 oil or gas is complied with by beginning work in the 
 afternoon of the last day, in which work was to com- 
 
 1. McNish vs. Stone, 152 Pa., 457; 23 Pitts. L. J. N. S., 232. 
 
 2. Cryan vs. Ridelspergen, 7 Pa. Co. Ct., 473; Steelsmith vs. 
 
 Gartlan, 45W. Va.,27. 
 
 3. Cleminger vs. Baden Gas Co., 159 Pa., 16; 28 Atl., 293. 
 
 4. Island Coal Co. vs. Combs, 152 Ind., 379; 53 N. E., 452. 
 
 5. Waterman vs. Banks, 144 U. S., 394. 
 
158 When Operations are Begun. 
 
 mence, and the prosecution of the work thereafter in 
 good faith. 1 So an oil lease which required that opera- 
 tions to sink a well should begin within four months 
 after the execution of the lease, and that such operations 
 should be prosecuted with due diligence, it is a question 
 of fact for the jury to determine whether the hauling of 
 lumber on the ground, to be used in a well, to be sunk on 
 the premises, on the day before the lease expired^ is a 
 commencement of operations when there is evidence of 
 men familiar with the business that such an act is 
 regarded as commencing operations. * So where the lessee 
 selected the place where the well would be drilled and 
 hauled lumber there to be used in the derrick, and the 
 drilling machine, and necessary tools were ordered, and 
 the contract for sinking the well was made, the facts 
 showed a sufficient compliance with the lease, that opera- 
 tions were to begin by a certain time, though the drilling 
 machine and tools were not on the ground because the 
 roads were bad on account of heavy storms which pre- 
 vailed for some time. 3 So when lumber is brought on 
 the ground and partially worked up on the last day, 
 before the lease would become void for not beginning 
 operations, the acts of the lessee were held to be suffi- 
 cient, when done in good faith, to save the lease from for- 
 feiture. 4 Where a lease was subject to be forfeited for 
 not beginning operations within a certain time upon a 
 written notice from the lessor, and the lease gave the 
 lessee a right to continue the lease on the payment of a 
 rental, a notice to the lessee of a forfeiture is required in 
 order to work a forfeiture, though operations were not 
 begun within the time specified in the lease, because the 
 lessee might exercise his right to pay a rental to save 
 the lease from forfeiture, and the making of a second 
 lease is not a sufficient notice. * And where the lessor, 
 
 1. Henderson vs. Farrell, 183 Pa., 547; 38 Atl., 1018. 
 
 2. Forney vs. Ward, Tex., Civ. App. ; 62 S. W., 108. 
 
 3. Fleming Oil & Gas Co. vs. South Penn. Oil Co., 37 W. Va., 
 
 C45; 17 S. E.,203. 
 
 4. Duffield vs. Russell, 19 Ohio C. C., 266. 
 
 5. South Penn. Oil Co.vs. Stone (Ten. Ch. App. ) , 57 S. W. , 374. 
 
Forfeiture for Failure to Begin Work or Pay Rental. 159 
 
 either by express consent or by acts after the expiration 
 of the time to do the work, permitted the lessee to 
 expend time and money in putting down wells, the lessor 
 will be estopped from declaring the lease forfeited; 1 or 
 where work was done after a default in the payment of 
 the rent due, and the lessor does not object, the leasejs 
 still in force; 2 or where four wells were to be commenced 
 and completed in the second year, two the first six months 
 two the last six months, the lease was substantially com- 
 plied with by putting the four wells at any time during 
 the year. 8 A well is considered as commenced and com- 
 pleted if a well is drilled and oil is found, though the 
 lessee thereafter removes the casing and plugs the well; 4 
 but not so if oil is required to be produced in paying 
 quantities; 8 or the lease calls for an oil well and only a 
 gas well is produced. 6 
 
 SEC. 8. FORFEITURE LEASE FORFEITED WHEN 
 WORK is NOT BEGUN OR THE RENTAL PAID AS THE 
 LEASE PROVIDES No RELIEF GIVEN IN A COURT OF 
 EQUITY TO A LESSEE THOUGH RENT is PAID AFTER FOR- 
 FEITURE WHERE ANOTHER LEASE WAS MADE BEFORE 
 THE RENT WAS PAID LEASE MAY BE FORFEITED BY 
 ABANDONMENT THOUGH THE LEASE CONTAINS NO 
 CLAUSE OF FORFEITURE. Leases of land for the pro- 
 duction of oil or gas usually provide that, in the event 
 the lessee fails to operate for oil and gas, the lessee has 
 the option of paying a certain rental, in place of operat- 
 ing on the premises, and that such rental will be paid 
 during the time the lessee fails to begin operations after 
 the time specified in the lease. So a lease which pro- 
 vided that operations shall begin within nine months, or 
 for failure to begin work within the time specified in the 
 lease, a certain rental was to be paid, and the money was 
 
 1. Elk Fork Oil & Gas Co. vs. Jennings, 84 Fed. Rep., 839. 
 
 2. McCarthy vs. Mellon, 5 Pa. Dist. R., 425. 
 
 3. Thomas vs. Kirkbride, 15 Ohio C. C., 294. 
 
 4. Stahl vs. Van Vleck, 53 Ohio St., 136; 41 N. E., 35. 
 
 5. Kennedy vs. Crawford, 138 Pa., 561; 21 Atl., 19. 
 
 6. Palmer vs. Truby, 136 Pa., 556; 20 Atl., 516. 
 
160 Relief Not Given in Equity. 
 
 to be deposited in the hands of a certain person each and 
 every month, after the expiration of nine months, and, 
 in case the lessee failed to begin operations or pay the 
 rent, the failure was to work an absolute forfeiture, was 
 held to be forfeited, where no operations were begun 
 under the lease for a period of thirty-five months, and 
 no rent was ever paid until about thirty-one months 
 after the execution of the lease, and about twenty-five 
 months after the execution of the lease, the lessor exe- 
 cuted a second lease to the premises, with notice of the 
 first lease to the lessee, and after the execution and 
 recording of the second lease, the lessor accepted all the 
 rent due on the first lease, though its acceptance was 
 first refused, and the first lessee began operations with- 
 out the consent of the second lessee and found large 
 quantities of oil and continued in possession until a suit 
 was brought by the second lessee. The first lessee's 
 rights were barred since the lease was held upon the 
 express condition that the lessee would begin operations 
 in nine months, or for failure to do so, to pay a certain 
 monthly rental, and for failure to do either, the lease 
 was absolutely forfeited by the execution of the second 
 lease; and the acceptance of the rent, after the execu- 
 tion of the second lease, could not affect the rights of 
 the second lessee; 1 nor will the mere payment of the 
 rent, after the execution of the second lease, give the 
 first lessee any standing in a court of equity for relief 
 against the forfeiture. 9 So where the lessee was to 
 commence operations within sixty days, and, for failure 
 to do so, a certain monthly rental was to be paid, and 
 the failure on the part of the lessee to do one or the 
 other, was to work a forfeiture of the lease and the lessor 
 could enter and dispose of the lands as if no lease was 
 made, time was held to be the essence of the lease 
 because one's lands might be drained of all the oil by 
 operation on adjacent lands, and for failure of the lessee 
 
 1. Guffey vs. Hukill, 34 W. Va., 49; 11 S. E., 754; Hukill vs. 
 
 Meyers, 36 W. Va., 639; 15 S. E., 157. 
 
 2. Hukill vs. Guffey, 37 W. Va., 524; 16 S. E., 541. 
 
When Lease Not Forfeited. 161 
 
 to begin operations within the time specified; and, after 
 the expiration of the time to begin operations, the failure 
 to pay the monthly rental worked an absolute forfeiture 
 of the lease and the second lessee acquired good title. 1 
 So a lease containing similar provisions was properly 
 declared forfeited by the lessor, where no operations 
 were begun within the time, and a monthly rental was 
 to be paid each month, and several months' rent was due, 
 and unpaid, though the rent for the last month was paid. * 
 And where the lease makes no provision as to a forfeiture 
 of the lease, in the event the lessee fails to operate on 
 the premises, or pay the specified rental, the fact, that 
 the lessee does not in any way comply with the lease, 
 may be sufficient from which an inference may be drawn 
 that the lessee abandoned the lease. 3 A person who 
 went upon the land with his machinery for the purpose 
 of putting down a well, at the request of an interested 
 party, but failed to put down the well because consent 
 could not be obtained from another interested party, may 
 take a lease from the owner after a declaration of for- 
 feiture of the first lease and can hold it against the first 
 lessee although he entered as agent of one of them. 4 
 
 SEC 9. A LEASE WILL NOT ipso facto BECOME VOID 
 OR FORFEITED BECAUSE THE PROVISIONS ARE NOT FUL- 
 FILLEDTHE LEASE MUST PROVIDE THAT THE NONFUL- 
 FILLMENT OF THE PROVISIONS WILL BE GROUNDS OF 
 FORFEITURE BUT THE CONTRARY DOCTRINE THE MOST 
 REASONABLE. A provision in an oil lease that the lessee 
 will begin operations by a certain time, or pay a rental, 
 and there is a provision for a forfeiture, in case the 
 lessee does neither, the lease will not be forfeited ipso 
 facto by doing neither, and the making of a second lease, 
 after the lessee fails to do either, will not have the effect 
 
 1. Brown vs. Vandergrift, 80 Pa., 142. 
 
 2. Duffield vs. Michaels, 97 Fed. R. (C. C. W. Va.), 825; Pen- 
 
 dill vs. Union Min. Co., 64 Mich., 172; Alexander vs. 
 Hodges, 41 Mich., 691; Garner vs. Hannah, 6 Duer., 270. 
 
 3. Marshall vs. Forest Oil Co., 198 Pa., 83; 47 Atl., 927. 
 
 4. Duffield vs. Michaels, 97 Fed. Rep., 825. 
 
162 Lessor Estopped to Declare a Forfeiture. 
 
 of a declaration of a forfeiture by the lessor; 1 and there 
 is no grounds for forfeiture where the lessee neither pays 
 rent or operates on the premises, as the lease required 
 the lessee to do, where the lease does not provide that 
 doing" neither shall work a forfeiture. 2 But the more 
 reasonable doctrine is that the failure of the lessee to 
 begin operations within the time specified, in the lease, 
 will nullify all rig-hts of the lessee under the lease, as 
 such operations are a condition precedent to the vesting- 
 of any title in the lessee; and even a small rental paid 
 will not save the lease from becoming 1 null and void, 
 when the main consideration for the lease is the royal- 
 ties to be realized from operations on the lands, and the 
 rental will be regarded as a security or a penalty that 
 operations will be commenced on the land. 3 A forfeiture 
 was permitted to be declared where the lease provided 
 that certain thing's shall be done by a certain time 
 or pay a forfeiture, and no forfeiture was provided in the 
 lease, the space was left blank." 1 But it was he]d by a 
 lower court the lease must specify the condition the for- 
 feiture may be declared, or it will be of no effect. 5 
 
 SEC. 10. ESTOPPEL OF LESSOR REASONABLE TIME 
 TO PAY. A lessor will be estopped from declaring 1 a for- 
 feiture where a well was not commenced within the time 
 specified in the lease or the money paid for failure to com- 
 mence the well, and the well was not completed until after 
 the time specified, and no money paid for the non- com- 
 pletion of the well, until after the expiration of the time 
 the money was to be paid, and then the lessee paid only 
 the amount due for not commencing- in time, and, some 
 time thereafter, the amount was tendered for the non- 
 
 1. Akin vs. Marshall Oil Co., 188 Pa., 614; 41 Atl., 748. 
 
 2. Marshall vs. Forest Oil Co., 198 Pa., 83; 47 Atl., 927. 
 
 3. Huggins vs. Daley, 99 Fed. Rep., 606; 48 L. R. A., 320; 
 
 Foster vs. Elk Fork Oil & Gas Co., 61 U. S. App., 576; 90 
 Fed. R., 178; Steelsmith vs. Gartlan, 45 W. Va., 27; 27 
 N. E., 978; Venture Oil Co. vs. Fretts, 152 Pa., 451; 27 
 Atl., 732. 
 
 4. Eaton vs. Wilcox, 122 N. Y. 416, 25 N.E. 981. 
 
 5. Vandervoort vs. Dewey, 42 Hun., 68. 
 
Surrender of Lease by Contract. 163 
 
 completion of the well in time, but the lessee refused to 
 accept the money, where the lessor, after the expira- 
 tion of the time, permitted the lessee to select a place for 
 a well on the lands leased, after the time for operation 
 had expired, and sold fuel to the lessee, which was used 
 in the prosecution of the work on the premises, and 
 built a dam for the lessee to furnish water needed in tEe 
 operations. 1 And where the rent was not paid on the 
 day specified in the lease, and the lessee continued to 
 operate on the premises, and the money expended by the 
 lessee, after the ground of forfeiture existed, exceeded 
 three times the annual rent, and the lessee did not act 
 promptly, the lessor will not be entitled to a forfeiture 
 in equity. * So where rent was to be paid for failure to 
 complete a well, a reasonable time is allowed after the 
 expiration of the time to pay, or when the rent becomes 
 due. 3 So a lessor will not be permitted to declare a for- 
 feiture because the wells were not put down in time, 
 when the lessor prevented operations on the premises 
 by enjoining" the lessee. 4 And the sinking of wells on 
 adjoining lands, which may drain the lessor's land, is not 
 a ground of forfeiture unless the lease so provides. 6 
 
 SEC. 11. SURRENDER OF A LEASE BY MUTUAL, CON- 
 SENT ACCEPTANCE BY HEIR BINDING ON CO-HEIR, 
 THOUGH A MINOR, WHEN BENEFITED THEREBY AS- 
 SIGNEE MAY GIVE UP THE LEASE TO LESSOR BUT is 
 NOT RELIEVED FROM STIPULATIONS IN THE ASSIGN- 
 MENT, ALTHOUGH A NEW LEASE is TAKEN LESSEE 
 CANNOT SURRENDER LEASE WHEN THE LEASE WAS MADE 
 BY TENANT FOR LIFE WHO DIED, WHEN THE REMAINDER 
 MAN WISHED TO CONTINUE THE LEASE. Where the work 
 has not been prosecuted, as the lease specified, and the 
 lease is surrendered by the lessee and accepted by the 
 
 1. Duffield vs. Michaels, 102 Fed. E., 820. 
 
 2. Lynch vs. Morsville Fuel & Gas Co., 165 Pa., 518; 30 A., 984. 
 
 3. Northwestern Ohio Nat. Gas. Co. vs. Browning, 15 Ohio C. C., 
 
 84. 
 
 4. Stahl vs. Van Vleck, 53 Ohio St., 136; 41 N. E., 35. 
 
 5. Ohio Oil Co. vs. Harris, 1 Ohio Dec., 157. 
 
164 Ofier to Surrender. 
 
 heir of the lessor, such a surrender will be binding 1 on 
 both parties, and no rent can be recovered under the 
 lease thereafter by the heir; 1 and such a surrender will 
 be binding on the co-heirs, though minors, when the 
 minors will be benefited by the yielding- up of the lease, 
 although the co-heir, who accepted the surrender, was 
 not authorized to act for the minors. 2 So an assignee of a 
 lease can surrender the same to the lessor and take a new 
 lease from the lessor but he will not be relieved from a 
 provision, in the assignment, that in addition to the cash 
 payment for the assignment the assignee was to pay a 
 certain amount for each productive well drilled under 
 the lease; 8 but a lessee has no right to yield up a lease, 
 because the lessor only had a life estate and the lessor 
 died, where the persons who are entitled to the estate 
 signify their desire to keep the lease in force during the 
 unexpired term by joining in the lease. 4 
 
 So where an action was brought to cancel a lease for 
 the production of oil on the grounds that the lessee 
 failed to develop the land, and protect the land by hav- 
 ing wells bored along the lines, so that the land would 
 not be drained through wells on other adjacent lands, 
 and during the pendency of the suit a compromise was 
 offered in writing which was as follows: 
 
 CORSICANA, TEXAS, March 25, 1899. 
 G. W. Croft, Esq. DEAR SIR: The Southern Oil Com- 
 pany will part with its Wilson and Sweatman oil lease, 
 together with their wells located on it, for the current 
 market price of the material in and attached to said 
 wells. This includes all the property, tanks, tank 
 houses, pumping outfit, derrick and every other charac- 
 ter of property owned by the Southern Oil Company 
 on said lease. This proposition is made to you as a 
 compromise for Wilson & Sweatman and is meant as a 
 compromise offer. 
 
 SOUTHERN OIL COMPANY, BY 
 
 S. W. JOHNSON, Pres. 
 
 1. Wilson vs. Goldstein, 152 Pa., 524; 25 Atl., 493. 
 
 2. Wilson vs. Goldstein, 152 P., 524; 25 Atl., 493. 
 
 3. Smith vs. Munhall, 139 Pa., 253; 21 Atl., 735. 
 
 4. L. G. Gas & Coke Co. vs. Patterson, 184 Pa., 364; 39 Atl., 68. 
 
Termination of a Lease. 165 
 
 And at the time of this offer of compromise there 
 was an outstanding- option of the oil lease for a sale of 
 it, and the company requested the plaintiff to wait until 
 a certain day before accepting 1 the compromise, and the 
 plaintiff did as requested, and on that day accepted the 
 compromise, and the company, on that day, also sold a 
 majority of its stock to a third person, and the plain- 
 tiff, with full knowledge of the sale of the stock, 
 elected to accept the compromise, the acceptance of the 
 compromise was held to be binding on all the parties, 
 the purchaser of the stock, as well as the party offering 
 to compromise, and that the sale of the stock did not 
 affect or have the effect of withdrawing- the offer, since 
 the legal title remained in the party offering to compro- 
 mise. Nor was the contract invalid because the offer 
 did not state whether "current market price" referred to 
 new or second-hand materials. * 
 
 SEC. 12. TERMINATION OF A LEASE BY ITS OWN 
 PROVISIONS OIL OR GAS MUST BE PRODUCED WITHIN 
 THE TIME SPECIFIED IN THE LEASE "OR AS LONG AS 
 OIL OR GAS is PRODUCED IN PAYING QUANTITIES" IN A 
 LEASE WILL NOT EXTEND THE LEASE WHEN OIL OR 
 GAS is NOT POUND WITHIN THE SPECIFIED TIME. A 
 lease which provides that the term of the lease shall be 
 ten years and as long thereafter as oil and gas is found 
 in paying quantities, and no oil or gas was found within 
 the ten years the lease was terminated, at the end of ten 
 years; and, if the lessee finds oil and gas after that time, 
 only a tenancy at will exists between the landlord and 
 tenant, and the lease may be terminated at any time. 2 
 So where the lease was for two years and "as much 
 longer as oil and gas would be found in paying quanti- 
 ties," and the lessee was to commence a well in thirty 
 days, and complete the same in ninety days, and, in case 
 no well was put down and completed in the ninety days, 
 the lessee was to pay the lessor sixty dollars annually, 
 
 1. Southern Oil Company vs. Wilson, 22 Civ. App., 534; 56 S. 
 
 S.W., 429. 
 
 2. Cassell vs. Crothers, 193 Pa., 359; 44 Atl., 446. 
 
166 Selection of a Place to Operate. 
 
 and the consideration for the lease was a certain part of 
 the product as a royalty, the lease was terminated at 
 the end of two years, and the payment of the sixty 
 dollars will not serve to prolong the lease since the term, 
 beyond the two years, was dependent on the fact that oil 
 or gas was produced in paying" quantities within the two 
 years, and, as no wells were sunk by the lessee, the oil 
 or gas was not produced in paying quantities. 1 So if the 
 lessee is to produce oil within two years or the lease is 
 terminated, the production of oil by a third person, not 
 acting under the lease, will not prolong the lease if the 
 lessee fails to find the oil within the two years; 8 but if 
 oil or gas is found it is for the lessee to say whether it is 
 produced in paying quantities under a lease conditioned 
 that oil or gas is produced in paying quantities. 8 ' 
 
 SEC. 13. SELECTION OF THE PLACE TO OPERATE 
 UPON, OUT OF A LARGER TRACT BINDS LESSOR 
 ESTOPPEL OF LESSOR WHERE WRITTEN CONSENT is 
 GIVEN OR LEASE PROVIDES THAT SELECTION TO BE 
 MADE BY PARTIES THE LEASE is NOT VOID AS 
 AGAINST THE STATUTE OF FRAUDS RIGHT OF THE 
 LESSEE TO BORE ON THE LANDS AFTER THE TEST is 
 MADE AND OIL OR GAS is FOUND. Where the lease 
 covers a large tract of land and provides that certain 
 parts of the land shall be selected by the lessor, the 
 lessor, in exercising his right to make the selection 
 under the lease, is bound by the selection made when the 
 lessee assented to the selection and bored a well on the 
 tract selected by the lessor; 4 and where the lessor re- 
 served the right in the lease, to select four acres around 
 his premises, upon which no wells could be drilled, 
 by the lessee, without lessor's written consent, the selec- 
 tion of the four acres and the giving of the written con- 
 
 1. Western Penn. Gas. Co. vs. George, 161 Pa., 47; 28 Atl., 
 
 1004. 
 
 2. Thomas vs. Hukill, 34 W. Va., 385; 12 S. E., 522. 
 
 3. Young vs. Forest Oil Co., 194 Pa. St., 243; 45 Atl., 121. 
 
 4. Stahl vs. Van Vleck, 53 Ohio St., 136; 41 N. E., 35. 
 
Covenants Running with Land. 167 
 
 sent, by the lessor, and the sinking 1 of one well, under 
 such a written consent, and the boring" of another well, 
 under the implied consent of the lessor, and the payment 
 of the royalty, by the lessee, will prevent a forfeiture of 
 the lease when the wells are productive and the lessor 
 undertakes to have the lease forfeited on the ground- 
 that the wells are not productive. 1 So where the lessor 
 had the rig-ht to make the selection of the tract to be 
 operated for a test well, when the selection was made, 
 and the lessee found oil, the lessee had a right to oper- 
 ate upon forty acres of the tract, on which oil was found, 
 or upon either of two forty acres adjoining, the lessee 
 has a right to select the other forty acres of which the 
 tract selected by the lessor formed a part. 2 The selec- 
 tion of sites to be worked out of a larger tract does not 
 affect the validity of the lease, nor does the right to 
 change the places designated in the lease; 3 and, where 
 the lease designates the places to be worked by the 
 lessee, and further provides that, if the lessor sees fit to 
 bore more wells, the lessee will have the right to do so, 
 the lessee's rights in the premises are confined to the 
 places designated in the lease, unless the lessor exer- 
 cises the option to have more wells bored; and if the 
 lessor concludes to have more wells put down, the lessee 
 has a right to put them down under the terms of the 
 lease. 4 So when a dispute arises as to the location of 
 the well, whether it is on the lands described in the 
 lease, it is ordinarily a qestion of fact for the jury to 
 determine. 5 
 
 SEC. 14. COVENANTS RUNNING WITH LAND COVE- 
 NANTS TO GIVE PART OF THE PRODUCT AS A ROYALTY 
 COVENANT TO PAY FOR LAND USED IN CONNECTION 
 
 1. Balfour vs. Russell, 167 Pa., 287; 31 Atl., 570. 
 
 2. Stahl vs. Van Vleck, 523 Ohio St., 136; 41 N. E., 35. 
 
 3. Indianapolis Nat. Gas Co. vs. Spaugh, 17 Ind. App., 683; 46 
 
 N. E., 601; Diamond Plate Glass Co. vs. Tennell, 22 Ind. 
 App., 132; 52 N. F.,168. 
 
 4. Duffield vs. Hue, 136 Pa., 602; 20 Atl., 326. 
 
 5. Hamilton vs. Pittock, 158 Pa., 457; 27 Atl., 1079. 
 
168 Personal Covenants. 
 
 WITH OPERATIONS RUN WITH LAND COVENANTS THAT 
 A SHAFT SHALL NOT BE SUNK ON THE LAND RUNS WITH 
 THE LAND. A covenant in a lease that the lessee will 
 give the lessor a part of the minerals produced, will run 
 with the land. 1 So a covenant in a lease that the lessee 
 shall pay a certain per cent of the oil produced to the 
 lessor, runs with the land and will be binding on the 
 assignee or grantee;* and where a lease provided that 
 the lessee shall pay the lessor for the surface of the 
 ground which may be used as a dumping ground, runs 
 with the land and the grantee of the lessor may enforce 
 the covenant. 3 So a covenant in a deed providing that 
 no shaft shall be sunk on the land for the production of 
 the coal which is reserved by the grantor, runs with the 
 land, and is binding on the assignee of the coal rights; 
 though such assignee purchases part of the land subjected 
 to the covenant, since the covenant is for the benefit of 
 other land owners. 1 * And all covenants in a lease to pay 
 rent or royalty in oil and gas leases, runs with the land 
 and is binding on the assignee to pay rent during the 
 time the estate is vested in the assignee. B 
 
 SEC. 15. PERSONAL COVENANTS BINDING ONLY 
 ON THE PARTIES TO THE CONTRACT. Where the lessee 
 of a mine covenanted in the lease that the lessee's entire 
 time would be devoted to the interest of the mine cov- 
 ered by the lease is but a personal covenant between the 
 lessor and lessee, and on the assignment of the lease the 
 lessee may operate another mine and the assignee has 
 no cause to complain; 6 and covenants on the part of the 
 lessors, that, at the expiration of the lease, all the im- 
 provements necessary for the prosecution of the work 
 of mining, and all tools connected therewith, would be 
 
 1. Crawford vs. Witherbee, 77 >^is., 419; 46 N. W., 545. 
 
 2. Akin vs. Marshall Oil Co., 188 Pa., 614; 41 Atl., 748. 
 
 3. Schoaley vs. Butler Min. Co., 9 Kulp., 291. 
 
 4. Electric City Land & Iron Co. vs. West Bridge Coal Co., 187 
 
 Pa., 500; 41 Atl., 438. 
 
 5. See, Section in 19 Infra, Chapter XIV. 
 
 6. Findlay vs. Carson, 97 la., 537; 66 N. W., 759. 
 
Implied Covenant. 169 
 
 purchased by the lessors, are personal to the lessors and 
 do not bind the grantee of the lessors to perform the 
 covenants. 1 So where the owner of a quarry sold the 
 same, and, in the deed covenanted that no other quarry 
 would be opened on the adjoining" lands by the grantor, 
 or permit others to do so, and, if the adjoining lands 
 were sold, the same restrictions should be imposed on 
 the purchasers, the covenant was void as to the pur- 
 chasers. 8 So where the owner of land leased the same 
 to a third person, and then entered into an agreement 
 with the lessee, that, in consideration of a surrender of 
 the lease, the lessor would give to the lessees a certain 
 portion of the oil produced; and the lessee surrendered 
 the lease in consideration of receiving part of the oil 
 produced, as the lessor covenanted to give the lessee, 
 and the lessor then conveyed all his interest in the prem- 
 ises to persons who had notice of the agreement between 
 the lessor and lessee; and the grantees of the lessor 
 refused to deliver the part of the oil agreed to be deliv- 
 ered by the lessor, the grantees of the lessor were not 
 bound to deliver the part of the oil agreed to be deliv- 
 ered, since the covenant was but a personal agreement 
 on the part of the grantor and was not binding on the 
 grantees. 3 
 
 SEC. 16. No IMPLIED COVENANT THAT OIL OR GAS 
 EXIST ON THE LAND No IMPLIED COVENANTS BY THE 
 USE OF THE WORDS GRANT, BARGAIN AND SELL IN A 
 LEASE THERE is AN IMPLIED COVENANT IN A LEASE 
 TO SINK WELLS SUFFICIENT TO DEVELOP THE LAND, 
 BUT NOT IF EXPRESS COVENANTS ARE INSERTED IN THE 
 LEASE WHEN LESSOR MAY PROCEED TO DRILL. The 
 grant of a right to drill for oil and gas, on the prem- 
 ises of the grantor, does not have the effect of an agree- 
 ment or a covenant on the part of the grantor with the 
 grantee, that oil or gas exists on the premises, or that 
 
 1. Etowah Min. Co. vs. Welles Valley Min. & W. Co., 121 Ala., 
 
 672; 25 So., 720; Hansen vs. Meyer, 81 111., 325. 
 
 2. Norcross vs. James, 140 Mass., 188. 
 
 3. Newberry Petroleum Co. vs. Weare, 44 Ohio St., 604. 
 
170 Acceptance of Lease. 
 
 any oil or gas can be found on the premises in paying- 
 quantities. * So where a grant of land is only for a term 
 of years, with the privilege of taking oil and gas from 
 the premises during the existence of the term, the words 
 grant, bargain and sell will not create an implied cove- 
 nant of quiet enjoyment as such a covenant applies only 
 when the deed or other instrument of conveyance creates 
 an absolute estate in fee simple. 8 There is an implied 
 covenant on the part of the lessee in an oil and gas lease 
 that lessee will prosecute the work, in the development 
 of the land, for the production of oil or gas when the 
 lease reserves to the lessor a part of the oil and gas pro- 
 duced; and that such lessee will bore a sufficient number 
 of wells to develop the land, and to protect the lands 
 from being drained of the oil and gas through wells on 
 adjoining lands, and this implied condition or covenant 
 in the lease will be enforced in a court of equity so as to 
 compel a performance, or the lease will be canceled. 8 
 But where the lease provides other grounds of forfeiture 
 the lessor's only remedy is an action for damages; 4 or 
 the lessor may proceed to drill on his own account, if the 
 lessee does not prosecute the work with due diligence 
 and in good faith and a court of equity will not interfere 
 with the lessor. 8 
 
 SEC. 17. ACCEPTANCE OP A LEASE BINDS BOTH 
 PARTIES THOUGH SIGNED ONLY BY LESSOR BINDS AS- 
 SIGNEE. The execution of a lease by the lessor without 
 the lessee joining is binding on the lessee and is as 
 effective as if the lessee had signed it, when the lessee 
 accepts the lease. 6 The acceptance of the lease and the 
 
 1. Kokomo Nat. Gas. Co. vs. Albrect, 18 Ind. App., 157; 47 
 
 N. E., 682. 
 
 2. Chambers vs. Smith, 183 Pa., 122; 38 Atl., 522. 
 
 3. Kleppner vs. Lemon, 176 Pa., 502; 35 Atl., 109. 
 
 4. Harris vs. Ohio Oil Co., 57 Ohio St., 118; 48 N. E., 502; Mc- 
 
 Knight vs. Kreutz, 51 Pa. St., 232; Paschall vs. Passmore, 
 15 Pa., 295. 
 
 5. Ohio Oil Co. vs. Kelley, 9 Ohio C. C., 511. 
 
 6. Jennings vs. McComb, 112 P., 518; Hickey vs. Lake Shore & 
 
 S. M. Ry., 51 Ohio St., 40. 
 
Estoppel to Deny Execution. 171 
 
 enjoyment of the estate is with the express conditions 
 contained in the lease and has the same force and effect 
 as if duly signed by both parties; 1 and the acceptance 
 of the lease by the lessee and an assignment thereof will 
 bind the assignee to the performance of the covenants 
 and conditions, the same as they were binding on the 
 lessee, 2 and where the lease gives the lessee the exclusive" 
 right to operate for all the oil and gas in the land leased, 
 the lease is binding on the lessee when the same is 
 accepted and recorded, though not signed by the lessee. 8 
 
 SEC. 18. ESTOPPEL TO DENY EXECUTION STATE- 
 MENTS OF AN ALLEGED AGENT WILL NOT ESTABLISH 
 A LEASE, NOR THE PRINTED FORM IN THE RECORDER'S 
 OFFICE; A lease will be deemed to be properly exe- 
 cuted and accepted when the lessee enters into posses- 
 sion and bores for and produces gas, and settled with 
 the lessor for the gas thus obtained, and refers to the 
 leased premises as his, and the lessee will be estopped 
 after doing these acts from setting up that the lease was 
 not obtained under the authority of the lessee; 4 and a 
 lessee who is claimed to have an interest in a lease with 
 another, will be deemed to have ratified the acts of 
 another, in signing the lease for the benefit of both, 
 where the facts show that the lessee knew that his 
 co-lessee signed the lease at the time of its execution, 
 and that such lessee some time thereafter approved of 
 what was done by the lessee. 6 But a lease which will 
 bind another cannot be established by the statements of 
 an alleged agent of the lessee at the time the lease was 
 made, that the lease was made in behalf of such other 
 person, but the statements may be received in evidence 
 
 1. Georgia Railroad vs. Reeves, 64 Ga., 492; Burbank vs. Pills- 
 
 bury, 48 N. H., 475; Finley vs. Simpson, 22 N. J. L., 311; 
 Spaulding vs. Hallenbeck, 35 N. Y., 204. 
 
 2. Maynard vs. Moore, 76 N. C., 158. 
 
 3. Indianapolis Nat. Gas Co. vs. Kibbey, 135 Ind., 357; 35 N. E., 
 
 392. 
 
 4. Ahrns vs. Chartiers Valley Gas Co., 188 Pa., 249; 41 Atl., 739. 
 
 5. Rice vs. Ege (C. C. N. D. N. Y.), 42 Fed. R., 661. 
 
172 Description of Land. 
 
 to contradict the testimony of the alleged agent where 
 such agent denies that such statements were made; 1 nor 
 can a printed form of a lease which is generally used by 
 the lessee and which was printed in a book used in the 
 recorder's office, at the request of the lessee, be put in 
 evidence to prove the contents of the lease, where the 
 lessee denies the execution of the alleged lease. 8 
 
 SEC. 19. DESCRIPTION OF LAND TRACTS SPECIFIED 
 TO BE OPERATED UPON. Though a lease is not void 
 where a large tract of land is leased and only a particu- 
 lar tract is to be operated upon and such tracts are to 
 be designated by the lessor; 3 yet if the lease undertakes 
 to specify the tracts out of a larger tract to be operated 
 upon, and the description is void for uncertainty, the 
 lease will also be void and cannot be enforced by either 
 party. 4 So where a lease contains a definite description 
 of the land, parol evidence is not admissible to change 
 the description and that the lease was intended to cover 
 other lands. 5 
 
 SEC. 20. EVICTION OF LESSEE MEASURE OF DAM- 
 AGES INJUNCTION TO PREVENT OPERATION ON LAND 
 WHERE LESSEE HOLDS LEASE TO THE WHOLE LAND, BUT 
 OPERATIONS ARE CONFINED TO PARTICULAR TRACTS OR 
 CITES CONSTRUCTIVE EVICTION NOTICE OF LEASE BY 
 PURCHASER. Where the lease gives the lessor the right 
 to occupy the premises for the purpose the premises 
 were generally used, and the lessee acquires only such 
 rights in the premises as are necessary for the produc- 
 tion of oil and gas found on the premises, the erection 
 of a building on the premises by the lessor after the 
 lessee designated the place where the well would be put 
 down, will not amount to an eviction of the lessee, 
 
 1. Morris vs. Guffey, 188 Pa., 534; 41 Atl., 731. 
 
 2. Morris vs. Guffey, 188 Pa., 534; 41 Atl., 731. 
 
 3. Indianapolis Nat. Gas. Co. vs. Spaugh, 17 Ind. App., 683; 46 
 
 N. E.,691. 
 
 4. Diamond Plate Glass Co. vs. Tennell, 22 Ind. App., 132; 52 
 
 N. E., 168. 
 
 5. Duffield vs. Hue, 129 Pa., 94; 18 Atl., 566. 
 
Eviction of Lessee. 173 
 
 when the building 1 will not hinder the lessee in operating 
 for oil and gas; 1 but when the lessee has the exclusive 
 right to drill for oil and gas in certain lands, and the 
 lessee's rights are interfered with, the lessee has a right 
 to bring an action in tort for the interference with his 
 rights, though no possessory action could be maintained, 
 because the lease did not provide for the lessee to hold 
 possession of the land demised. 2 So where other wells are 
 sunk on premises on which the lessee had the exclusive 
 right to sink wells, the measure of damages is to be 
 ascertained by finding the value of the premises free 
 from the wells put down without right, and the value to 
 the lessee with these wells on the premises without 
 right, and the difference between the two is the measure 
 of damages. 3 When a lease is made of a large tract of 
 land, but the lessee's operations on the land are confined 
 to particular specified sites, the lessee cannot occupy 
 any other places than those specified in the lease and 
 cannot maintain ejectment to get possession of the land 
 not included in the places to be operated upon, though 
 covered by the lease; 4 yet the lessee may enjoin the 
 lessor from sinking wells on the lands covered by the 
 lease, as the lessee acquires title to all the oil and gas 
 in the whole tract leased, and only the lessee's right to 
 operate at particular places is restricted. 5 Where the 
 premises are leased for the production of oil and gas 
 and the lessor conveys the premises to a third person 
 and the deed of conveyance is not made subject to the 
 oil and gas lease, the lessee is constructively evicted 
 from the premises; 6 but where the purchaser had notice 
 of the sale of the mineral rights the lessee's rights are 
 not lost and it is not a breach of a covenant of warranty. 7 
 
 1. Matthews vs. Peoples Nat. Gas Co., 179 Pa., 165; 36 Atl., 216. 
 
 2. Duffield vs. Rosenzweig, 150 Pa., 543; 24 Atl., 705; 144 Pa., 
 
 520; 23 Atl., 4. 
 
 3. Duffield vs. Rosenzweig, 144 Pa., 520; 23 Atl., 4. 
 
 4. Duffield vs. Hue, 129 Pa., 94; 18 Atl., 566. 
 
 5. Duffield vs. Hue, 136 Pa., 602; 20 Atl., 526. 
 
 6. Matthews vs. Peoples Nat. Gas Co., 179 Pa., 165; 36 Atl., 216. 
 
 7. Sanders vs. Rowe, 20 Ky. L. R., 1082; 48 S. W., 1083. 
 
174 Merger. 
 
 SEC. 21. MERGER. Where there is a contract made 
 by the owner of gas lands to sell the same, and such an 
 owner afterwards sells the lands and conveys the same 
 by deed and makes no reservation of the rights provided 
 for in the contract, the rights agreed upon in the con- 
 tract are merged in the deed. 1 So where a number of 
 persons hold oil and gas lands as co-lessees, and one of 
 the co-lessees acquires the lands in fee, the lessee who 
 acquires the lands in fee becomes the absolute owner of 
 the royalty due from the other tenants in proportion of 
 the shares held by them bear to that of the lessee who 
 becomes owner, and the lessee's interest which merged 
 in the fee. 2 So where two persons make a joint lease of 
 two separate tracts of land and the rent was to be paid 
 to them jointly, and the lessee acquires the interest of 
 one of the lessors, the lessee is released from the pay- 
 ment of rent to the extent of the lessor's interest. 8 
 
 SEC. 22. AGREEMENTS FOR THE LOCATION AND 
 DEVELOPMENT OF MINES NOT CONTRARY TO THE STAT- 
 UTE OF FRAUD PAROL CONTRACT NOT TO SINK WELLS 
 NEAR BOUNDARIES NOT WITHIN THE STATUTE, OR TO PUT 
 IN A WELL AND SHARE IN THE PRODUCT, OR A RELEASE 
 FROM THE PAYMENT OF ROYALTIES. When a mine is 
 located by one person under a parol agreement with 
 another to share in the expenses in the location and 
 development of the mine, such an agreement is not con- 
 trary to the statute of frauds; 4 nor is an agreement 
 between adjoining leaseholders that each shall not drill 
 wells within two hundred feet of their respective line 
 within the statute of frauds, since no interest is con- 
 veyed, but simply a restriction is imposed in the opera- 
 tion for oil and gas under each other's lease. 5 Nor is an 
 
 1. Carroll vs. Providence Natural Gas and Fuel Co., 26 Canada 
 
 S. C., 181; Raymond vs. Johnson, 17 Wash., 232; 49 Pac., 
 492. 
 
 2. Northwestern Nat. Gas Co. vs. Davis; 9 Ohio C. C., 551. 
 
 3. Higgins vs. California Petroleum and Asphalt Co., 109 Cal., 
 
 304; 41 Pac., 1087. 
 
 4. Moritz vs. Lovelle, 77 Cal., 10; 18 Pa., 803, 9 Ohio, C.C., 551. 
 
 5. Ware vs. Longmade, 9 Ohio C. C., 85. 
 
Boundary Lines. 175 
 
 agreement between the lessee of lands for oil and a per- 
 son who agrees to put a well down on the premises and 
 to have an interest in the oil produced within the statute 
 of frauds. * So when the lessor reserves a royalty under 
 a gas lease, and the lease is to run as long as oil and gas 
 is produced, the lessee may be released from the pay- 
 ment of royalty by a parol agreement between the par- 
 ties. 2 
 
 SEC. 23. BOUNDARY LINES STATE MAY PROHIBIT 
 MINING UP TO THE BOUNDARY LINES AGREEMENT NOT 
 TO SINK WELLS UP TO THE BOUNDARY LINES VALID 
 PARTIES TO A SUIT TO ADJUST BOUNDARY LINES. A 
 law which prohibits the owners of adjoining lands from 
 taking the minerals therefrom within a certain distance 
 from the boundary lines is constitutional and imposes 
 only a restriction on the land owners for the common 
 benefit of all. 8 So also adjoining owners may agree that 
 neither will bore for oil or gas within a certain distance 
 from the lines bounding their lands, and the agree- 
 ment will be upheld without any consideration than that 
 which will accrue from the protection of the lands of 
 each from operations up to the boundary lines; 4 and an 
 injunction will lie to protect one from a violation of the 
 agreement by the other. 8 When the lessee of one tract 
 of land which seeks to enjoin the lessees of another tract 
 of land adjoining from drilling a well on the ground that 
 it is on the lands leased by the lessee who brings the 
 suit, the owner of the fee of both tracts as well as all 
 parties who have an interest in the oil or gas produced 
 from the wells being drilled are necessary parties to the 
 suit. 6 
 
 1. Haight vs. Conners, Pa., ; 24 Atl., 302. 
 
 2. Crawford vs. Bellvere & G. Natural Gas Co., 183 Pa., 227; 38 
 
 Atl., 595; Nilson vs. Goldstein, 152 Pa., 493; 25 Atl., 493. 
 
 3. Maple vs. John, 42 W. Va., 30; 24 S. E., 608; 32 L. R. A., 800. 
 
 4. Ware vs. Longmade, 9 Ohio C. C., 85. 
 
 5. Ware vs. Longmade, 9 Ohio C. C. f 85. 
 
 6. Steelsmith vs. Fisher Oil Co., W. Va., ; 35 S. E., 15 
 
 Moore vs. Jennings, W. Va., ; 34 S. E., 793. 
 
176 Oil and Gas Lease Chattels Real. 
 
 SEC. 24. LEASE OF LANDS FOR THE PRODUCTION 
 OF OIL OR GAS is A CHATTEL INTEREST, LESSEE is 
 BAILEE OF THE LAND FOR OWNER, THE LESSEE'S INTER- 
 EST MAY BE SOLD UNDER AN EXECUTION, SALE OF A 
 PRODUCTIVE WELL, TOOLS AND APPLIANCES, BY THE 
 OWNER OF THE LAND MAKES THEM PERSONAL PROP- 
 ERTY LESSEE'S INTEREST GOES TO PERSONAL REPRE- 
 SENTATIVE ON His DEATH. The acquisition by the 
 lessee of the exclusive right to prospect or produce oil 
 and gas, on the lands of another for a certain period, or 
 as long 1 as oil or gas may be found, is a chattel inter- 
 est; 1 and it is a rule very generally recognized that a 
 lease of land is not a conveyance of the land, but a right 
 to occupy the land as bailee of the owner; 2 but the 
 interest which a lessee acquires in an oil and gas land 
 under a lease for their production may be sold on execu- 
 tion. 3 The purchaser at a sale under execution is 
 regarded as an assignee of the chattel. 4 So, on the exe- 
 cution of a mortgage on property, the mortgage must 
 comply with the statute governing chattel mortgages. 5 
 And where the owners of the fee sold a productive well 
 on the premises, and all the machinery and tools and 
 appliances for the production of oil, and the payments 
 were to fall due in the future, and the agreement pro- 
 vided that if the payments were not made, when due, 
 the product of the well should be delivered to their 
 credit, in their names, the oil well and all the machinery, 
 tools and appliances for the production of oil will be 
 regarded as personal property. 6 As a general rule, 
 leases for a term of years passes to the administrator at 
 
 1. Brown vs. Beecher, 120 Pa., 590; 15 Atl., 608; McElwaines 
 
 App., Pa., ; 11 Atl., 453; Ohio Oil Co. vs. Kelley, 9 
 Ohio C. C., 511. 
 
 2. Perkins vs. Morse, 78 Me., 17. 
 
 3. Acklin vs. Waltermen, 19 Ohio C. C., 372. 
 
 4. Aderhold vs. Oil Supply Co., 158 Pa., 401; 28 Atl., 22. 
 
 5. Devine vs. Taylor, 1 Ohio Dec. (N. P.), 153. 
 
 6. Willets vs. Brown, 42 Hun., 140. 
 
Appurtenances. 177 
 
 the death of the lessee, 1 but there are some exceptions 
 to this general rule. 2 
 
 SEC. 25. WHAT WILL PASS AS APPURTENANCES. 
 Land will not pass as appurtenant to land. 8 "A convey- 
 ance 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." 4 Two parcels of land can- 
 not be appurtenant to each other and the conveyance of 
 one tract will not pass the other. 5 So where the deed 
 conveying land provides that all 'appurtenances" shall 
 pass, the deed will not pass any corporeal rights as 
 appurtenances, but only incorporeal rights and privileges 
 such as easements. 6 But whoever grants a thing is sup- 
 posed also to grant that without which the grant itself 
 would be of no effect; so when a person was engaged in 
 the production of oil, and the buildings, tanks, derricks, 
 pipes and all other things usually connected with the 
 production of oil, and other necessary appliances for the 
 transportation off the premises were conveyed by a deed 
 of grant, bargain and sale, all the ground which is neces- 
 sary for the location of buildings, and derricks, etc., and 
 ingress and egress will pass, as incident to the grant, 
 because the ground is necessary to the enjoyment of the 
 grant. 7 So in a lease or a reservation oil or gas or other 
 minerals, all ground necessary for their production and 
 storage and a way to remove them from the premises 
 pass, as appurtenant to the grant, without any specific 
 mention of these rights; 8 and also where a particular 
 stratum of minerals is conveyed and another stratum lies 
 
 1. Becker vs. Walworth, 45 Ohio St., 169; 12 N. E., 1; Campbell 
 
 vs. Hunt, 104 Ind., 210; Dean vs. Hutehinson, 42 N. J. 
 Eq.,372; Thornton vs. Mehring, 117 111., 55; 2B1.,143; 1 
 Williams on Ex., Page 425. 
 
 2. See Chapter XIV. 
 
 3. Trustees of Schools vs. Schroll, 120 111., 509; 12 N. E., 243. 
 
 4. Child vs. Starr, 4 Hill., 369. 
 
 5. Humphreys vs. McKissock, 140 U. S., 304. 
 
 6. Hofers Appeal, 116 Pa., 360; 9 Atl., 441. 
 
 7. Dietz vs. Mission Transfer Co., Cal., ; 30 P., 380. 
 
 8. See 7 supra. 
 
178 Conditional Titles. 
 
 beneath the one conveyed, the grantor or his assignees 
 has a way of necessity through the first stratum con- 
 veyed. * 
 
 SEC. 26. CONDITIONAL TITLES TO MINING PROP- 
 ERTY JUDICIAL NOTICE OF THE NATURE OF THE PROP- 
 ERTY TITLE FAILS IF CONDITIONS ARE NOT PERFORM- 
 ED GRANTOR OR HEIRS ONLY HAVE A RIGHT TO ENTER 
 WHEN THE WHOLE TERM HAS BEEN ASSIGNED WHEN 
 A RIGHT DECLARES A FORFEITURE EXISTS. When the 
 contract between the parties relates to oil and gas or 
 other minerals, the courts will take judicial notice of the 
 peculiarities of the property and the mode and manner 
 of their production and the unstability of the values of 
 the property. 8 So when the grantee's title depends 
 upon the condition that the grantee will prosecute the 
 work, on the lands acquired, and pay the grantor a cer- 
 tain sum for all the ores removed, and the grantee can 
 abandon the lands and remove all his property there- 
 from, the grantee's title is at an end when the mines are 
 no longer operated. 3 So when the deed provided that the 
 grantee would prosecute a search for the minerals under 
 a deed conveying the mineral rights, and that in case of 
 sale of the land, by the grantee, which the grantee had 
 a right to do, under the deed, the grantee would pay the 
 grantor a certain portion of the proceeds, the provisions 
 of the deed are condition subsequent attached to the 
 grant, and the failure of the grantee to perform these 
 conditions within a reasonable time will defeat the 
 grant. 4 So a forfeiture will take place for not perform- 
 ing the conditions implied by law. 5 But a right to declare 
 
 1. Charties Black Coal Co. vs. Mellon, 151 Pa., 286. 
 
 2. Ohio Oil Co. vs. Kelley, 9 Ohio C. C., 511; Twin Lick Oil Co. 
 
 vs. Marbury, 91 U. S., 593; Huggins vs. Daley, 99 Fed. 
 Rep., 606; 48 L. R. A., 320; Brown vs. Spillman, 155 U. S., 
 665; Indianapolis vs. Consumers Gas Trust Co., 140 Ind., 
 107; 39 N. E., 433; 27 L. R. A., 514. 
 
 3. Paine vs. Griffiths, 56 U. S. App., 38; 86 Fed. Rep., 452. 
 
 4. Hawkens vs. Pepper, 117 N. C., 407; 23 S. E., 434. 
 
 5. Conard vs. Maxwell, 89 N. C., 31; Maxwell vs. Todd, 112 N. C., 
 
 677; 16 S. E., 926. 
 
V 
 
 Who May Declare a Forfeiture. 179 
 
 a forfeiture does not abide in a lessee after assignment 
 of all his interest in a lease of the minerals, because he 
 has no right to declare a forfeiture for failure of the 
 assignee to perform the conditions in the lease, since, by 
 the assignment of his interest, all the estate title and 
 interest passes out of the lessee and the right of reentry 
 does not exist independent of the estate which it was~ 
 intended to benefit; 1 and where a conditional fee is con- 
 veyed, no person can take advantage of a breach of the 
 condition but the grantor and his heirs; and an assignee 
 or devisee cannot enter, or declare a forfeiture of a 
 breach of the condition. 2 Nor is a reservation of a right 
 by the lessee to purchase a gas well after the same is 
 drilled by the assignees an interest in the leasehold, so 
 that the person who performs the work can have a lien 
 on the property of the lessee on the premises for the 
 work done for the lessee. 3 So the grantor was held to 
 have no interest in the land and no right to declare a 
 forfeiture under a condition subsequent in a deed convey- 
 ing the land in fee, where part of the consideration to be 
 received for the deed was a certain part of the product 
 of oil wells to be put down on the premises by the 
 grantee and the grantee failed to put down the wells. 
 The title of the grantee remains unaffected by failure of 
 the grantee to pay the consideration as agreed and the 
 remedy of the grantor is an action to recover the roy- 
 alty; 4 and where the lessee fails to fully develop the 
 lands by a sufficient number of wells, so as to prevent 
 the land from being drained of the oil or gas by wells on 
 other lands, the lessor's remedy is an action of law for 
 damages, though if the lessee was insolvent the lessee 
 could resort to forfeiture. 6 
 
 1. Ohio Iron Co. vs. Auburn Iron Co., 64 Minn., 404; 67 N. W., 
 
 221. 
 
 2. Upington vs. Corrigan, 151 N. Y., 143; 45 N. E., 359; Fowler 
 
 vs. Forester, 8 East., 566. 
 
 3. Wiles vs. Peoples Gas Co., 7 Pa. Super. Ct., 562. 
 
 4. Ammons vs. South Penn. Oil Co., W. Va., ; 35 S. E. f 
 
 1004. 
 
 5. Harness vs. Eastern Oil Co., W. Va., ; 38 S. E., 662. 
 
180 Joint Lease of Separate Tracts. 
 
 SEC. 27. JOINT LEASES MADE OP SEPARATE TRACTS 
 OF LAND. Where two lessors owned two separate tracts 
 of land adjoining- each other made a joint lease of the 
 lands for the purpose of mining bituminous rock and 
 liquid asphaltum, and the lessee was to pay the lessors 
 fifty cents per ton for all the bituminous rock and liquid 
 asphaltum which may be mined, taken or removed at the 
 first of each month for the month previous, and some 
 time after the execution of the lease, and when opera- 
 tions on the premises had begun, the lessee acquired the 
 rights of one of the joint lessors and continued to ope- 
 rate and pay the other lessor one-half of the rent stipu- 
 lated to be paid for a few months, and then ceased the 
 payment of the stipulated one-half of the royalty be- 
 cause no operations had been commenced on the lands 
 of the lessor, and that the interest of the other lessor 
 had been acquired and no rent was consequently pay- 
 able, the lessee was held bound to pay one-half the rent 
 to the lessor. The court said that the joint execution of 
 a lease was peculiar, and no case of a like character was 
 called to the attention of the court, but that the rules 
 applicable to the execution of a lease of lands owned by 
 tenants in common applied, and that being true the lessor 
 was entitled to his portion of the royalty although the 
 lessee acquired the interest of the other lessor, and that 
 it made no difference that up to the time the action was 
 brought all the operations were confined to the land 
 which the lessee had acquired the absolute title. 1 
 
 The following lease, made by a husband and wife of 
 separate tracts of land owned by each, was construed to 
 be a joint lease, to- wit: 
 
 "In consideration of the sum of twelve hundred and 
 fifty dollars, the receipt of which is hereby acknowl- 
 edged, Thomas B. Harness and Anna K. Harness, his 
 wife, of Pleasants county, West Virginia, first parties, 
 hereby grant unto M. Pinnegan, of Pittsburg, second 
 party, his heirs and assigns, all the oil and gas in and 
 
 1. Higgins vs. California Petroleum & Asphalt Co., 109 Cal., 
 304; 41 P., 1087. 
 
Joint Lease of Separate Tracts. 181 
 
 under the following" described premises, together with 
 the right to enter thereon at all times for the purpose 
 of drilling 1 and operating for oil, gas and water, and to 
 erect and maintain all buildings and structures and to 
 lay all pipes necessary for the production and transpor- 
 tation of oil and gas and water taken from said premises, 
 excepting 1 and reserving to the first parties one-eighth 
 part of all the oil produced and saved off the said prem- 
 ises, to be delivered in the pipe lines with which the 
 second parties may connect their wells, namely, * * * 
 all that certain tract of land situated in the district of 
 Grant, county of Pleasants, state of West Virginia, the 
 Riner farm of 152 acres, belonging to T. B. Harness, and 
 the Block Lands of 35^ acres, belonging to Anna K. Har- 
 ness, containing 187i acres more or less, to have and to 
 hold the premises upon the following conditions: Term 
 of lease two years, and as much longer as oil and gas is 
 found in paying quantities. If gas only is found second 
 party agrees to pay $250 each year, quarterly in advance, 
 for the product of each well while the same is being used 
 off the premises. Gas free for dwelling purposes. No 
 well shall be drilled nearer than two rods to any build- 
 ing now on said premises without the consent of the first 
 party. In case no well is completed in sixty days from 
 date then the lease is to be null and void, unless the 
 second party pays the first party $100 per month for each 
 month thereafter such completion is delayed. The sec- 
 ond party shall have a right to use sufficient gas, oil or 
 water to run all necessary machinery for the operation 
 of said wells and also the right to remove all its prop- 
 erty at any time; and all the conditions between the par- 
 ties hereto shall extend to their heirs, executors, admin- 
 istrators and assigns forever. It is hereby agreed and 
 understood that if the well now being drilled on the A 
 farm should produce 25 barrels of oil per day for 30 days 
 after completion, then the second party shall pay the 
 first party $750 additional bonus; if the first well on the 
 premises shall produce 25 barrels of oil per day for 30 
 days after the completion the second party shall pay 
 
182 Indiana Oil and Gas Lease. 
 
 $750, making- the additional contingent bonus not to ex- 
 ceed fl,250. And it is further agreed that the second 
 party, his heirs and assigns shall have a right at any 
 time to surrender up this lease and be relieved from the 
 payment of all money due and conditions unfulfilled. 
 Then and from that time the lease shall be null and void 
 and no longer binding- on either party, and all payments 
 which shall have been made be held by the party of the 
 first part for the full stipulated damages for the non- 
 fulfillment of the foregoing- contract. 
 
 "In witness whereof the parties hereto have here- 
 unto set their hands and seals this 25th day of January, 
 A. D. 1896. THOMAS B. HARNESS, (Seal.) 
 
 ANNA K. HARNESS, (Seal.) 
 M. FINNEGAN. (Seal.)" 1 
 
 So where a father who was the owner of the land 
 was joined by his son in the execution of a lease for the 
 production of oil and gas with a reservation of one-eighth 
 of the royalty, the son will be considered as one of the 
 joint lessors of the land if such was the intention of the 
 parties. 2 
 
 SEC. 28. INDIANA LEASE FORFEITURE FOR FAIL- 
 URE TO OPERATE. "This agreement and indenture made 
 and entered into this 25th day of April, A. D. 1888, by 
 and between John M. Mitchell and Judy Mitchell, parties 
 of the first part and as lessors herein, and John B. Crof- 
 ton, Samuel M. Mathers and W. B. Woodward, parties of 
 the second part and lessees herein, witnesseth, that the 
 said parties of the first part for and in consideration of 
 $1.00 in hand paid, and the agreements, covenants, rents 
 and royalties hereinafter mentioned and provided for, 
 do by these presents hereby demise, lease and let unto 
 the said parties of the second part for the sole purpose 
 of mining- and removing coal, stone, g-as, water, oils, min- 
 erals and metals of every kind there under the following 
 described tract of land." * * "The term of the lease and the 
 
 1. Harness vs. Eastern Oil Co., W. Va., ; 38 S. E., 662. 
 
 2. Swinf vs. McCalmont Oil Co., 183 Pa., 366; 184 Pa., 16; 38 
 
 Atl.,21. 
 
Construction. 183 
 
 estate herein granted shall begin on the 25th day of April, 
 1888, and shall continue for twenty years; provided that 
 if said enterprise shall be abandoned twelve months this 
 lease shall become null and void. And the said lessees 
 further covenant and agree to pay to the said lessors one- 
 tenth part of the net profits arising" from such opera- 
 tions. It is further agreed by the parties hereto, that 
 the lessors aforesaid shall have the right to enter upon 
 said premises at any time for the purpose of prospecting- 
 and selecting a location for opening 1 mines or wells, and 
 for that purpose shall have a right to take therefrom 
 coal, stone, minerals, gas, water, oils or metals for the 
 purpose of testing- the same. It is further agreed, that 
 in case of the termination, either by expiration or for- 
 feiture, said lessees shall have a right to remove all 
 building's, machinery, tracks, fixtures which they may 
 have put upon said premises, provided that they shall 
 first pay the lessors the money they may owe to the said 
 lessors under this lease; and said lessees shall not be 
 liable for any damages for opening 1 of stone quarries, sink- 
 ing- wells, or other work done in pursuance of this lease; 
 and the payment of the lessors of the said one-tenth part 
 of the net profits arising- from the operation of quarries 
 and wells shall be in full of all demands under this 
 lease." The lease was properly signed, acknowledged 
 and recorded. Nothing had been done by the lessees to 
 carry into effect the provisions of the lease, and|at the 
 expiration of two years the lessors demanded a release 
 so that the apparent incumbrance may be removed, but 
 the lessees refused. The court held the lease to be null 
 and void at the expiration of twelve months and the les- 
 sees delay could not be excused because of the lack of 
 railroad facilities. 1 So where a lessor gave the lessee a 
 lease "for the purpose and with the exclusive^right of 
 drilling and operating for petroleum and gas," *J k and 
 the lessee was to have and to hold said premises for and 
 during the term of ninety days from the date hereof and 
 as much longer as oil and gas is produced or found Jn 
 
 1. Woodward vs. Mitchell, 140 Ind., 406; 39 N. E., 437. 
 
184 New York Oil and Gas Lease. 
 
 paying- quanties, " and the lessor was to receive one-eighth 
 of the oil and and a cash consideration for the gas pro- 
 duced and used, and the parties of the second part were 
 to complete a well in ninety days from the date thereof," 
 and "in case of failure to complete such well to pay the 
 first parties for such delay a yearly rental of $250 from 
 the time of completing such well," the court construed 
 the instrument to be a lease creating a tenancy from 
 year to year, and it was optional with the lessor to de- 
 clare a forfeiture or not where the lease provided that it 
 would become null and void for failure to drill or pay 
 the rental. 1 
 
 SEC. 29. NEW YORK LEASE FORFEITURES. The 
 leases which have come before the courts of New York 
 are about the same as the Indiana form, excepting 
 as to the mode of operations and the payment of rents. 
 A late case comes before the court on the question of 
 forfeiture. The lease was for twelve years and as long 
 "as oil is found in paying quantities," and further pro- 
 vided: "That operations should begin within six months, 
 and thereafter operations should be prosecuted with due 
 diligence, and, in case no such operations were begun, 
 the lease was to be null and void," and the lease gave 
 the lessees "the exclusive right to dig, bore and mine for 
 and gather all the oil and gases in and upon the afore- 
 said premises." The lease gave the lessors part of the 
 product as a royalty, and no provisions were made in 
 case of delay. The lessees put down a well in time, and 
 the well produced gas, but the lessees cased the well and 
 made no use of the gas and removed all their machinery 
 from the premises, and the lessors made a second lease 
 to other parties who went into immediate possession. 
 The second lease contained a provision: "Subject to a 
 lease on part of said lands in case the same is not now 
 or does not become forfeited or cancelled." The court 
 construed the words "as long as oil is found in paying 
 quantities," contained in the first lease, as words of lim- 
 
 1. Evans vs. Consumers Gas Trust Co., 31 L. R. A., 473. 
 
West Virginia Oil and Gas Lease. 185 
 
 itation, which fixed the duration of the lease, and, as the 
 lessees abandoned the land after testing 1 it, all rights 
 under the lease were at an end. The lease was con- 
 strued to give the lessees no other right or estate in the 
 land than to possess the land to prospect for oil and g^as 
 and a right to take the oil and g~as found. 1 A sole and 
 exclusive right to enter upon and take the minerals fronT 
 the land does not give the lessee an estate, but an incor- 
 poreal hereditament, 2 and this rig"ht is forfeited by the 
 execution of a new lease. 3 
 
 SEC. 30. WEST VIRGINIA OIL AND GAS LEASE 
 FORFEITURES. "Oil lease. This lease, made the llth day 
 of August, A. D. 1885, by and between William P. Core, 
 of Cass Township, of the County of Monongahela, and 
 the State of West Virginia, of the first part, and John 
 Kennedy and J. W. Long-, of Green County, State of 
 Pennsylvania, parties of the second part, witnesseth: 
 That the said party of the first part, in consideration of 
 the stipulation and rents and covenants hereinafter con- 
 tained on the part of the parties of the second part, their 
 executors, administrators and assigns, to be paid, kept 
 and performed, hath granted, demised and let unto the 
 said parties of the second part, their executors, admin- 
 istrators and assigns, for the sole and only purpose of 
 developing, drilling 1 for and producing" of petroleum or 
 carbon oil, and for laying of pipes, either under or on 
 top of the surface, for transportation of the products of 
 such development all that certain tract of land (descrip- 
 tion follows), to have and to hold said premises for the 
 said purpose only, unto the said parties of the second 
 part, their executors, administrators and assigns, for 
 during and for the full term, twenty years next ensuing, 
 
 1. Eaton vs. Allegheny Gas Co., 122 N. Y., 416; 25 N. E., 581; 
 
 Reversing, 42 Hun., 61. 
 
 2. Eaton vs. Allegheny Gas Co., 122 N. Y., 416; 25 N. E., 981; 
 
 Baker vs. Hart, 123 N. Y., 470; 25 N. E., 948; 12 L. R. A., 
 60; Shepherd vs. McCalmont Oil Co., 38 Hun., 37. 
 
 3. Allegheny Oil Co. vs. Bradford Oil Co., 21 Hun., 26; 86 N. Y., 
 
 638. 
 
186 Execution of Second Lease. 
 
 the day and year above written. Said parties of the 
 second part hereby covenant, in consideration of the said 
 grant, and demise to deliver to the said party of the first 
 part, his heirs and assigns, the full equal one-ninth (to 
 be paid in cash of all oil), part of petroleum or carbon 
 oil discovered or produced on the premises herein leased 
 as produced in the crude state, the first party to furnish 
 tankage for the same until a pipe line is provided. The 
 said party of the first part is to fully use and enjoy the 
 said premises for the purpose of tillage, except as such 
 part as shall be necessary for said development pur- 
 poses, and a right of way over and across said premises 
 to the place or places of operation. The said party of 
 the first part covenants to grant to the said parties of 
 the second part the right to remove any machinery or 
 fixtures placed on said premises by said parties of the 
 second part. The said parties of the second part cove- 
 nant to commence operations for said purposes within 
 one year from and after the execution of the lease or to 
 thereafter pay the party of the first part $5.50 per month 
 until the work is commenced. A deposit in the hands of 
 John Kennedy shall be good and sufficient for each and 
 every month till work is commenced, and a failure on the 
 part of the said second parties to comply with either one 
 or the other of the foregoing conditions shall work an 
 absolute forfeiture of the lease." No operations were 
 begun, nor was the rent paid as provided in the lease, so 
 the lessor executed a second lease to other parties. The 
 second lease was for both oil and gas, and was made 
 March 7, A. D. 1888, and was for a term of two years "or 
 as long as oil and gas is found in paying quantities," and 
 the lease covered the same land, excepting ten acres 
 around the dwelling house of the lessor, and the lessee 
 was to give the lessor one-eighth of all the oil produced 
 and $500 per annum for each gas well used off the prem- 
 ises, and the lease was made for the sole and only pur- 
 pose of producing oil and gas, and as to the production 
 of oil and gas the lease contained the following pro- 
 vision: "It is further agreed between the parties to this 
 
Entry by First Lessee. 187 
 
 agreement this lease will be extended by the first party 
 six months from the date of a completion of a well, as 
 recited below, by the second party paying- $40.00 in ad- 
 vance, and it is further agreed, at the end of one year 
 from the date of this lease, the said party can have the 
 lease extended one year longer by paying- $130.00 in 
 quarterly payments, and that the lease becomes null arixT 
 void unless a well is drilled in and about the premises 
 described. The party of the second part agrees to com- 
 plete one well within six months from the date hereof, 
 and, for failure to complete one well within such time, 
 the party of the second part hereby agrees to pay to the 
 first party for future delay, etc. And the party of the 
 first part hereby agrees to accept such sum as full con- 
 sideration and payment for delays while one well is com 
 pleted, and a failure to complete one well, or to make 
 any of such payments within such time and place as 
 above mentioned, renders this lease null and void, and to 
 remain without any force and effect between the two 
 parties." 
 
 Before the expiration of the term of two years in the 
 second lease an assignee of the first lease entered into 
 possession of the land with the consent of the owner, and 
 bored for oil and produced it in large quantities, and in 
 January, 1890, before the end of the term of two years, par- 
 ties who claimed under the second brought suit against 
 the assignee of the first lease to regain possession of the 
 premises, and the suit was decided in June, 1890, and up 
 to that time, or during the two years, no oil or gas was 
 produced under the second lease. The second lease was 
 held to have expired at the end of two years when no 
 oil or gas was produced within that time. The fact that 
 oil was produced by the first lessee's assignee did not 
 keep the lease in force, because the oil was not produced 
 by anyone acting under the second lease, nor was the 
 second lease kept in force because the lessee was kept 
 out of possession by the first lessee, and the only remedy 
 the second lessee had was an action for damages. 1 So 
 
 1. Thomas vs. Hukill, 34 W. Va., 385; 12 S. E., 522. 
 
188 Second Lease Subject to Former Lease. 
 
 where a second lease was given for the same premises 
 by the same lessor, but the second lease was made "sub- 
 ject to the E. M. Hukell lease," a former lease, the mak- 
 ing 1 of the second lease is not an equivocal declaration 
 of forfeiture, although grounds for a forfeiture exists and 
 the first lease is delivered up by the lessee by mistake to 
 be canceled. * The clause in a lease "to have and to hold 
 the said premises unto the said party of the second part 
 during and until the full term of two years, and as much 
 longer as oil or gas is found in paying quantities thereon 
 or the rental thereon paid, " means that the lease is at an 
 end at the expiration of two years, where no oil or gas is 
 found; and the words "or rental thereon paid" applies 
 to another part of the lease, which provided that opera- 
 tions must be commenced and one well bored in six months 
 and for a failure to do so to pay a certain rent men- 
 tioned. 2 So where a lease "granted, demised and let 
 unto the said lessee all the oil and gas in and under" the 
 land described, and the lessee was to have and to hold 
 the said premises for a term of five years and as much 
 longer as oil or gas was found in paying quantities, and 
 the lessor was to receive one-eighth the product as a 
 royalty, and the lease contained the following clause: 
 "Provided, however, that a well shall be commenced on 
 above described premises within thirty days and com- 
 pleted within ninety days from the date hereof, and in 
 case of failure to commence and complete said well as 
 aforesaid, the lessee shall pay to the lessor a forfeiture 
 of $50, " and the lease recited a consideration of $1.00 but 
 it was never paid. The consideration for such a lease 
 is the prospective royalties, and a failure to commence 
 operations and put down a well in ninety days will be a 
 ground of forfeiture to be exercised by the lessor within 
 the five years. 3 Another lease with provisions like the 
 ones given above, and for a consideration of $1.00 and 
 
 1. Schaup vs. Hukill, 34 W. Va., 375; 12 S. E., 501. 
 
 2. Bettman vs. Harness, 42 W. Va., 433; 26 S. E., 271; 36 L.R.A., 
 
 566. 
 
 3. Huggins vs. Daly, 99 Fed. R., 606; 48 L. R. A., 320. 
 
Optional Leases. 189 
 
 for a term of five years, with a reservation of one-eighth 
 of the oil to the lessor and cash payments for gas wells, 
 contained a provision as follows: "In case no well shall 
 be completed on the above described premises within one 
 month from the date hereof this lease shall become null 
 and void and without any futher effect whatever, unless 
 the lessee shall pay for further delay at the rate of $5(T 
 per month in advance thereafter until the well is com- 
 pleted." The completion of a non-productive well will 
 not save the lease from forfeiture where the lessee aban- 
 dons the premises. * 
 
 The following clause in a lease was construed to be 
 a mere option until the lessee proceeded to carry the 
 lease into execution, to- wit: "The parties of the second 
 part agree to drill one test well on the above described 
 premises within six months from the execution of the 
 lease, or in lieu thereof to pay the said party of the first 
 part one dollar per acre per annum until such well is 
 completed, and if one of the said test wells is not com- 
 pleted within six months from the date or rentals paid 
 thereon this lease is null and void and not further bind- 
 ing on either party. And it is further agreed that the 
 said second parties, their heirs and assigns shall have 
 a right at any time to surrender up this lease and be re- 
 leased 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 as shall have been made held by the 
 said first party as full specified damages for the non- 
 fulfillment of the foregoing contract." The lessor had 
 a right to terminate the lease before the lessee did any- 
 thing to carry it into execution, and the execution of a 
 new lease to another terminates the lease, 2 or the death 
 of the lessor would also end the lease. 3 
 
 1. Steelsmith vs. Gartlan, 45 W. Va., 27; 29 S. E., 978; 44 
 
 L. R. A., 107. 
 
 2. Eclipse Oil Co. vs. South Penn. Oil Co., 47 W. Va., 84; 34 
 
 S. E., 923. 
 
 3. Trus. vs. Eclipse Oil Co., 47 W. Va., 107; 34 S. E., 933. 
 
190 Ohio Oil and Gas Lease. 
 
 A lease was held not to be forfeited under the follow- 
 ing provisions: "The party of the second part covenants 
 to commence operations for a test well within one year 
 from the date hereof at some point in the district of 
 Pawpaw, etc., and complete the same in eighteen months 
 from said commencement, provided that unavoidable de- 
 lays on account of mishaps in drilling shall cause a for- 
 feiture of the lease, and if for any cause the said second 
 party fails to commence and complete said well this lease 
 shall be forfeited and void;" where a test well is located 
 by surveying and leveling, and the timbers, which are 
 afterwards used in the construction of the derrick at the 
 location selected, are cut down and hewed and a contract 
 is made with a party to drill a well and the machinery 
 is ordered to be hauled to the location, but neither the 
 timber or machinery is hauled to the location within the 
 the year because of the impassable condition of the road. 1 
 
 SEC. 31. OHIO OIL AND GAS LEASES FORFEIT- 
 URES. "This agreement made and entered into by and 
 between John A. Taylor, of Cass township, of the county 
 of Hancock and state of Ohio, of the first part, and William 
 Duke, Jr., of Wells ville, New York, of the second part; 
 that the said party of the first part for the consideration 
 of the covenants and agreements hereinafter inserted, 
 has granted, demised and let unto the party of the sec- 
 ond part, his heirs and assigns, for the purpose and ex- 
 clusive right of drilling and operating for petroleum and 
 gas, all that certain tract, etc., * * * together with the 
 right of using sufficient water, excepting from the wells 
 now located except by consent of the first party, the 
 right of way over the said premises, the right to lay 
 pipes to convey oil and gas and the right to remove any 
 machinery and fixtures placed on said premises by the 
 second party. The party of the second part, his heirs 
 and assigns to have and to hold the said premises for 
 and during a term of five years from the date hereof and 
 as much longer as oil or gas is found or produced in pay- 
 
 1. Fleming Oil & Gas Co. vs. South Penn. Oil Co., 37 W. Va., 
 645; 17 S. E.,203. 
 
Implied Covenants. 191 
 
 ing- quantities thereon. Consideration of the said grant 
 and demise the party of the second part agrees to give 
 or pay the said party of the first part the full equal of 
 one-eighth of all the oil produced or found on said prem- 
 ises and to deliver the same free of expense into tanks 
 or pipe lines to the credit of the first party; and should 
 g-as be found in sufficient quantities to justify the party" 
 of the second part in marketing 1 the same, the considera- 
 tion in full to the party mentioned of the petroleum roy- 
 alty shall be $100 per annum for each well so long as it 
 shall be used therefrom. It is further agreed that the 
 party of the first part shall complete a well on the above 
 described premises within nine months from the date 
 hereof, and in case of failure to complete such well within 
 such time, the said party of the second part agrees to 
 pay to the said party of the first part a yearly rental of 
 fifty cents per acre on the premises herein leased from 
 the time of completing the well as above specified until 
 such well is completed. The said yearly rental * * * 
 shall be deposited to the credit in the First National 
 Bank of Findley, Ohio, or paid direct to the first party. 
 A failure to complete such well or make said deposits 
 or payments as above specified shall render this lease 
 null and void, and to remain without any effect between 
 the parties." 
 
 No possession of the premises was taken by the les- 
 see and no work was done to carry into effect the lease 
 during the term of five years. The lease was held to be 
 terminated after the expiration of five years as long as 
 no oil or g^as was produced within that time, and any ex- 
 tension of time after the expiration of the five years was 
 in legal effect the execution of a new lease. 1 
 
 A lease in the above terms provided: "The second 
 party agrees to commence and complete one well in six 
 months," and the lease made no provisions as to the de- 
 velopment of the lands other than the provision above 
 quoted, but the court held that there was an implied 
 
 1. Northwestern Ohio Nat. Gas Co. vs. City of Tiffin, 59 Ohio, 
 420; 54 N. E., 77. 
 
192 Forfeiture. 
 
 covenant in the lease that sufficient wells would be put 
 down to develop the lands. The implied covenant was 
 held to be no ground for a forfeiture of the lease where 
 the lessee failed to develop the land with a sufficient 
 number of wells, and the only remedy of the lessor was 
 an action for damages against the lessee. 1 
 
 So where a lease was made which recited a consid- 
 eration of one dollar and the operative part was as fol- 
 lows: "Does hereby grant, demise and let unto the lessee, 
 his heirs and assigns, all the oil and gas in and under 
 the following described real estate, etc." * * * "To 
 have and to hold the same unto the lessee, his heirs and 
 assigns, for the term of two years from the date hereof, 
 and as long as oil or gas is found in paying quantities, 
 not exceeding in the whole term of twenty-five years 
 from the date hereof, rendering and paying unto the 
 lessor one-eighth of the oil produced and saved from the 
 premises," and $150 per annum for each gas well. "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." 
 
 "It is agreed that the lessee shall have the right, at 
 any time, to surrender the lease to the lessor for cancel- 
 lation, after which all payments or liabilities to accrue 
 under and by virtue of this lease shall cease and deter- 
 mine, and the lease to become absolutely null and void." 
 The lessee did nothing toward the development of the 
 land during the term of two years, but the rent was 
 paid; nor was there any clause of forfeiture in the lease. 
 The lease was held not to be void for the want of mutu- 
 ality, but that the one dollar consideration not only sup- 
 ported the term of two years, but also the remainder of 
 the term, and the lessee was entitled to hold the land 
 after the expiration of the two years upon the payment 
 of the rent stipulated. 2 
 
 1. Harris vs. Ohio Oil Co., 57 Ohio St., 118; 48 N. E., 502. 
 
 2. Allegheny Oil Co. vs. Snyder, 106 Fed. R., 764. 
 
Pennsylvania Oil Lease. 193 
 
 So where a lease provided: "A failure on the part 
 of the second party to complete such well or wells, as 
 above specified, or instead thereof to pay the rental, as 
 above provided, shall render this lease and agreement 
 null and void, together with all rights and claims, and 
 not binding on either party, and not to be revived with-_ 
 out the consent of both parties hereto in writing. The 
 lease was held to be void only at the option of the lessor 
 for failure to put down wells or pay the rental. ' 
 
 SEC. 32. FORM OP LEASE AS USED IN PENNSYL- 
 VANIA FORFEITURES. "Articles of agreement between 
 John Rynd, etc., party of the first part, and Jonathan 
 Watson and Jacob D. Angier, parties ot the second 
 part, Witnesseth: That the said parties of the first part, 
 for and account of the covenants and agreements herein- 
 after mentioned, doth covenant and agree that the said 
 parties of the second part, their heirs and assigns, shall 
 have the exclusive right and privilege of digging, boring 
 and otherwise operating for salt and oil on the farm and 
 land owned and occupied by the party of the first part 
 situated," etc., "together with the right of flowing by 
 pumping or any other manner collecting salt water and 
 oil and manufacturing salt, refining or otherwise prepar- 
 ing the oil for use and the market, with the full and 
 unobstructed right of way to and from the springs, wells 
 and other works, they may dig, bore or construct or 
 cause to be dug, bored or constructed, builded or erected 
 on said premises, with the privilege of erecting such 
 buildings and apparatus as may be necessary and con- 
 venient for the purpose aforesaid; and the said parties 
 of the second part, for themselves, covenant and agree, 
 with the parties of the first part, that they, the said par- 
 ties of the second part, shall bore or dig one or more 
 wells, not less than 200 feet deep if necessary, to obtain 
 salt or oil from the same to the best advantage, working 
 with proper skill and energy for the interest of both par- 
 ties; and to give to the party of the first part one-fourth 
 
 1. Woodland Oil Co. vs. Crawford, 55 Ohio St., 161; 34 L. E. 
 A., 62; 44 N. E., 1093. 
 
194 Pennsylvania Oil Lease. 
 
 part of all the oil obtained on or out of said premises, 
 and, should the said second party think proper to engage 
 in the manufacture of salt from any salt water they may 
 find on the said land, then they are to give the said party 
 of the first part one-twelfth of the salt manufactured, 
 the said party to be at no expense whatever, and to 
 receive his share of the oil and salt at the mouth of the 
 wells and salt works, on the first secular day of each 
 month, after oil in profitable quantities is found and salt 
 manufactured. The said work of boring shall be com- 
 menced by the party of the second part within one year 
 after the first day of September, 1859, and to be prose- 
 cuted with reasonable diligence and energy until oil or 
 salt be found or further search be deemed unprofitable or 
 unnecessary. And in case the said party of the second 
 part, after fair and reasonable experiment and search, be 
 satisfied that no salt or oil or either can be found in suf- 
 ficient quantities to be profitable to both parties, the 
 lease should be determined and ended with the entire 
 possession and improvements thereon by the said second 
 party and they shall revert to the first party; and should 
 the second party occupy any considerable portion of the 
 improved land of the first party with works or buildings 
 or appliances which they may dig, bore, build, erect or 
 construct, to the damage of the said first party, shall 
 pay to the first party a reasonable rent and compensa- 
 tion therefor. The said first party expressly reserves so 
 much of the said land, * * * and should the lease be 
 determined as heretofore mentioned, and the possession 
 and improvements, it is understood that the said second 
 parties may remove their machinery, engines, etc., and, 
 should oil or salt or either be found in profitable quanti- 
 ties, this is a perpetual lease for all purposes therein 
 mentioned; and, further, the said first party expressly 
 covenants and agrees that he has not sold or leased any 
 part of the premises herein mentioned since September 
 the 1st, 1859, and it further agreed that the second party 
 shall not interfere with the farming portion of the first 
 party more than may be necessary and proper." 
 
Forfeiture. 195 
 
 The court considered the foregoing instrument as a 
 license and was made effective by the lessee and his 
 assignee entering upon the premises and producing oil, 
 and denied the lessor the right to maintain an action of 
 ejectment against the parties so as to prevent them from 
 boring for oil, but the lessor could maintain ejectmentji 
 the premises were occupied for other purposes than those 
 specified in the lease. 1 
 
 In a lease which provided: "The free and uninter- 
 rupted use, privilege, and liberty unto any part of the 
 200 acres now owned and occupied and in possession of 
 the party of the first part for the purpose of prospecting, 
 digging and boring for oil and erecting thereon furnaces, 
 vats and anything necessary for prospecting," etc., the 
 lessee acquired but an incorporeal right under the lease. 8 
 So a lease which gives the lessee a right to go upon the 
 demised premises and operate the same for "oil and 
 deliver to the lessor one-eighth of the oil obtained and 
 to drill a test well" near a certain place, no title vests in 
 the lessee where no oil is found after testing the prem- 
 ises, and the lessee then abandons the premises. 3 
 
 A lease is not forfeited as to the lessor under a con- 
 dition: "In case of failure to complete such well within 
 such time, the said parties of the second part agree to 
 pay the parties of the first part for such delay the sum 
 of $1,000 per annum within three months after the time 
 of completing the well has expired, and the party of the 
 second part hereby agrees to accept such sum as full con- 
 sideration and payment for such yearly delay until one 
 well shall be completed, and a failure to complete one 
 well or make such payments within such time and place 
 above mentioned shall render this lease null and void 
 and to remain without any effect between the parties 
 hereto" where the lessee fails to put down a well or make 
 the payments in the time and manner provided in the 
 
 1. Rynd vs. Rynd Farm Oil Co., 63 Pa. St., 397. 
 
 2. Funk vs. Haldeman, 53 Pa. St., 229. 
 
 3. Barnhart vs. Lockwood, 152 Pa., 82; 25 Atl., 237; Ventine Oil 
 
 Co. vs. Fretts, 152 Pa., 457; 25 Atl., 732. 
 
196 Forfeiture Clause for Benefit of Lessor. 
 
 lease. Nor is the lease void ab initio, but such pro- 
 visions are for the benefit of the lessor, and the lessee is 
 liable for rent as specified to be paid for not completing 
 the well. 1 
 
 An oil and gas lease which was made in considera- 
 tion of the rents and royalties, granted, demised and let 
 unto the party of the second part "for the sole and only 
 purpose of drilling and operating for petroleum, oil and 
 gas, for a term of two years, or so long thereafter as oil 
 or gas is found in paying quantities, a certain tract of 
 land," etc. "To give to the first party one-eighth of all 
 the oil from wells producing less than fifty barrels per day 
 and one-fourth from wells producing more than fifty bar- 
 rels per day," etc., and "to give $500 per annum for gas 
 for each and every well drilled," in case the gas is used 
 off the premises. "The party of the second part agrees 
 to pay, within ten days after the execution of this lease, 
 the sum of fifty-three dollars, and if a well is not com- 
 pleted within six months from the execution of the lease, 
 the said party agrees to pay the further sum of fifty-three 
 dollars, and so on continuously every six months during 
 the continuance of the time herein specified. * * * And 
 a failure to complete one well or to make any such pay- 
 ments within such time and such place, as above men- 
 tioned, shall render this lease null and void, and to re- 
 main without any effect between the parties." The lease 
 was held to be binding on the lessee until the lessor de- 
 clared the lease forfeited, and the lessee was bound to 
 pay rent although no well was sunk or rent paid, as was 
 provided in the lease. The court said: "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 pre- 
 tensions and seek other means of development. This 
 clause having been inserted as a protection of the lessor 
 he had a right either t6 declare a forfeiture or to affirm 
 the continuance of the contract, and if the lessor did not 
 choose to avail himself of the forfeiture the lessee can 
 
 1. Galey vs. Kellerman, 123 Pa., 491; 16 Atl., 474. 
 
Tennessee Oil and Gas Lease. 197 
 
 not set up as a defense to an action in affirmance of the 
 contract." 1 
 
 A lease with the usual provisions as to the sinking- 
 of wells as a test but with no provision as to the number 
 of wells, may be declared forfeited where the lessee ac- 
 quires a lease on lands adjoining' and drains the lands 
 through the wells on the adjoining 1 lands and the acts of 
 the lessee are fraudulent; 2 but no forfeiture can be de- 
 clared where the lease provides that a certain well shall 
 be put down and the well is put down and the acts of the 
 lessee are not done to defraud the lessor. 3 Nor can a 
 lease be declared forfeited where no wells are put down, 
 nor the rent paid for failure to put down the wells 
 where the lease contains no clause of forfeiture, but where 
 the lessee fails to drill or pay rent these circumstances 
 may be submitted to a jury so as to show abandonment 
 of the lease in an action by the lessor to g^ain possession 
 of the land. 4 
 
 SEC. 33. TENNESSEE OIL AND GAS LEASE FOR- 
 FEITURE. "This lease made and entered into this 13th 
 day of May, A. D. 1889, by and between John Gunlee and 
 his wife, of the county of Pickett and state of Tennessee, 
 of the first part, and A. J. Fry, of Fentress county, Ten- 
 nessee, of the second part. Witnesseth, that the party of 
 the first part, in consideration of the stipulations and 
 rents and covenants hereinafter contained, on the part 
 of the said party of the second part, or his assigns, to 
 be paid, kept and performed, have granted, demised and 
 let unto the said party of the second part or his assigns, 
 for the sole and only purpose of mining' and excavating 1 
 for petroleum, oil, g-as or other valuable mineral, and for 
 the laying- of pipes or constructing of roads for the trans- 
 portation of oil or mineral or g-as, all of that certain tract 
 of land situated," etc. 
 
 1. Ray vs. Western Pa. Nat. Gas Co., 138 Pa., 576; 12 L. R. A., 
 
 290. 
 
 2. Kleppner vs. Lemon, 176 Pa., 525; 35 Atl., 109. 
 
 3. Young vs. Forest Oil Co., 194 Pa., 243; 45 Atl., 121. 
 
 4. Marshall vs. Forest Oil Co., 198 Pa., 83; 47 Atl., 927. 
 
198 Grounds of Forfeiture. 
 
 "To have and to hold the said premises for the said 
 purposes only, unto the said party of the second part, or 
 his assigns, for, during", and for the full term, of thirty 
 years next ensuing the day and year above written. The 
 said party of the second part hereby covenants in consid- 
 eration of the said grant and demise to deliver unto the 
 said party of the first part, their heirs and assigns, the full 
 equal one-eighth part of all the petroleum, oil. gas, or val- 
 uable minerals discovered, excavated, pumped and raised 
 on the premises herein leased, as produced, pumped, exca- 
 vated in the crude state. The said parties of the first 
 part are to freely use and enjoy the said premises for the 
 purpose of tillage, except such parts as shall be neces- 
 sary for said mining purposes, and a right of way over 
 and across the said premises to the place or places of 
 mining and excavating. It is therefore agreed that the 
 second party shall not enter upon any lands in actual 
 cultivation, or use or cut any timber on said premises 
 without the consent of the first parties. The said parties 
 of the first part covenant to grant to the said party of 
 the second part the right to remove any machinery or 
 fixtures placed on said premises by said party of the 
 second part. The said party of the second part covenant 
 to commence operations for said mining purposes within 
 two years from the execution of this lease or to there- 
 after pay the parties of the first part on demand thirty 
 dollars per annum until work is commenced. It is fur- 
 ther agreed that the second party shall commence opera- 
 tions to drill one well in Pickett, Pentress or Overton 
 county on or before the first day of September next. In 
 failure whereof this lease is to be null and void and of 
 no more effect," etc. 
 
 The renewal was as follows: "Received of A. J. Fry 
 fifteen dollars In full of all sums due upon the oil and 
 mineral lease upon land belonging to us, executed to A. J. 
 Fry on May 13, A. D. 1889, and in consideration thereof 
 it is agreed that the provisions of said lease relating to 
 mining operations and rental are hereby modified, so that 
 the time to commence operations is extended to twelve 
 
Failure to Make Test. 199 
 
 months from this date, and in case said operations are 
 not begun the lessors shall have a right to forfeit said 
 lease, unless the lessee upon written notice of the inten- 
 tion of forfeiture, pay the annual sum mentioned in said 
 lease for further delay at the end of each year thereafter. 
 Dated this 4th day of September, 1894." 
 
 The above lease was held not forfeited where work 
 was not begun as provided in the lease. To work a 
 forfeiture of the lease the lessor was required to give 
 a written notice to the lessee so that the lessee may have 
 an opportunity to pay the rent for delay as was provided 
 in the lease. The execution of a second lease for the 
 same premises to another person is not a sufficient notice 
 where the second lease was made upon the condition 
 that the first was forfeited. 1 But a lease for ninety-nine 
 years to the lessees "of all his mineral and petroleum in- 
 terests for the purpose of exploring for coal, petroleum, 
 * * * for mining and working, * * * and for such 
 purpose erect all necessary buildings." * * * And the 
 lessees "obligate and bind themselves to pay the said 
 first parties one-eighth part of the net profits of what- 
 ever may be discovered and worked in and upon said 
 lands deemed advisable to be tested and worked" by the 
 lessees, and the lessees, "further agree to commence test- 
 ing said property within three years time." The lease 
 was held to be executory, and only perfected by taking 
 possession, and the testing was a condition upon which 
 the lease depended. If the test should show no minerals 
 the lease was at an end, and if upon making a test the 
 land showed the presence of valuable minerals the les- 
 see was bound to operate the land in good faith for the 
 profit of the lessees and the owner of the fee. The con- 
 tinued validity of the lease depended upon the conditions 
 of making the tests and the working of the land there- 
 after, and for a failure to do either, the lease was upon 
 these conditions and was terminated at the end of three 
 years by its own terms. * 
 
 1. South Penn. Oil Co. vs. Stone (Tenn. Ch. App.), 57 S.W., 374. 
 
 2. Petroleum Oil Co. vs. Coal, Coke & Mfg. Co., 89 Tenn., 381; 
 
 18 S. W., 65. 
 
200 Texas Oil Lease. 
 
 SEC. 34. TEXAS OIL LEASE FORFEITURE. A lease 
 in the usual form made by a husband and wife, whereby 
 the lessors, for a recited consideration of $1.00, granted 
 and conveyed to the lessee seven-eighths of all the oil 
 and gas in and under a certain tract of land and reserved 
 to themselves one-eighth of all the oil and gas as a roy- 
 alty, and the lease contained a provision. "In case no 
 well is begun or prosecuted, with due diligence, within 
 four months after this date, then this grant shall become 
 immediately null and void." The lessee did nothing 
 within the time specified for the commencement of ope- 
 rations other than placing a load of lumber on the ground 
 the last day before the time expired, and the lumber 
 was to be used in connection with the drilling of the well, 
 the question as to whether the hauling of the lumber was 
 the commencement of a well was a question of fact to be 
 determined by the jury, where there is evidence by per- 
 sons who bore oil wells as to what is the commencement 
 of a well. * 
 
 1. Forney vs. Ward, Tex. Civ. App.; 62 S. W,, 168. 
 
RENTS AND ROYALTIES. 
 
 CHAPTER XIV. 
 
 SECTION 1. CONSTRUCTION OF OIL AND GAS 
 LEASES. This chapter will treat of the liability of the 
 lessee for rent and royalties which are to be paid the 
 lessor as a consideration for the lease. It must be borne 
 in mind that the courts usually favor the lessor in the 
 construction of oil and gas leases, so the lessee or his as- 
 signees may be held liable for rent or other covenants in 
 an oil or gas lease where there would be no liability 
 under ordinary leasing. The reasons why a lease is con- 
 strued more strictly against a lessee are, that the lessee 
 is usually a man experienced in the business and knows 
 the value of the land for the purposes for which it is 
 leased, and that the leases are prepared by the lessee, 
 who is well aware of the meaning of all its terms, and the 
 lessor is usually a person who has no experience in such 
 affairs and does not know the value of the lands. It is 
 also the policy of the law that lands should be developed 
 and made productive, so a lease will not be upheld which 
 tends to tie up the lands for an indefinite period. l So 
 the lessee is held bound not only to perform all the ex- 
 press covenants but also covenants which are implied. 1 
 
 SEC. 2. GROUNDS OF LIABILITY FOR RENT, LEASE 
 SIGNED ONLY BY HUSBAND WHERE WILL HAD AN IN- 
 TEREST CONSTRUCTION OF PARTICULAR PROVISIONS. 
 The lessee is liable for rent to the lessor on the ground 
 not only of privity of estate, but also privity of contract 
 
 1. Huggins vs. Daley, 99 Fed. Rep., 606; Steelsmith vs. Gartlan, 
 
 45 W. Va.,107. 
 
 2. Cases supra 1; Funk vs. Haldeman, 53 Pa., 229; Hall vs. 
 
 Vernon, 47 W. Va., 295; 34 S. E., 764; 49 L. R. A., 464. 
 
202 Liability, Rent and Royalty. 
 
 between the lessor and lessee. 1 Oil and gas leases are 
 intricate and complicated and contain, as a general rule, 
 many covenants and conditions apparently conflicting, 
 so the rules and principles laid down by the courts in 
 construing oil and gas leases will assist in determining 
 the liability of the lessee or his assignee. 
 
 It has been heretofore shown that a lease of land for 
 the production of oil or gas was a disposition of the land 
 itself, but a lessee was held bound to pay rent under a 
 lease for the production of oil, although the lease was 
 signed by the husband alone and the wife had an interest 
 in the land, when the lessee was undisturbed in the pos- 
 session of the land by the wife and the lease provided 
 for a certain rental and for operations on the land by a 
 certain time, or rent where no operations were begun, 
 and no operations were begun, and the exclusive priv- 
 ilege of drilling was given to the lessee and the discovery 
 of the wife's interest was made after the lease was exe- 
 cuted and the signature of the wife to the lease thereafter 
 could be secured if the lessee so desired. 2 So where 
 operations were to begin by a certain time, and to be 
 completed by a certain time, and, for failure to do so, to 
 pay a certain rental per annum, per acre, if no opera- 
 tions were begun, and there was a clause in the lease 
 that the lessor leases one acre anywhere out of the above 
 described land for a test well, and if oil or gas is found 
 then the party of the second part has the balance of the 
 above described lands to drill, at the same royalty as 
 the within lease; and the whole land was described in 
 the lease, the lease covered the whole tract and the 
 lessee was required to pay rent for the whole for failure 
 to operate and was not limited to the acre on which the 
 test well was to be put down. 8 So where the lessee was 
 to pay so much for the first well, if it produced a certain 
 
 1. Edmonds vs. Mounsey, 14 and App. 599; 44 N. E., 196. 
 
 2. Kunkle vs. Peoples Nat. Gas Co., 165 Pa., 133; 33 L. R. A., 
 
 847; 30 Atl., 719; Matthews vs. Peoples Nat. Gas Co., 179 
 Pa., 165; 36 Atl., 216. 
 
 3. Columbia Oil Co. vs. Blake, 12 Ind. App., 680; 42 N.E., 234. 
 
Clause of Forfeiture. 203 
 
 amount of oil, and so much more if the production should 
 be greater, and in case a second well was put down a 
 certain additional sum, but the first well failed and the 
 second well was productive, the lessee was not relieved 
 from paying the additional sum provided in the lease for 
 the second well, because the first well failed. 1 
 
 SEC. 3. CLAUSE OF FORFEITURE is FOR THE BEN- 
 EFIT OF THE LESSEE AND WILL NOT RELIEVE THE 
 LESSEE FROM THE PAYMENT OF RENT WHEN COV- 
 ENANTS IN THE LEASE ARE NOT PERFORMED. 
 When a lease contains a stipulation that the lease shall 
 be void, if the lessee does not perform the covenants con- 
 tained in the lease^ the lease is only void at the option 
 of the lessor; 2 and the lessee cannot set up a default on 
 his part as a defense to an action for rent due the lessor. 3 
 And where there is another provision in the lease that 
 the lease shall not be renewed only by the mutual con- 
 sent of both parties, and no action shall accrue to either 
 on account of a breach of the covenants, the lessee is not 
 relieved from the payment of rent and such covenants 
 are void only if the lessor choose to declare them to be 
 void. 4 
 
 SEC. 4. LIABILITY FOR RENT IN CONNECTION WITH 
 CLAUSE OF FORFEITURE IN DETAIL. Where an oil and 
 gas lease for a term of twenty years provided that work 
 
 1. Brushwood Div. Co. vs. Hickey, 16 Atl., 70. 
 
 2. Ray vs. Western Pa. Nat. Gas Co., 138 Pa., 576; 20 Atl., 
 
 1065; Smiley vs. Western Pa. Nat. Gas Co., 138 Pa., 576; 
 21 Atl., 1; Agerter vs. Vandergfift, 138 Pa., 593; 21 Atl., 
 202. 
 
 3. West Moreland Nat. Gas Co. vs. DeWitt, 130 Pa., 235; 18 
 
 Atl., 724; Guffy vs. Killerman, 123 Pa., 491; 16 Atl., 474; 
 Randal vs. Tantum, 98 Cal., 390; 33 Pac., 433. 
 
 4. Leatherman vs. Oliver, 151 Pa., 646; 25 Atl., 309; Ogden vs. 
 
 Hatry, 145 Pa., 640; 23 Atl., 334; Phillips vs. Vander- 
 grift, 146 Pa., 357; 30 Atl., 1638: Matthews vs. Peoples 
 Nat. Gas Co., 179 Pa., 165; 36 Atl., 216; Jackson vs. 
 O'Hare, 183 Pa., 233; 38 Atl., 624; Roberts vs. Bett- 
 man, 45 W. Va., 143; 30 S. E., 95; Miller vs. Logan, 31 
 Pittsb., L. J. U. S., 217. 
 
204 Liability for Rent in Detail. 
 
 was to be commenced in ninety days, and that the work 
 was to be prosecuted actively, diligently and continu- 
 ously and a well was to be completed by a certain date, 
 and, for failure to do so, to pay the lessor a certain 
 amount per annum, payable quarterly in advance, and 
 no work was done on the leased land, and the first 
 quarter was paid voluntarily and a judgment recovered 
 for the second quarter and paid, and an action was 
 brought for the third and fourth quarters and, as a de- 
 fense to the suit, the lessee set up a provision in the 
 lease which was as follows: "It is further understood 
 and agreed upon failure of the party of the second part 
 to perform all the covenants herein contained, such 
 failure to perform, or breach of the said covenants, shall 
 work an absolute forfeiture of this grant," the forfeiture 
 clause was held to be for the benefit of the lessor, and 
 was no defense to the suit; and that a lessee could not set 
 up his own default to defeat a covenant in a lease. 1 So 
 under a covenant in a lease that a failure to complete a 
 well, or to pay the rent, "within such time and place as 
 above mentioned shall render the lease null and void, 
 and to remain without any force and effect between the 
 parties;" the lease was held to continue in force until 
 the lessor would declare a forfeiture and the lessee was 
 liable for rent. 2 Where the lease provides that the 
 lessee may surrender the lease at any time, the lease is 
 in force against the lessee until surrendered and rent 
 must be paid up to the time of giving up the lease, 
 though the lease provided that the surrender of the 
 lease would release the lessee from all the covenants in 
 the lease and all money due. 8 Such provisions refer to 
 future liability and not to liabilities already incurred. 4 
 So where a lease provided that a failure to sink a well, 
 or pay the rental, would have the same force and effect 
 
 1. Wills vs. Mfct. Nat. Gas Co., 130 Pa., 222; 18 Atl., 721. 
 
 2. Bay vs. Western Pa. Nat. Gas Co., 138 Pa., 576; 20 Atl., 1065; 
 
 Galey vs. Killerman, 123 Pa., 491; 16 Atl., 474. 
 
 3. Danthett vs. Gibson, 11 Pa. Super. Ct., 543. 
 
 4. Bettman vs. Shadle, 22 Ind. App., 542; 53 N. E., 662; Ed- 
 
 wards vs. Mounsey, 15 Ind. App., 599; 44 N. E., 196. 
 
When Lessee is Relieved from Payment. 205 
 
 as if the lease was never made, will not release the 
 lessee from the payment of rent; 1 and where the lease 
 provided that the lease would be void and would not be 
 of any force and effect without the consent of both par- 
 ties, it was for the lessor to say whether the lease would 
 be continued or declared forfeited for failure to drill or 
 pay rent. 2 A lease containing 1 these provisions will sus-~ 
 tain an action for a default in the covenants on the part 
 of the lessee; 3 and it makes no difference whether the 
 lease creates an estate in the lessee or is a mere license. 4 
 If the lessee has an option to drill, or pay the rental, 
 the lessee must do one or the other and must pay rent, if 
 no well is dug. 5 So where gas was to be paid for as long 
 as it was used off the premises, the lessee must notify 
 the lessor when gas is no longer used, or the lessee will 
 be liable. 8 The lessee is liable though the lease is as- 
 signed and the lessor demands payment from the as- 
 signee. 7 If the lessee assigns a half interest in the 
 lease, both the lessee and assignee are jointly liable for 
 the rent. 8 The lessee is held liable on the ground of a 
 privity of contract which exists between lessor and 
 lessee during the entire life* of the lease, although the 
 lease is assigned. 9 
 
 SEC. 5. WHAT WILL NOT RELIEVE THE LESSEE 
 FROM PAYING RENT WHERE A TEST WELL is TO BE 
 SUNK, OR RENT is TO BE PAID, THE WELLS MUST BE 
 ACTUALLY SUNK IT CANNOT BE SHOWN NO OIL EXISTS 
 
 1. Ogden vs. Hatly, 146 Pa., 640; 23 Atl., 334. 
 
 2. Phillips vs. Vandergift, 146 Pa., 357; 23 Atl., 347. 
 
 3. Galey vs. Killerman, 123 Pa., 491; 14 Atl., 474. 
 
 4. Evans vs. Consumers Gas Trust Co., 29 N. E., 398; 31 L. R. 
 
 A., 673. 
 
 5. McMillan vs. Philadelphia Co., 159 Pa., 142; 28 Atl., 220. 
 
 6. Dauble vs. Union Heat & Light Co., 172 Pa., 388; 33 Atl., 694. 
 
 7. Pittsburg Consolidated Coal Co. vs. Greenlee, 164 Pa. St., 
 
 549; 30 Atl., 489. 
 
 8. Jackson vs. O'Hara, 183 Pa. St., 233; 30 Atl., 624. 
 
 9. Washington Natural Gas Co. vs. Johnson, 123 Pa., 575; 16 
 
 Atl., 799; Edmonds vs. Mounsey, 15 Ind. App., 399; 44 
 N. E., 196; Trobin vs. McAdams, 8 Bush, 74. 
 
206 Number of Wells to Be Sunk. 
 
 ON THE LAND. Where the lease provides that the lessee 
 shall pay the lessor a certain amount if oil or gas is pro- 
 duced in a certain amount, the test wells must be sunk to 
 relieve the lessee from the payment of rent, and it can- 
 not show by experts no oil exists. 1 Nor will the lessee be 
 relieved from the sinking" of wells or the payment of rent 
 by making tests on adjoining lands, and the result of the 
 tests show that no oil or gas is found on the adjoining 
 lands,* or the test wells show that no oil exists in the 
 community; 3 and the lessee will not be relieved by the 
 proof that scientific tests have been made and show that 
 no oil or gas exists. 4 And when the body of land leased 
 consists of several tracts, and the body of land is exten- 
 sive, the several tracts will be treated as several pieces 
 and wells must be put down on each. 5 So where a rental 
 was to be paid on a certain day each year as long as the 
 lessee failed to sink wells, the lessee is liable though the 
 lease contained a forfeiture clause in case no well was 
 sunk. 8 And where a lease provides for the sinking of 
 three wells with a certain rental from each, the lessee 
 must pay the rental where the third well is not sunk, and 
 it is no defense, on the part of the lessee, that as much 
 gas could be produced from the two wells as three wells 
 on the land. 7 
 
 SEC. 6. LESSEE is REQUIRED TO SINK THE REQUIRED 
 NUMBER OF WELLS TO DEVELOP THE LAND, IF THE 
 LEASE is SILENT AS TO THE NUMBER OF WELLS TO BE 
 PUT DOWN, OR MUST PAY DAMAGES FOR FAILURE TO DO 
 so WHERE THE LEASE PROVIDES FOR THE NUMBER OF 
 
 1. Iddings vs. Equitable Gas Co., 8 Pa. Super. Ct., 244. 
 
 2. Gibson vs. Oliver, 158 Pa., 277; 27 Atl., 961; Johnstown F. R. 
 
 Co. vs. Egbert, 152 Pa., 53; 25 Atl., 151; Springer vs. Cit- 
 izens Nat. Gas Co., 145 Pa., 430. 
 
 3. Gibson vs. Oliver, 158 Pa., 277; 27 Atl., 961. 
 
 4. Cochran vs. Pew, 159 Pa. St., 184; 28 At!., 219; Springer vs. 
 
 Citizens Nat. Gas Co., 145 Pa., 430; 22 Atl., 986. 
 
 5. Johnstown and T. R. Co. vs. -Egbert, 152 Pa., 53; 25 Atl., 151. 
 
 6. Conger vs. Nat. Transp. Co., 165 Pa., 561; 30 Atl., 1038; 
 
 Leatherman vs. Oliver, 151 Pa., 646; 25 Atl., 309. 
 
 7. Young vs. Equitable Gas Co., 5 Pa. Super. Ct., 232. 
 
Wells Required to Be Put Down. 207 
 
 WELLS TO BE PUT DOWN, NO MORE NEED BE BORED BY 
 LESSEE. Where the lessor is to receive a part of the 
 product as a royalty for the oil or gas produced from the 
 land, and the lessee is required to develop the land for 
 the production of oil and gas, and if the lease is silent as 
 to the number of wells to be sunk, the lessee will be 
 required to sink a sufficient number of wells to develop 
 the land and protect the same from drainage by wells on 
 other lands in the same territory. 1 So where the lessor 
 was to receive a part of the oil as a royalty, and the 
 lessee was to prosecute the work with due diligence, and 
 the lessee failed to do so, but worked the lands adjoin- 
 ing, the lessor can recover the value of the oil the lessee 
 would be entitled to receive, if the lands were worked by 
 the lessee; 2 but the lessee is not bound to develop the 
 land or pay for the prospective royalty when the land 
 could not be worked at a profit; 3 and under an implied 
 covenant to develop the land, the judgment of the lessee 
 that the land could not be worked at a profit, is entitled 
 to greater weight than the opinion of the judge who tried 
 the case, the lessor and expert witnesses. 4 So where no 
 rent was agreed to be paid to the lessor in case opera- 
 tions were not prosecuted on the lands under a lease, giv- 
 ing the lessee all right, title and interest in the oil, the 
 lessor was entitled only to nominal damages; 5 and where 
 the lease sets forth the number of wells to be drilled by 
 the lessee there is no implied covenants that the lessee 
 is to put down additional wells. 6 
 
 SEC. 7. WHEN LESSEE is NOT LIABLE. A lessor is 
 not entitled to share in the royalty from the oil produced 
 in lands not owned by the lessor, where the well was 
 
 1. Kleppener vs. Lemon, 176 Pa., 502; 35 Alt., 109; Harris vs. Ohio 
 
 Oil Co., 57 Ohio St., 118; 48 N. E., 502; Glascow vs. Char- 
 tiers Oil Co., 152 Pa., 48; 25 Atl., 232; Koch's App., 93 Pa., 
 434; McNightvs.Manfct. Nat. Gas, 146 Pa., 185; 23 Atl., 164. 
 
 2. Bradford Oil Co. vs. Blair, 113 Pa., 83; 4 Atl., 218. 
 
 3. Bradford Oil Co. vs. Blair, 113 Pa., 83; 4 Atl., 218. 
 
 4. Young vs. Forest City Oil Co., 194 Pa., 243; 45 Atl., 121. 
 
 5. Chamberlain vs. Parker, 45 N. Y., 569. 
 
 6. Colgan vs. Forest City Oil Co., 194 Pa., 234; 45 Atl., 119. 
 
208 When Not Liable. 
 
 located on snch lands by a mistake both of the lessor and 
 lessee; 1 and a lessee is not liable for rental where a well 
 was sunk, and then permanently abandoned, under a 
 lease for twenty years, providing 1 that the lessor is to 
 receive $500 for each well of gas used off the premises, 
 and the gas was to be found in paying quantities, and 
 made use of by the lessee. 2 The lessee is not liable for 
 rent or royalty, when the lessor had only a life estate in 
 the premises, and was not authorized by law to dispose 
 of the oil or gas, when the lessee never entered into pos- 
 session of the premises. 3 So where a lease was made by 
 the wife, of her lands, and the law required such an 
 instrument to be signed by both husband and wife, and 
 the wife alone signed the lease, the lessee is not liable 
 for rent where such lessee did not enter into possession 
 and the lease was void because the husband did not join 
 in the lease. 4 The lessee is not liable for rent if the 
 lessor does not recognize the validity of the lease at the 
 time the suit is brought. 6 A lessee is not liable for rent 
 when no possession was taken of the premises where the 
 lease was to expire by a certain time, if no well was 
 drilled, unless the lessee paid a certain amount to con- 
 tinue the life of the lease. The lease, in such a case, 
 is a mere option, and neither the lessor nor lessee is 
 bound. 6 Such a lease becomes void by its own provi- 
 sions; 7 but is not void where the lease provides for cer- 
 tain monthly payments until the completion of a well, 
 and if the rent is not paid, the lease is to be absolutely 
 void, the lease is optional only as to the lessor. 8 
 
 So, where there are no express covenants in a lease 
 that a rental shall be paid, the lessee is not liable when 
 
 1. Mays vs. Dwight, 82 Pa., 464. 
 
 2. Williams vs. Guffy, 178 Pa. St., 342; 35 Atl., 875. 
 
 3. Marshall vs. Mellon, 179 Pa., 371; 36 Atl., 201. 
 
 4. Columbia Oil Co. vs. Blake, 13 Ind. App., 680; 42 N. E., 234. 
 
 5. Wheeling vs. Phillips, 10 Pa. Super. Ct., 634. 
 
 6. Brooks vs. Kunkle. Ind. App., ; 57 N. E., 260; Snod- 
 
 grass vs. South PennOil Co., 47 W.Va., 509; 35 S. E., 820. 
 
 7. Kenton Gas & Electric Co. vs. Downey, 17 Ohio C. C., 101. 
 
 8. Jackson vs. O'Hara, 183 Pa., 233; 38 Atl., 624. 
 
Oil in Paying Quantities. 209 
 
 the lease was to be void unless a well was put down by 
 a certain time, unless a certain rental was paid; 1 and 
 where a lease does not give the lessee the exclusive priv- 
 ilege to drill, the relation of landlord and tenant does 
 exist, and the lessee did not take possession and the 
 lease was to be void if wells were not put down by_a 
 certain time or a rental paid. * So where a well is put 
 down to the usual depth and no oil is found, the land is 
 then properly developed, by lessee, and he is not liable 
 for rent. 3 
 
 SEC. 8. LESSEE LIABLE WHEN ANOTHER LESSEE 
 DRILLED ON THE LAND FOR WHICH THE LESSEE WAS TO 
 BE PAID PAYING QUANTITIES CONSTRUED. The lessee 
 cannot defeat the claim of the lessor for rent because 
 another was permitted by the lessor to enter the prem- 
 ises to drill for oil under an agreement with the original 
 lessee that such lessee would be paid for such privilege 
 given to the second lessee. 4 So where a lease provided 
 that the lessor was to receive a certain sum in cash in 
 hand and further additional sum, if oil was found in pay- 
 ing quantities, "to be paid within thirty days from the 
 completion of the well," the lessee was to pay the addi- 
 tional sum if oil was produced for thirty days in such 
 quantities as would warrant the operation of the well 
 for that period and the production for the thirty days 
 need not be of such an amount as would cover the cost 
 of the well. 6 So gas is produced in paying quantities 
 under a provision of a lease if the gas is pumped into 
 the pipe lines of the lessee and sold to customers and 
 the rental must be paid.' So where the lessee had a 
 right to surrender the lease when the well ceased to 
 produce, a payment to the lessee, stating that it was in 
 
 1. Glascow vs. Chartiers Oil Co., 152 Pa., 48; 25 Atl., 232. 
 
 2. Diamond Plate Glass Co. vs. Curties, 22 Ind. App., 346; 52 
 
 N. E.,782. 
 
 3. Rice vs. Ege (C. C. N. D. N. Y.), 42 Fed. R., 661. 
 
 4. Horberg vs. May, 153 Pa., 216; 25 Atl., 750. 
 
 5. Collins vs. Mechling, Pa., ; 38 W. N. C., 235. 
 
 6. Hankey vs. Krump, 12 Ohio C. C., 95. 
 
210 When Relieved from Payment. 
 
 full for all royalties does not amount to a surrender 
 of the lease where the lease was afterwards assigned, 
 and fhe lessee or assignee must pay the royalty for the 
 year thereafter if the premises are held under the lease 
 at the beginning* of the year. l So where a default was 
 made before the lease was surrendered, the lessee is not 
 relieved from the payment of the amount due, in the 
 lease, under a provision that the lessee "may, at any 
 time, surrender up this lease and be relieved from any 
 and all payments or liabilities." 2 So a surrender of a 
 lease after holding it for a period of ten months will not 
 release the lessee from the payment of rent for that 
 year, when such rent was to be paid if no well was com- 
 pleted in that year. 3 So where a rental was to be paid 
 as long as gas was found in paying quantities, the lessee 
 is not relieved from liability to pay the stipulated rent 
 where a gas well was sunk and piped from the well by 
 shutting off the gas from the well and not notifying the 
 lessor, though the lessee had a right to surrender the 
 lease. 4 So a failure to demand rent for the non-comple- 
 tion of a well by a certain time will not defeat its collec- 
 tion thereafter; 5 nor a notice of an election, on the part 
 of the lessee, to terminate a lease, on the first day of an- 
 other year, will not relieve the lessee from the payment 
 of rent for that year. 6 But a lessee is relieved from the 
 further payment of rent, when the gas is shut off and the 
 lessor is notified, when the lease gives the lessee a right 
 to do so upon ceasing to use gas; 7 and where the lessor had 
 a right to declare a forfeiture or collect money, and if the 
 money was collected the lessee's lease would be extended 
 
 1. Coulter vs. Conemaugh Gas Co., Pa., ; 50 Pitts. L. J. 
 
 N. S.,281. 
 
 2. Aderhold vs. Oil Supply Co., 158 Pa., 401; 28 Atl., 22. 
 
 3. Breckenridge vs. Parrott, 15 Ind. App., 411; 44 N. E., 66. 
 
 4. Dauble vs. Union Heat. & Light Co., 172 Pa., 388; 33 Atl. t 694. 
 
 5. Pittsburg Consolidated Coal Co. vs. Greenlee, 164 Pa., 549; 30 
 
 Atl., 489. 
 
 6. Nesbit vs. Godrey, 155 Pa., 251; 25 Atl., 621. 
 
 7. Indianapolis Gas Co. vs. Teters, 15 Ind. App., 475; 44 N. E., 
 
 549. 
 
When Relieved from Payment. 211 
 
 and a right to complete a well then in the course of con- 
 struction, the lessor cannot recover the money due for 
 non-completion of the well within the time specified in the 
 lease where a forfeiture is declared. * And where a for- 
 feiture is declared, no rent or damages can be recovered 
 for failure to drill on the premises. 8 So where the gas 
 well was destroyed by being flooded with salt water with- 
 out any fault on the part of the lessee, the lessee will be 
 relieved from the payment of future royalties though 
 the lease does not so provide, as such a provision is im- 
 plied; 3 and where the lease provides that it may be sur- 
 rendered and liabilities thereunder to cease, an actual 
 surrender is not necessary, if the acts of the parties are 
 such to clearly show that the lease was surrendered; 4 
 and such a surrender may be made by parol. 5 But when 
 wells are bored on the premises and produce gas, and 
 the lessee has the exclusive privilege and the lessor was 
 to receive so much per well as long as gas is sold off the 
 premises, the lessee must show why gas is not sold to 
 escape liability, and the excuse must be a legal one.* 
 But if a well ceases to produce gas and the les.see was 
 to pay only so long as gas was produced from the well, 
 if the well ceases to produce during the year the lessee 
 is liable only for part of the year. 7 The lessee is liable 
 to pay a rent, where the well was not put down, in the 
 time specified where the lessee had a right to surrender 
 the lease and did not do so, 8 and when the surrender 
 was made the lessee is liable for all rents due at the 
 time of the surrender; 9 but because the lessee paid two 
 
 1. Wolf vs. Guffey, 161 Pa., 276; 28 AtL, 1117. 
 
 2. Wilson vs. Goldstein, 152 Pa., 524; 25 Atl., 493. 
 
 3. McConnell vs. Lawrence Nat. Gas Co., 30 Pitts. L. J. N. S.. 
 
 281. 
 
 4. Hooks vs. Forst, 165 Pa., 238; 30 Atl., 846. 
 
 5. Cochran vs. Shenanago Nat. Gas Co., 23 Pitts., L. J.N. S.,82. 
 
 6. lams vs. Carnegie Nat. Gas Co., 194 Pa., 72; 45 Atl., 54. 
 
 7. Moon vs. Pittsb. Plate Glass Co., 24 Ind. App., 34; 56N.E., 
 
 108. 
 
 8. Roberts vs. Bettman, 45 W. Va., 143; 30 S. E., 95. 
 
 9. Bettman vs. Shadle, 22 Ind. App., 542; 53 N. E., 602; Smiley 
 
 vs. Western Penn. Nat. Gas Co., 138 Pa., 576; 21 Atl., 1. 
 
212 Liability of Assignee. 
 
 installments when not liable, the lessee is not estopped 
 to set up the invalidity of the lease when sued on the 
 next installment; 1 and the lessee is liable to the owner 
 of a coal mine on an agreement to pay so much for a well 
 then being- drilled, and an additional sum if other wells, 
 though the lease was assigned and the additional wells 
 were drilled by the assignee when the coal company did 
 not assent to the assignment. * 
 
 SEC. 9. ASSIGNMENT OF LEASE RELATION OF THE 
 PARTIES EXPRESS AGREEMENT IN THE LEASE TO PER- 
 FORM ITS COVENANTS WILL MAKE ASSIGNEE LIABLE. 
 The assignment of a lease and the acceptance of such 
 lease by the assignee creates no privity of contract be- 
 tween the assignee and the lessor; and the liability of 
 the assignee exists between the assignee and the lessor 
 only on the ground of privity of estate. 3 But where the 
 assignment of the lease provides that the assignee shall 
 perform all the covenants and agreements contained in 
 the lease, and the assignee accepted the lease with such 
 a provision in the assignment, the assignee is liable to 
 the lessor for all the provisions contained in the lease, 
 whether they run with the land or not; 4 and where the 
 assignee agreed under seal to perform the covenants in 
 the lease the assignee is liable to the lessor to pay rent 
 after parting with the lease by assigning the same to a 
 third person, and the lessor recognizes such subsequent 
 assignee or his tenant; 5 and, where the assignment was 
 made by a separate instrument, the assignee becomes 
 liable for the rent for the whole term under an agreement 
 in the assignment to perform all the covenants in the 
 lease. 6 
 
 1. Diamond Plate Glass Co. vs. Tunnell, 22 Ind. App., 132; 52 
 
 N. E., 168. 
 
 2. Pitts. Con. Coal Co. vs. Greenlee, 164 Pa., 549; 52 N. E., 168. 
 
 3. Congregational Soc. vs. Rex., -- Vt., ; 17 Atl., 719; Sex- 
 
 ton vs. Chicago Storage Co., 129 111., 327. 
 
 4. Woodland Oil Co. vs. Crawford, 55 Ohio, 161; 44 N. E., 1093. 
 
 5. Post vs. Jackson, 17 Johns, 239. 
 
 6. Mortmean vs. Steele, 14 Wis., 272. 
 
Privity of Estate Binds Assignee to Pay Eent. 213 
 
 SEC. 10. LIABILITY OF ASSIGNEE is BASED ON PRIV- 
 ITY OF ESTATE No LIABILITY FOR COVENANTS BROKEN 
 BEFORE OR AFTER THE ASSIGNEE PARTS WITH THE 
 LEASE MUST PERFORM COVENANTS WHICH RUN WITH 
 THE LAND. Where there is an assignment of the lease 
 by lessee, and the assignee does not assume to perform 
 any obligation or covenant contained in the lease, the 
 liability of the assignee depends solely on the ground of 
 privity of estate between the lessor and assignee. * The 
 liability of the assignee of the lease in such a case con- 
 tinues only while privity of estate exists between the 
 assignee and the lessor; consequently, for covenants 
 broken before the assignee obtained the estate, or after 
 parting with it, the assignee is not liable. 2 Where the 
 assignee holds the lease as assignee and exclusive owner, 
 such assignee must perform all the covenants which run 
 with the land, such as the payment of rent or royalty or 
 sinking wells; 3 and must account to the lessor for the 
 proceeds for the sale of gas, which was due the lessor as. 
 a royalty, and received while the privity of estate ex- 
 isted. 4 Where the interest of the lessee was bought at 
 a judicial sale, the purchaser is liable to perform the 
 covenants of the lease which run with the land, as the 
 purchaser is regarded in law as an assignee; 5 and where 
 a half interest is assigned, the lessee and assignee are 
 jointly liable; 6 and when the lessee covenanted to sink a 
 well, the assignee, is liable on the covenant, where the 
 breach occurred, while assignee held the lease, 7 and is 
 liable while the estate is held, though there is a cove- 
 nant against assignment. 8 
 
 1. Bradford Oil Co. vs. Blair, 113 Pa., 83; Edmonds vs. Moun- 
 
 sey, 15 Ind. App., 599; 44 N. E., 196. 
 
 2. Washington Natural Gas Co. vs. Johnson, 123 Pa. St., 576; 16 
 
 Atl., 799; Bradford Oil Co. vs. Blair, 113 Pa. St., 83. 
 
 3. Brackenridge vs. Parratt, 15 Ind. App., 411; 44 N. E., 66. 
 
 4. Akin vs. Marshall Oil Co., 188 Pa., 614; 41 Atl., 748. 
 
 5. Aderhold vs. Oil Supply Co., 158 Pa., 401; 28 Atl., 22. 
 
 6. Jackson vs. O'Hara, 183 Pa. St., 233; 38 Atl., 624. 
 
 7. Watt vs. Equitable Gas Co., 8 Super Ct. (Pa.), 618; 29 Pittsb. 
 
 L. J. U. S., 221. 
 
 8. Oil Creek etc. vs. Stanton Oil Co., 23 Pa. Co. Ct., 153; 30 
 
 Pittsb. L. J.N. S.,286. 
 
214 Assumption to Perform Covenants by Assignee. 
 
 SEC. 11. LIABILITY TO LESSOR ON ASSUMPTION TO 
 PERFORM THE COVENANT IN THE LEASE An assignee 
 of the lease is liable to the lessor for the payment of 
 past due royalties, where the assignment of the lease 
 provided that it was subject to the "terms, conditions 
 and reservations of said leases or grants respectively, 
 and under and subject to the rents, royalties and cove- 
 nants in said lease and conveyances respectively reserved 
 and contained, on the part of the grantees, or lessees 
 thereof, to be paid, kept, done and performed;" and 
 though the lease provided the non-payment of the royal- 
 ties would make the lease void and there was a breach 
 before the assignment of the lease. * And where the oil 
 wells were not sunk, or the land developed by the lessor 
 within the time specified in the lease, and the time had 
 expired before the lease was assigned, the assignee is 
 liable for the damages due the lessor under the cove- 
 nants in the assignment as above stated. 2 
 
 SEC. 12. LIABILITY OF THE ASSIGNEE TO THE LESSOR 
 DEPENDS ON THE PRIVITY OF ESTATE. By the as- 
 signment of a lease a beneficial use or a right to the 
 enjoyment of such a use is conferred upon the assignee, 
 so covenants in the lease to pay rent, to keep the prem- 
 ises in good repair, and to cultivate the land or develop 
 the land, are covenants annexed and attached to the 
 estate of the lessee, and when the lease is assigned and 
 accepted by the assignee they pass as burdens on the 
 estate coming to the assignee, and must be performed 
 while the estate rests in the assignee. 3 The liability, 
 however, to perform covenants continues only so long 
 as the privity of estate exists between the lessor and 
 assignee, and an assignment of the lease will put an end 
 to the privity of estate, and this is true, no matter to 
 whom the assignmet is made, and the assignee will be no 
 
 1. Woodland Oil Co. vs. Crawford, 55 Ohio, 166; 44 N.E., 1093. 
 
 2. Woodland Oil Co. vs. Crawford, 55 Ohio, 166; 44 N.E., 1093. 
 
 3. Babcock vs. Scoville, 56 111., 461; Pingry vs. Watkins, 17 Vt., 
 
 379; GKddings vs. Felker, 70 Tex., 176; 7 S.W.,694; Thomas 
 vs. Connell, 5 Pa., 13. 
 
Liability of Assignee to Lessee. 215 
 
 longer liable for any covenants thereafter; 1 but the as- 
 signee is liable for all covenants broken while the privity 
 of estate existed; 2 and is liable if the assignee remained 
 on the premises up to the day the rent was due, although 
 the assignment was made some days before. 3 The as- 
 signee of an oil and gas lease is not liable for a breach _ 
 of a covenant to sink a well by a certain time, when the 
 time by which the well was to be put down did not expire 
 until the lease was reassigned. 4 
 
 SEC. 13. LIABILITY OF ASSIGNEE to LESSEE. The 
 assignee is liable to the lessee, when the assignment was 
 made subject to the rent reserved in a lease, and the as- 
 signee failed to pay the lessor and the lessee paid the 
 rent to the lessor. 5 So where the assignee assigns the 
 lease, the remote assignee is liable for a breach of any 
 covenant which runs with the land, while the term was 
 held by such remote assignee. 6 And where there was a 
 stipulation in the assignment of the lease that a well 
 would be drilled by the assignee, the assignee is liable 
 for the breach to the lessee for not sinking the well; T 
 but where the lessee receive a certain cash payment for 
 the assignment of the lease and was to receive an addi- 
 tional sum, when a producing well was found on the land 
 covered by the lease, the remote assignee is not liable to 
 pay the additional sum, as the payment of the additional 
 sum is personal between the lessee and the first as- 
 signee. 8 
 
 1. Durand vs. Curtis, 57 N. Y., 11; Baily vs. Richardson, 66 Cal., 
 
 421; Borlands App., 66 Pa., 470; Johnson vs. Sherman, 15 
 Cal., 287; Anslow vs. Carrie, 2 Madd., 330. 
 
 2. Young vs. Preyster, 3 Bosw., 308. 
 
 3. Negley vs. Morgan, 46 Pa., 281. 
 
 4. Washington Nat. Gas Co. vs. Johnson, 123 Pa., 576; 16 Atl., 
 
 799; Watts vs. Equitable Gas Co., 8 Pa. Super. Ct., 618; 
 Bradford Oil Co. vs. Blair, 113 Pa., 83. 
 
 5. Steward vs. Walverridge, 9 Beng., 60. 
 
 6. Brinkley vs. Hambelton, 67 Med., 169; 8 Atl., 904. 
 
 7. Knapp vs. Bright, 186 Pa., 181; 40 Atl., 414. 
 
 8. Fisher vs. Guffy, 193 Pa., 393; 44 Atl., 459. 
 
216 Assignment of Rent or Lease. 
 
 SEC. 14. ASSIGNMENTS OF ROYALTIES ASSIGNMENT 
 OF THE LEASE SALE OF THE LAND PASSES THE ROYAL- 
 TIES TO BECOME DUE. The lessor has a right to dispose 
 of the lease made to the lessee. 1 So where the lessor 
 assigns all his interest in the lease, the assignee may 
 recover damages accrued at the time of the assignment 
 for any breach of the covenant while the lease was held 
 by the lessor; 2 and where the lessor disposes of the land 
 and the royalties to accrue on the lease are not reserved, 
 the royalties pass with the land and are payable to the 
 grantee of the lessor. 3 But where a lessor made a lease 
 of the oil and gas and reserved one-eighth of the oil and 
 gas as a royalty, and then made a deed of gift of the land 
 to his children and reserved a life estate in the land, the 
 royalty reserved did not pass to the children. 4 So where 
 the husband and wife convey lands and the deed is made 
 subject to a reservation of one-eighth of all the petro- 
 leum found in the land to the grantors, and the grantee, 
 in the deed, leases the land and reserves one-eighth of 
 the petroleum, the reservation of one-eighth of the pe- 
 troleum is a reservation of one-eighth of the seven-eighths 
 which were vested in the lessor under the deed to him; 
 and the one-eighth remained in the husband and wife by 
 the force of the deed made by them. 5 So where the tes- 
 tator leased the land for a period of years and the lease 
 provided that a certain royalty was to be paid for all the 
 oil or gas produced, the royalty reserved will go to the 
 administrator or executor and will not go to the person 
 who receives the land. 6 Under a devise of lands by a 
 testator, where there was an outstanding lease, at the 
 time of the devise, and active operations were prosecuted 
 on one of the tracts of land devised, and oil was being 
 
 1. Indianapolis Nat. Gas Co. vs. Pierce, 25 Ind. App., 116; 56 
 
 N. E., 137. 
 
 2. Indianapolis Nat. Gas Co. vs. Pierce, 56 N. E., 137. 
 
 3. Chandler vs. Pittsb. Plate Glass Co., 20 Ind. App., 165; 50 
 
 N. E., 400. 
 
 4. Koen vs. Bartlett, 41 W.Va., 559; 23 S.E., 664; 31 L.R.A., 121. 
 
 5. Harness vs. Cobb W. Va., ; 38 S. E., 662. 
 
 6. Brunots Est., 29 Pitts. L. J. N. S. (Pa.), 105. 
 
Devise of Land Leased. 217 
 
 produced, the devisees will share in proportion to the 
 number of acres of land devised to each in all the royalty 
 derived from the lease in force at the time of the death 
 of the lessor; 1 but the devisee is entitled to have the 
 value of the rental for the land on which the oil is being- 
 produced, deducted from the royalties before a division^ 
 is made. 2 
 
 In Wettengel v.Gormley, 160 Pa. St., 559; 28 Atl., 934, 
 the lease contained a provision that, "It is understood 
 between the parties to this agreement that all the con- 
 ditions between the parties hereto shall extend to their 
 heirs, executors and assigns," and at the time of the 
 death of the lessor the lease had yet twelve years to run 
 before the time would expire and the land devised was 
 made up of three farms containing- 600 acres of land and 
 to each of the children, three in number, he devised a 
 farm and at the time of his death and when the contro- 
 versy arose active operations were pursued on one farm 
 and oil was produced and no operations were begun on 
 the other farms, so the child who received the farm on 
 which the oil was being produced claimed all the royal- 
 ties which was one-eighth reserved in the lease. The 
 court in deciding the case held that the disposition of 
 oil and gas differed from the disposition of solid miner- 
 als because oil and gas were fluid and that operations on 
 one tract of land would have the effect of drawing the 
 oil and gas from distant tracts of land, and although no 
 operations were carried on in the other two tracts of 
 land yet the wells from which oil was produced were on 
 an adjoining tract and the effect would be to draw the 
 oil from the other farms so all must share in the royalty 
 in the proportion his land bears to the whole tract. 
 
 In a case where the owner of land executed an oil 
 lease for a term of years and then died leaving a widow, 
 the widow is entitled to share in the royalty derived 
 from the land leased by her husband and such a royalty 
 is not a part of the corpus of the estate but an income.* 
 
 1. Wettengel vs. Gormly, 160 Pa. St., 559; 28 Atl., 934. 
 
 2. Wettengel vs. Gormly, 184 Pa. St., 354; 39 Atl., 57. 
 
 3. Woodbnrns Est., 138 Pa., 606; 21 Atl., 16. 
 
218 Royalties Wiere Land is Drained TJirough Other Land. 
 
 In case of joint tenants or tenants in common each 
 tenant is entitled to his share of the rent in proportion 
 to the land owned by such tenant 1 but the payment to 
 one joint lessor will release the lessee from further pay- 
 ment when notice is not given to the lessee not to pay 
 the whole rent to him. 2 
 
 SEC. 15. ROYALTIES WHERE THE LAND LEASED is 
 DRAINED THROUGH WELLS ON OTHER LANDS. Where a 
 lessee acquired a lease on a tract of land and the lease 
 provided that the lessor was to receive one-eighth of all 
 the oil produced on the premises as a royalty and the 
 lessee had also a lease on the lands adjoining the land of 
 the lessor and the lessee put down wells on the lands so 
 adjoining" and drained the lands of the lessor, the lessor 
 was held entitled to royalties as was provided in the 
 lease and could not be defeated by draining the land by 
 wells on adjoining lands. 8 The lessee must pay the 
 lessor for the time the latter's lease was in force a 
 royalty in proportion of the lessor's land which was 
 drained to that of the lessee's land drained through the 
 wells in the latter's lands. 4 
 
 SEC. 16. TENANT CANNOT DENY TITLE OF LESSOR. 
 The lessee or any person claiming under him, cannot 
 deny the title of the lessor while the lessee, or his as- 
 signee, holds possession of the estate acquired under a 
 lease. Where the lessee or assignee claims title hostile 
 to the lessor, the lease is thereby forfeited; 6 but the 
 lessee may show that the lessor has disposed of his es- 
 tate and title to the land, or was deprived of the same 
 
 1. Swint vs. McCalamont Oil Co., 184 Pa., 202; 38 Atl., 1021; 
 
 Higgins vs. Cal., Ref. & A. Co., 109 Cal.,304; 41 Pac., 
 1087. 
 
 2. Swint vs. McCalamont Oil Co., 184 Pa., 202; 38 Atl., 1021. 
 
 3. Kleppner vs. Lemon, 176 Pa. St., 502; 35 Atl., 109. 
 
 4. Kleppner vs. Limon, 197 Pa. St.. 430; 47 Atl., 353. 
 
 5. Tobin vs. Young, 124 Ind., 507; 24 N. E., 121; Byrnes vs. 
 
 Douglas, 23 Nevada, 83; 42 Pac., 798; Goodman vs. Mal- 
 colm, 5 Kan. App., 285; 48 Pac., 439; Willison vs. Wai- 
 kins, 3 Pet., 43; Walden vs. Rodley, 14 Pet., 156; Zeller 
 vs. Eckert, 4 How., 289. 
 
Tenant Cannot Deny Title. 219 
 
 by an act of the law. * And where the dispute was an 
 honest one, as where the owners of a corporate stock of 
 the lessee company voted to buy the land leased, and 
 the company was under the belief the purchase was made, 
 but the purchase was void because the act of the stock- 
 holders was not ratified by the directors of the company, 
 the lease is not forfeited by the corporation claiming 
 title against the lessor though the claim was void. 8 The 
 lessee, subject to the exceptions above stated, must first 
 surrender the possession acquired under the lease before 
 the title of the lessor can be called in question 8 and this 
 is true, though the title is in the lessee. 4 
 
 1. Corrigan vs. Chicago, 144 111., 537; Lodge vs. Martin, 31 App. 
 
 Div. (N. Y.),13. 
 
 2. Poterie Gas Co. vs. Poterie, 179 Pa., 68; 36 Atl., 232. 
 
 3. Nehr vs. Krewsberg, 187 Pa., 53; 40 Atl., 810. 
 
 4. Mackin vs. Haven, 187 111., 502; Thayer vs. Society, 20 Pa. 
 
 St., 60. 
 
Reservation and Location of Oil Claims. 
 
 CHAPTER XV. 
 
 SECTION 1. RESERVATIONS AND RESTRICTIONS 
 WHEN A RESTRICTION RESERVATION BY IMPLICATION- 
 CONVEYANCE OF MINERALS DOES NOT INCLUDE PETRO- 
 LEUM CONTRARY DOCTRINE. When land is conveyed 
 or leased for the production of oil or gas the owner very 
 often inserts in the instrument of conveyance exceptions 
 and reservations, and the courts are calted upon to con- 
 strue the instrument as to whether the exception or res- 
 ervation reserves the oil and gas to the owner in the 
 tract reserved, or whether the exception or reservation 
 only restricts the grantee in drilling on the particular 
 tract. Thus where the instrument reserved out of the 
 whole tract ten acres, "upon no wells shall be drilled 
 without the written consent of the party of the first 
 part," the court, in giving construction to the instru- 
 ment, held that the lessor reserved no interest to the 
 minerals in the land, and the whole title passed to the 
 grantee with the restriction that the lessee could sink 
 no gas or oil wells on the land reserved without the 
 written consent of the grantor. 1 But when a lease 
 granted to the lessee, and his heirs and assigns forever, 
 "all the coal of every variety, all the iron ore, fine 
 clay and other valuable minerals,'' the deed did not 
 convey any title to the petroleum or gas to the lessee. 
 The words "other minerals" or "other valuable miner- 
 als" taken in the broadest sense would include petroleum 
 oil, but if the parties did not intend that the title to pe- 
 troleum and gas should pass, the title remains in the 
 
 1. Brown vs. Spilman, 155 U. S., 665; Reversing, Spilman vs. 
 Brown, 45 Fed. R. (C. C. W. D. W. Va.), 291. 
 
Reservation and Restriction. 221 
 
 owner of the fee. 1 So where the grantor in his deed of 
 conveyance reserved "all the minerals," the reservation 
 did not include the petroleum. The word minerals, in 
 its broadest sense, would include all inorganic substance, 
 such as clay, rock, sand, or anything dug- from the mines, 
 so that the reservation would be as broad as the grant, 
 and would be void; so the court, in determining the mean- 
 ing of the term "all minerals," concluded that the parties 
 intended to include only such minerals as those which 
 are classed to be minerals by the people in general and 
 this is more especially true, when petroleum was not 
 known to exist on the land at the time of the convey- 
 ance. 8 A directly opposite conclusion was arrived at by 
 another court under a reservation of "All mines, miner- 
 als and metals in and under the land." 3 The court dis- 
 approved of the doctrine of the Pennsylvania court, and 
 said that "the great weight of authority is not only op- 
 posed to that case, but seems to us to proceed upon false 
 principles. The ground of that decision, as stated in the 
 opinion, is that by the bulk of mankind other things are 
 not considered as minerals except such things as be of a 
 metallic nature, such as gold, silver, copper and lead," 
 etc. ; and that it was not true, that in popular estimation, 
 petroleum is not regarded as a mineral substance any 
 more than is animal or vegetable oil, and said further 
 "that the true meaning of the word 'mineral, ' as well as 
 the meaning among the bulk of mankind, must be deter- 
 mined from the dictionaries and other similar authori- 
 ties; and that the bulk of mankind could not be regarded 
 as holding that the word mineral applies only to metals. " 
 The Pennsylvania case finds support also in other states 
 where it was held that a reservation of minerals did not 
 include minerals not known to exist. 4 There is no ques- 
 tion but that petroleum is a mineral, but it seems, 
 
 1. Detlor vs. Holland, 57 Ohio St., 492; 49 N.E., 690. 
 
 2. Dunham vs. Kirkpatrick, 101 Pa., 43; 47 Am. Rep., 696. 
 
 3. Murray vs. Ailard, 100 Tenn., 100; 43 S. W., 355; 39 L. R. A., 
 
 249. 
 
 4. Detlor vs. Holland, 57 Ohio St., 492; Deer Lake Co. vs. Mich. 
 
 Land & I. Co., 89 Mich., 180; 50 N. W., 807. 
 
222 Eight of Abutting Oivners to Minerals. 
 
 whether the parties intended to include petroleum as 
 well as metallic substances, is the question which caused 
 the courts to hold opposite views. Where the owner re- 
 serves the oil and gas from the conveyance such owner 
 retains an interest in the land, and such an interest to 
 which a judgment lien will attach, and such an interest 
 may be sold on execution. 1 
 
 SEC. 2. RIGHTS OF ABUTTING OWNERS WHERE THE 
 FEE IN THE STREETS AND HIGHWAYS ARE IN THE PUBLIC 
 IN TRUST. When the fee of the streets and highways is 
 held in trust by the state for the benefit of the public, 
 the owner of the abutting property has no interest in the 
 mineral found beneath the surface, so the proper officers 
 may dispose of the oil and gas rights in the public high- 
 ways and streets. 2 In similar cases, where a coal com- 
 pany took the coal which underlaid the streets of a city, 
 and the legal title of the streets is in the city for the 
 benefit of the public, the city .was held to be authorized 
 to sue the coal company and recover damages for the 
 wrongful taking of the coal, without the consent of the 
 city; but the court declined to decide whether the city 
 had a right to sell the coal, as the question was not prop- 
 erly presented by the pleadings. 3 So where the making 
 of a plat by the owner of the land, and the filing of the 
 plat have the effect of granting the fee in the streets to 
 the city in trust for the public, an owner of the abutting 
 property has no right to take the coal from beneath the 
 streets and would be liable in trespass. 4 And where the 
 former owner of the streets leased them to a third per- 
 son for the purpose of taking the coal and the coal was 
 mined and a royalty paid to such owner, the city was 
 held to be the absolute owner of the street by dedication 
 by the former owner, and the city could waive the tort 
 and sue the owner or his heirs for the royalty received. 8 
 
 1. First National Bank vs. Dow, 41 Hun., 13. 
 
 2. Ontario Nat. Gas Co. vs. Gasfield, 18 Ont. App., 626. 
 
 3. Union Coal Co.vs. Cityof La Salle,136 111., 119; 12 L.R.A.,326. 
 
 4. Des Moines vs. Hall, 24 la., 234. 
 
 5. Hawesville vs. Hawes, 6 Bush., 232. 
 
When Owner Abutting Street May Take Minerals. 223 
 
 Where the fee is thus vested in the public the only rights 
 an abutting* property owner has to the street is to have 
 it kept open and free from obstruction for the purpose 
 of using the street to reach his lots; and such abutting 
 owner's title extends only to the line of the street and 
 has no right to take the minerals from beneath the sur- 
 face of the street in front of his lot. The fee in the city, 
 however, is a determinable or base fee and when the 
 street is vacated and abandoned, the fee returns to the 
 person who dedicated it to the public. l 
 
 SEC. 3. THE MINERALS ARE THE PROPERTY OF AN 
 ABUTTING OWNER WHEN THE PUBLIC ACQUIRES BUT THE 
 FEE FOR THE PURPOSE OF TRAVEL THE PUBLIC HAS 
 NO TITLE TO THE MINERALS WHERE ONLY AN EASEMENT 
 TO TRAVEL is ACQUIRED THE OWNER MAY TAKE THE 
 MINERALS IN SUCH CASE. A statute which provided 
 that maps and plats of cities and towns made, acknowl- 
 edged and recorded by the owner of any land of any city, 
 town or village or addition to such city town or village, 
 ''shall be sufficient to vest the fee to such parcels of land 
 as therein named, described or indicated, for public use 
 in such city, town or village, when incorporated, in trust 
 for the uses therein named, expressed or intended and 
 for no other use or purpose," gives the city a fee in the 
 street for street purposes only and every other beneficial 
 use remains in the dedicator and passes to the abutting 
 owner on the street when a sale is made, and such owners 
 may extract the minerals from the streets; 2 and this is 
 the rule laid down in other states under a statutory dedi- 
 cation. 3 So where the fee remains in the dedicator, and 
 passes on sale of the property to the purchaser, the pub- 
 lic acquires but a mere easement to travel over the land 
 used for streets and highways, and the title to the min- 
 
 1. Matthiesen & Hegeler Zinc Co. vs. City of La Salle, 117 111., 
 
 411. 
 
 2. Snoddy vs. Bolen, 122 Mo., 479; 25 S.W., 935. 
 
 3. Kimball vs. Kenosha, 4 Wis., 321; Milwaukee vs. Milwaukee 
 
 & B. R. Co., 7 Wis., 76; Schurmeier vs. St. Paul & P. Ry., 
 10 Minn., 82; 88 Am. Dec., 59. 
 
224 Reservation of Mineral. 
 
 erals remains in the abutting- owner 1 because so far as 
 ownership is involved, the title is the same as if no road 
 or street was on the land. * The owner of the fee has a 
 right to the use of a spring on the highway and the pub- 
 lic has no right thereto, 3 and such an owner may remove 
 the minerals, 4 and the stone and gravel, 6 and the only 
 restriction that the law imposes on the owner is that 
 such owner shall not do anything which will interfere 
 with the public in the use of the highway for travel. 6 A 
 city is liable for the value of stone taken from a street 
 by a person who was under a contract with a city to 
 build a sewer and part of the stone which was removed 
 was not necessary to the construction of the sewer and 
 the contractor received the stone as part of the compen- 
 sation for the building of the sewer, but that part of the 
 stone which was necessary to remove for the construc- 
 tion of the sewer the city was not liable. 7 So where a 
 contractor digs below the street grade and removes 
 stone, sand and gravel, the owner can maintain an ac- 
 tion for the value of the materials taken. 8 It is well 
 settled from these authorities that where the public has 
 only an easement, the owner retains title to the lands, 
 subject to the easement. 
 
 SEC. 4. THE OWNER OF LAND, WHEN DEDICATING 
 THE STREETS TO THE PUBLIC MAY RESERVE THE MIN- 
 ERALS IN THE STREET, THOUGH IP NO RESERVATION WAS 
 
 1. Good title vs. Alker, 1 Burr, 133; Lyman vs. Arnold, 5 Mason, 
 
 198. 
 
 2. Davaston vs. Payne, 2 H. Bl., 531; Reg. vs. Pratt, 4 El. and 
 
 Bl., 868; Reed vs. Leeds, 19 Conn., 188; Perley vs. Chand- 
 ler, 6 Mass., 464. 
 
 3. Old Town vs. Dooley, 81 111., 256. 
 
 4. Dubuquevs. Benson, 23 la., 248. 
 
 5. Robert vs. Sadler, 104 N. Y., 229; 10 N.E., 424. 
 
 6. Robert vs. Sadler, 104 N. Y., 229; Williams vs. Kennedy, 14 
 
 Barb., 629; Perley vs. Chandler, 6 Mass., 456; Winchester 
 vs. Capron, 63 N. H., 605; Old Town vs. Dooley, 81 111., 
 256. 
 
 7. Viliski vs. Minneapolis, 40 Minn., 304; 41 N.W., 1050. 
 
 8. Fisher vs. Rochester, 6 Lans., 225; Cuming vs. Pran<r, 24 
 
 Mich., 514. 
 
Sale of Abutting Lot Passes Title to Minerals. 225 
 
 MADE, THE MINERALS WOULD PASS TO THE PUBLIC A 
 SALE OP THE LOTS THEREAFTER WITHOUT A RESERVA- 
 TION, PASSES THE MINERALS. The owner of the land, in 
 making* the dedication to the public, may reserve the 
 minerals in and beneath the surface of the street, and 
 in such a case, the title of the minerals remains in the_ 
 owner, and the minerals can be removed and the public 
 have no cause to complain. 1 So where a mining- company 
 laid out a tract of land in city lots and dedicated the 
 streets and alleys to the public, but expressly reserved 
 the minerals in the streets and then sold some of the lots 
 and the purchasers mined and took away the minerals, 
 under the claim that there was no reservation of the 
 minerals in the deeds made to them; and that the deed of 
 the lots carried the fee to the center of the street which 
 was the limits from which the minerals were taken, the 
 court sustained the contention of the grantee. 2 So where 
 the owner of land made a plat of the lots and blocks 
 and streets and made a dedication of the streets to the 
 public, in conformity with the statute, except that the 
 owner reserved the minerals and after such dedication, 
 the owner made a conveyance of the lots by numbers, 
 and made no mention of the minerals in the streets, the 
 minerals were held to pass with the conveyance of the 
 lots, and the conveyance of the lots carried the fee to 
 the center of the street. 3 
 
 SEC. 5. RESERVATION OP THE MINERALS GIVES THE 
 GRANTOR TITLE TO THEM, BUT WHERE A RESTRICTION 
 ONLY is IMPOSED, THE TITLE PASSES A RESERVATION 
 OP THE OIL AND GAS GIVES THE OWNER THEREOF THE 
 RIGHT TO USE AS MUCH LAND AS is NECESSARY FOR 
 THEIR EXTRACTION AND REMOVAL. A reservation in a 
 lease providing- that no wells shall be drilled on the tract 
 reserved without the written consent of the lessor, gives 
 the lessor no right to drill wells but simply restricts the 
 lessee's rig-hts therein so far as to prohibit him from 
 
 1. Dubuque vs. Benson, 23 Iowa, 248. 
 
 2. Tousley vs. Galena Min. & Smelt. Co., 24 Kan., 328. 
 
 3. Snoddy vs. Bolen, 122 Mo., 479; 25 S.W., 935. 
 
226 Reservation of Minerals Gives Grantor Title to Them. 
 
 sinking wells without the written consent of the lessor; 1 
 but, under a lease which reserved a designated tract, 
 "upon which no wells shall be drilled" it gives the lessees 
 no right to the oil or gas in the lands reserved; and the 
 lessor is free to operate on the tract or lease it to others. 2 
 Since the reservation of oil or gas or other minerals is 
 held to be an actual grant thereof, 3 the owner of the 
 mineral rights has a right to use so much of the surface 
 as may be necessary to extract the minerals from below 
 the surface; 4 and the right is not lost simply because the 
 instrument specified certain other rights which the owner 
 of the minerals may have. 6 So, where in a conveyance 
 the grantor reserved the right to bore for petroleum, the 
 owner, his heirs and assigns have a right to put down 
 wells to prospect for oil, even though there are no indi- 
 cations of oil on the surface; 6 but, under a reservation 
 of the oil or other minerals, the land cannot be used for 
 the development of other lands; and, under the reserva- 
 tion of the oil rights, no machinery used on other lands 
 can be stored on the lands, in which the oil rights are 
 reserved; nor can oil taken from other lands be stored 
 or transported over the lands burdened by the reserva- 
 tion of the oil therein. 7 So where a grantor reserves only 
 the minerals, the grantee has the fee simple title to the 
 surface of the land, burdened with the right of the 
 grantor to use so much of the surface to take the min- 
 erals, hence the grantor's rights to the surface are con- 
 fined to the ground necessarily occupied for mining pur- 
 poses on the particular land and the removal of the 
 minerals therefrom. 8 
 
 1. Brown vs. Spillman, 155 U. S., 665. 
 
 2. Guffey vs. Deeds, 9 Pa. Co. Ct., 449. 
 
 3. Marvin vs. Brewster Min. Co., 55 N. Y., 538; Wardell vs. 
 
 Watson, 93 Mo., 107; 5 S. W., 605. 
 
 4. Wardell vs. Watson, 93 Mo., 107; 5 S.W., 605. 
 
 5. Williams vs. Gibson, 84 Ala., 228; 4 So., 350. 
 
 6. Dietz vs. Mission Transfer Co., 95 Cal., 92; 30 Pac., 380. 
 
 7. Dietz vs. Mission Transfer Co., 95 Cal., 92; 30 Pac., 380; 
 
 Dietz vs. Mission Transfer Co. (Cal.), 25 Pac., 423. 
 
 8. Dietz vs. Mission Transfer Co. (Cal.), 25 Pac., 423. 
 
When Title to Mineral Will Pass. 227 
 
 SEC. 6. TITLE TO MINERALS WILL VEST IN A PUR- 
 CHASER OF GOVERNMENT LAND, ALTHOUGH THE LANDS 
 WERE ACQUIRED UNDER ANOTHER CLAIM THAN A MIN- 
 ERAL CLAIM DISCOVERY THEREAFTER WILL NOT AFFECT 
 THE TITLE OF THE PURCHASER. Where the government 
 of the United States excepts mineral lands from settle- 
 ment, under other statutes providing" for the settlement 
 of farming lands, or under town site plats, and the lands 
 are sold as farming lands or under a town site plat, the 
 mere fact that the lands were mineral lands, at the 
 time such lands were taken and patented under the 
 homestead law, for farming purposes, or under a town 
 site plat, and that at the time of the acquisition of the 
 lands, the lands were mineral lands, will not defeat the 
 title of the person who acquired the lands, so long as 
 such lands were not known to possess their chief value 
 from the minerals contained in the lands, at the time of 
 the settlement of the lands by the settler, and though 
 they are known to possess minerals, when the patent was 
 issued. 1 So where a town site patent was issued for 
 lands, the fee will pass though valuable minerals are 
 afterwards discovered on the land; 2 and when a patent 
 was issued for lots, under a town site claim, and minerals 
 were afterwards discovered on the lot, a subsequent pat- 
 ent of the lots as mining land is void. 3 If the lands were 
 not known to be mineral lands at the time, when the 
 grant became effective between the occupant and the 
 government, the title will pass from the government. 4 
 
 SEC. 7. DOCTRINE OF THE CASES OF SCHENDELL vs. 
 ROGAN, 63 S. W. (TEX.), 1001, AND CHAPPELL vs. ROGAN, 
 63 S. W. (TEX.), 1007, AS TO RESERVATION IN PUBLIC 
 LANDS. The Schendell case was an original proceeding 
 commenced in the supreme court of the state of Texas 
 against the land commissioner of that state to compel 
 
 1. Dower vs. Richards, 151 U. S., 658. 
 
 2. McCormick vs. Button, 97 Cal., 373; 32 Pac., 444. 
 
 3. Davis vs. Wiebold, 139 U. S., 507. 
 
 4. Francener vs. Newhouse, 43 Fed. E., 236; Northern Pac. Ry. 
 
 vs. Walker, 47 Fed. R., 681. 
 
228 Case of Schendell vs. Eogan. 
 
 him to issue a patent to certain lands to an assignee of 
 the original settler. The land was, at the time it was ed- 
 tered in 1896, a part of the public domain set apart by the 
 state for the benefit of the public schools, the university 
 and asylums, and the petition set forth one Armstrong 
 settled upon the land in good faith, and that he acquired 
 the land under a certain act of the legislature passed 
 in 1895, and that the commissioner of the land office 
 awarded the lands to Armstrong, and that Armstrong 
 and his assignee were shown by the petition to have 
 complied with all the requirements of the law as to per- 
 fecting the claim and entitling them to a patent, but the 
 petitioner did not allege in his petition that the original 
 settler or the petitioner made affidavit that "there is not, 
 to the best of his knowledge and belief, any of the other 
 minerals embraced in this title thereon," and for failure to 
 make the affidavit the commissioner refused to issue a 
 patent to the assignee of the settler for no title was ac- 
 quired by the said Armstrong or his assignee. 
 
 The constitution of the state of Texas, and the laws 
 passed by the legislature, divided the lands belonging 
 to the state as free school lands, asylum lands and uni- 
 versity lands, and all other lands as public lands. A law 
 was passed by the legislature in 1883 which provided for 
 the sale and leasing of the free school lands, university 
 lands and asylum lands, and constituted the governor, 
 attorney general, comptroller, treasurer and land com- 
 missioner as a board to sell and lease the lands, and the 
 law required that the lands be classified as "agriculture, 
 pasture and timber lands," and the same session of the 
 legislature passed another act reserving the minerals in 
 the free school, university and asylum lands and placed 
 them in control in the same tyoard. In 1887 another act was 
 passed providing for the sale and leasing of these lands, 
 and giving the land commissioner full power to execute 
 the law, and required the commissioner to classify the 
 lands as agriculture, pasture and timber lands, and to 
 place a value on each section and sell and lease the land 
 as soon as possible, and sales should be made to actual 
 
Reservation of Minerals by State. 229 
 
 settlers, who were required to make an affidavit stating 
 "that he desires to purchase the land as a home, and 
 that he has in good faith settled thereon,'' etc., and this 
 law was held to have repealed both acts of 1883. In 1889 
 another act with reference to minerals in these lands 
 was passed. The law required the commissioner of the 
 land office to have a survey and plat made of the lands 
 unsold, and it was made the duty of the geological and 
 mineralogical survey to examine the lands and designate 
 the lands which were mineral, and all lands containing 
 minerals were reserved from sale under the act. In 1895 
 the legislature passed another act with reference to free 
 school lands, university lands and asylum lands. The 
 act required the commissioner, who had full power and 
 authority under the act, to classify the lands as agricul- 
 ture, pasture and timber lands. The act provided for 
 the sale of these lands, and the land commissioner was 
 required to make all sales, and was authorized to pre- 
 scribe all regulations. The act required purchasers to 
 live on the land three years before the date of their pur- 
 chase, except where otherwise provided, and were to 
 make proper proof, under oath, of such residence within 
 two years after the three years' residence had expired, 
 and the proof thus made was required to be corroborated 
 by three witnesses, and the application of purchase must 
 state that the settler desired the land as a home, and has 
 in good faith settled thereon, except where otherwise 
 provided, etc. 
 
 In 1895 at the same session of the legislature passed 
 an act reserving from sale all lands containing minerals, 
 and was as follows: "All public school, university and 
 asylum lands containing valuable mineral deposits are 
 hereby reserved from sale or other disposition except as 
 herein provided, and are declared free and open to ex- 
 ploration and purchase under the regulations prescribed 
 by law," etc. The commissioner was required to make a 
 plat of these lands unsold and other officers were required 
 to examine the land and "designate such tracts" as are 
 "apparently mineral bearing as mineral lands," and if 
 
230 Construction of Various Statutes. 
 
 lands containing such minerals are not designated as 
 such when classified may be so classified thereafter and 
 the commissioner was required to classify the mineral 
 lands into mining districts. 
 
 Article 3498?i provided: "Whenever any application 
 shall be made to buy or obtain title to any lands em- 
 braced in article 3498a, except when the application is 
 made under this title, the applicant shall make oath that 
 there is not, to the best of his knowledge and belief, any 
 of the minerals embraced in his title thereon, and when 
 the commissioner has any doubt in relation to this mat- 
 ter he shall forbear action until he is satisfied. Any such 
 sale or disposition of the said lands shall be understood 
 to be with the reservation of the minerals thereon, to be 
 subjected to location as herein provided." Article 3498a 
 was the first section of the act which provided for the 
 reservation of the minerals and part of the same act as 
 3498n. 
 
 The court, in construing these various acts, held: 
 First That the law required the commissioner to 
 classify lands as agriculture, pasture and timber lands, 
 and that no class as mineral lands was recognized by 
 law, but such as had been classified as agriculture, pas- 
 ture or timber lands "that were found to be apparently 
 mineral bearing," were required to be designated as 
 "mineral lands." 
 
 Second The state adopted a policy of selling the 
 lands as rapidly as possible to actual settlers so that the 
 state would have a population made up of home owners, 
 and at the same time to furnish a present support to the 
 institutions intended to be benefited by the lands. To 
 accomplish the purpose of a rapid sale the commissioner 
 was given enlarged powers, among them a classification 
 of the land, and the action of the commissioner was not 
 subject to revision, and when the commissioner offered 
 the land to Armstrong, classified as agriculture land, the 
 commissioner's act was binding on the state. (Citing 
 Steel v. Smelting Co. 106 U. S., 450.) 
 
When Entire Estate Passes. 231 
 
 Third Articles 3498a and 3598n were not intended 
 to operate upon lands "which had not been found to con- 
 tain valuable mineral deposits and were not apparently 
 mineral lands;" and as the classification was provided 
 by the state and the same officer had charge of all the 
 lands there was no intention "to have a secret reserva^ 
 tion of that which was not known." (Citing- Davis v. 
 Wtebold, 139 U. S., 516.) 
 
 Fourth The affidavit provided for in article 3498n 
 of the act which reserved the minerals did not apply to 
 lands classified and sold as agricultural lands and not 
 known to contain minerals. The affidavit required in 
 that article applied only in cases where lands were desig- 
 nated as mineral lands, and in such an event an actual 
 settler who may believe that the lands do not contain 
 minerals could make an affidavit to that effect and file 
 his claim under the law applicable to the settlement of 
 lands classified as agriculture, pasture or timber lands, 
 and if the commisssioner should award the land to the 
 settler the latter would take the land subject to the res- 
 ervation to the minerals, but when the lands were never 
 classed as mineral lands the settler took his title free 
 from any reservations. 
 
 Fifth That two acts passed by the same session of 
 the legislature must be construed together when both 
 relate to the same subject matter, and a construction 
 must be given which gives full force and effect to both 
 acts and the court will look to the construction given to 
 the acts by the officers who had charge of the execution 
 of both acts, especially when various acts of the legis- 
 lature recognized the construction placed on the law by 
 such officers. 
 
 The court when speaking of the contention of the 
 land commissioner said: ' 'The interpretation contended 
 for by the respondent would render void all grants of 
 public school, university and asylum lands which have 
 been made since 1889, and under the most favorable 
 view, would convert these grants from fee simple, abso- 
 lute title into titles subject to the claims of the state for 
 
232 Oil Claim in State Lands. 
 
 all mineral that might be found in them. The inclosures 
 of these men who have settled upon the land would be 
 liable to the intrusion of speculators and prospectors, 
 with the right to dig ditches, sink shafts and bore wells 
 for the purpose of ascertaining whether or not minerals 
 are*contained therein. No provisions are made for pro- 
 tecting the rights of the state's vendees, nor rules regu- 
 lating the operation of seekers after minerals, but the 
 unqualified right is given to explore the lands without 
 regard to' the rights of others, which shows that it was 
 not intended to apply to lands which the state has sold." 
 The purchaser was held not required to make the affida- 
 vit and the court ordered the commissioner to issue the 
 patent. 
 
 The case of Chappel v. Rogan was where the land was 
 taken up about 1895 as pasture lands and all the require- 
 ments of the law were fulfilled excepting that no affida- 
 vit was made as was required under article 3498n of the 
 laws of 1895 which reserved the minerals in the free 
 school, university and asylum lands. The lands were 
 taken up by one Spark and in 1901 one Chappel claimed 
 to have discovered indications of oil, applied to the com- 
 missioner of the public lands under the laws of 1895 to 
 prospect on the land, but the commissioner refused the 
 permit, so an original action was brought in the Supreme 
 Court to compel the commissioner to grant the permit. 
 The court sustained the commissioner and held that the 
 settler acquired the land free from the claims of the 
 state and the rules laid down in the case of Schendell v. 
 Rogan applied. 
 
 SEC. 8. AN OIL CLAIM ON GOVERNMENT LAND MUST 
 BE LOCATED, MARKED AND RECORDED TO GIVE GOOD 
 TITLE TO THE CLAIM. The location of a mining claim 
 under the laws of the United States depend upon three 
 essential requirements: (1) Discovery, (2) marking of the 
 boundaries, (3) a record. 1 So, under a provision of the 
 United States statutes that "no location of a mining 
 
 1. McShanevs. Kenkle,18Mont.,208; 44Pac.,979;33L.R.A., 851. 
 
Oil Claims on Government Land. 233 
 
 claim shall be made until the discovery of the vein or 
 lode within the limits of the vein located," the discovery 
 and location may be made by any person who is a citi- 
 zen of the United States; and the business or calling of 
 the person is of no consequence; and the location is valid; 
 if the mineral bearing 1 rock is in place; and contains suffi- 
 cient precious metal to warrant the locator to spend his 
 time and his money on the claim with the hope of being 
 brought to deposits of a greater commercial value; 1 but 
 the mineral bearing rock must be discovered within the 
 limit of a claim not taken; and "known" veins or lodes 
 must be ascertained and the quantity must be so deter- 
 mined as would justify the working of such veins or 
 lodes. 2 The location of the claim must also be distinctly 
 marked on the ground so that the location may be easily 
 traced; 3 but setting stakes on each corner and one in the 
 center of each end, with notices posted thereon, is a suffi- 
 cient marking. 4 Any workings on the ground which can 
 be found with little effort together with a registration 
 of the notice, that the claim is located, is sufficient. 5 So 
 where there is a mound of dirt which was removed in the 
 prosecution of mining, it is notice of the location. 6 So 
 where an oil claim is located on public lands, the locator 
 must have actually ascertained that oil existed on the 
 lands; and the fact that the surface indications were 
 such, that oil might exist, is not sufficient; but the lo- 
 cator must know that oil existed; and a mere conclusion 
 that oil does exist, which is drawn from other facts, is 
 not a sufficient discovery, 7 since the mere fact that lode 
 or veins exist in adjacent lands is not a sufficient dis- 
 
 1. McShane vs. Kenkle, 18 Mont., 208; Book vs. Justice Min. 
 
 Co., 58 Fed. R., 106. 
 
 2. Montana C. R. Co. vs. Mi^eon, 68 Fed. R., 811; Michael vs. 
 
 Mills, 22 Colo., 439; 45 Pac., 429; Migeon vs. Montana C. 
 R. Co., 44 U. S. App.; United States vs. Iron Silver Min. 
 Co., 128 U. S., 673; Brownfield vs. Bier, 15 Mont., 403. 
 
 3. U. S. Rev. Statutes, Sect. 2324; Gird vs. Oil Co., 60 Fed. R., 60. 
 
 4. Howeth vs. Sullenger, 113 Gal., 547; 45 Pac., 841. 
 
 5. Noyes vs. Mantle, 127 U. S., 343. 
 
 6. Iron Silver Min. Co. vs. Mike, etc., 143 U. S., 394. 
 
 7. Nevada Sierra Oil Co. vs. Home Oil Co. , 98 Fed. Rep. (Cal. ) , 673. 
 
234 Jurisdiction of Equity Courts. 
 
 covery. 1 So, with the location of an oil claim, the fact 
 that oil is found in nearby territory is not sufficient, 8 but 
 where the locator of an oil claim is in possession, though 
 his title may be defective, another locator cannot acquire 
 any right, title or interest against such a claimant by 
 gaining possession by means of fraud. * The oil must not 
 only be known to exist, 4 but also where another person 
 discovers the oil, such a fact must be known to the lo- 
 cator; and such locator must step into the shoes of the 
 discoverer and adopt all his acts so a mere intruder can 
 not set up the rights which were acquired by another 
 locator. 5 
 
 SEC. 9. JURISDICTION OP COURTS OF EQUITY. A 
 person who files and selects lands as agricultural lands 
 has no claim to the land against the claims of persons 
 who have located oil placer claims on the land, and the 
 boundaries of the claims are definitely marked, and that 
 petroleum was discovered and there were productive 
 wells on the land and the locators are in open, peacable 
 and exclusive possession of the land and the claims of 
 the oil placer claims are older than the claim of the per- 
 son who files a claim to the land as agriculture land. 6 
 That the oil placer claim must be located and the oil 
 actually discovered is a condition precedent to the val- 
 idity of the claim. In this respect the court in a late 
 case said: "The great importance that the oil industry 
 hasjalready assumed in this state (Cal.), the enormous 
 value of oil producing lands and the consequent avidity 
 with which they are sought, coupled with the fact that 
 the present suit will serve as a precedent for others now 
 pending, has induced the court to take the case up out 
 of its order and to give the question presented careful 
 
 1. Sullivan vs. Iron Silver Min. Co., 143 U. S., 374. 
 
 2. Nevada Sierra Oil Co. vs. Home Oil Co., 98 Fed. Rep., 673. 
 
 3. Nevada Sierra Oil Co. vs. Home Oil Co., 98 Fed. R., 673. 
 
 4. Nevada Sierra Oil Co. vs. Miller, 97 Fed. R., 681. 
 
 5. Nevada Sierra Oil Co. vs. Home Oil Co., 98 Fed. R., 673. 
 
 6. Cosmos Exploration Co. vs. Gray Eagle Oil Co., 104 Fed. R., 
 
 20; Pacific Land & Improvement Co. vs. Elwood Oil Co., 
 104 (C. C.),20. 
 
When is a Discovery of Oil Made. 235 
 
 consideration, to the end that the law may be speedily 
 settled and the way indicated by which title to such 
 lands may be acquired and the important industry re- 
 ferred to encouraged and developed. In Gird v. Oil Co., 
 60 Fed. R., 530-32, this court pointed out that the gov- 
 ernment title to oil bearing- lands can only be acquired^ 
 under existing laws, pursuant to the provision of the 
 mining laws relating to placer claims. And in the very 
 recent case of Nevada- Sierra Oil Co. v. Home Oil Co., 98 
 Fed. R., 673, it was here decided, as it has been many 
 times before by other courts, as well as by the land de- 
 partment of the government, that mere indications, how- 
 ever strong, are not sufficient to answer the requirements 
 of the statute of the United States relating to placer as 
 well as load claims, which requires, as one of the essen- 
 tial conditions to the making of a valid location of un- 
 appropriated public lands of the United States under 
 mining laws, a discovery of minerals within the claim. 
 That decision seemed to have occasioned surprise among 
 those seeking to acquire from the government lands sup- 
 posed to contain oil, although it was, as shown in the 
 opinion delivered at the time, in strict accord with the 
 provision of the statute. When no discovery of oil or 
 minerals have been made the location is of no validity 
 and is open to location by others." 1 The rule as thus laid 
 down was approved in later cases. 8 So where a person 
 had made a selection of land in place of land within a 
 certain reservation, and the selection was made as agri- 
 culture land, the person who selected the land acquired 
 an equitable title to the land even though the govern- 
 ment had not yet issued a patent where such person com- 
 plied with all the requirements of the law, the court 
 will grant an injunction against persons who invade the 
 land and extract from the land petroleum which had 
 been discovered after the selection had been made, and 
 
 1. Olive Land & Dev. Co. vs. Olmstead, 103 Fed. R.,-572. 
 
 2. Cosmos Exploration Co. vs. Gray Eagle Oil Co., 104 Fed. R., 
 
 20; Pacific Land & Improvement Co. vs. Elwood Oil Co., 
 104 Fed. R.,20. 
 
236 When a Settler Acquires no Title to Minerals. 
 
 the injunction will be continued until the land depart- 
 ment will determine whether or not the land will be 
 awarded to the settler as agriculture land. The settler's 
 right to the land as agriculture land will not be barred, 
 for the reason that the land was located where oil had 
 been produced. 1 A suit in equity to quiet title and for 
 an injunction and a receiver will not lie where a person 
 who had acquired a patent to land within a forest reser- 
 vation g'ave up his claim to such land and selected land 
 which was most valuable for mineral purposes, as agri- 
 culture land, and the answer to the bill of complaint set 
 up that the defendants discovered on the land sands and 
 shale containing a residuum of petroleum and bituminous 
 matter and a strata of oil bearing sands, and in a quan- 
 tity as would lead any practical miner to make further 
 development thereof, and did lead them to do so, and 
 that the location was marked and staked, and that large 
 quantities of oil were produced from wells on the land, 
 and that the locators had been in open and peaceable pos- 
 session of the land for some time previous to the selec- 
 tion made by the complainant. 2 So where an answer sets 
 up that the parties defendant had located oil placer 
 claims and produced oil and was in possession at the 
 time the selection was made, and that the land was hig-h 
 and dry and unfit for agriculture purposes, and that oil 
 was produced from the lands, and the answer is sworn 
 to and is supported by affidavits, and the affidavit when 
 the selection was made by the settler appears to be un- 
 true, a court of equity will not grant an injunction and 
 appoint a receiver pending litigation. 8 So where a selec- 
 tion was made by a settler of oil producing lands as agri- 
 culture lands and the locators are in possession developing 
 the lands for the production of oil, and they file a protest 
 with the land department against the selection made by 
 the settler and the protest is not disposed of by the gov- 
 
 1. Olive Land & Devel. Co. vs. Olmstead, 103 Fed. R., 568. 
 
 2. Cosmos Exploration Co. vs. Gray Eagle Oil Co., 104 Fed. R., 20. 
 
 3. Pacific Land & Improvement Co. vs. Elwood Oil Co., 104 Fed. 
 
 R.,20. 
 
Rights of Owner of Base Fee. 237 
 
 eminent, a court of equity has no jurisdiction to settle 
 the claims of the parties while the protest is pending 1 . 1 
 
 SEC. 10. RIGHTS OF EXECUTORY DEVISEES TO CON- 
 TROL THE ACTS OF THE OWNER OF A BASE FEE. A COUrt 
 
 of equity will not interfere to stay waste when the owner 
 of a base fee had leased the lands for the production of 
 minerals at the suit of the executory devisees. In this 
 case a father devised a certain tract of land to three 
 sons, and a clause in the will provided that the land 
 should go to the survivor of the three sons, and in case 
 any or all of the three sons should die without issue then 
 the land was to go to certain persons named. At the 
 time the suit was filed two of the sons had died and the 
 survivor was at the time about forty years of age and 
 was in good health, both mentally and physically. There 
 was no impediment against him having issue before his 
 death, and as he was the owner of the minerals below 
 the surface, as well as the grass upon the surface, and 
 as it was to the interest of the public that the mineral 
 resources should be developed, the court, under these 
 circumstances, would not enjoin waste. 2 In Georgia the 
 court held that the owner of a determinable fee had ab- 
 solute control over the corpus of the land and was "ex- 
 empt from the supervision of chancery in respect to 
 waste." 8 
 
 So where a will was construed to give a life estate to 
 four children, two sons and two daughters, and the will 
 provided that if one or both of the daughters should 
 marry, the daughter who married should share equally 
 in the lands in fee with his married children, and a cer- 
 tain sale and division were provided for in the will, which 
 sale and division, as construed by the court, could be 
 made whenever both sons should die or both daughters 
 
 1. Cosmos Exploration Co. vs. Gray Eagle Oil Co., 104 Fed. R., 
 
 20; Pacific Land & Improveraeat Co. vs. Elwood Oil Co., 
 104 Fed. R., 20; Savage vs. Worsham, 104 Fed. R., 18. 
 
 2. Peterson vs. Gannon, 193 111., 372. 
 
 3. Matthews vs. Hudson, 81 Ga., 120. 
 
238 Eight of Life Tenant. 
 
 should be dead or married, and the sale was to be on a 
 year's credit, and the proceeds of the sale was to be di- 
 vided between "all his lawful heirs," the fee was held 
 not to vest until these contingencies happened, and that 
 if any of the daughters, who were both single, should 
 marry, although both were at the time over eighty years 
 of age, the daughter would take an undivided interest in 
 the fee, and the daughters were not life tenants under 
 the statute of that state, consequently were not impeach- 
 able for waste. The tenants were held not liable for the 
 value of timber cut and disposed of at the time the action 
 was brought, but the court granted the petitioner equi- 
 table relief and enjoined the tenants from further acts 
 of waste. * A late case arose in the state of Iowa where 
 a widow claimed a certain interest in her deceased hus- 
 band's lands in fee, and the other interest was in her 
 children, and all held as tenants in common. The widow 
 made a lease of the land for the purpose of mining coal, 
 and an assignee of the lessee entered and took from the 
 land large quantities of coal for which the assignee of 
 the lease paid the widow a certain royalty in full of all 
 claims for the coal mined. No mines were open at the 
 time the widow made the lease, although coal had been 
 taken from the land some fifteen years before the death 
 of the husband, but the place where the coal was taken 
 filled in, and also the new mine was opened in a different 
 part of the land and a new vein of coal was opened. An 
 action was brought after the death of the widow against 
 the coal company for the value of the coal taken during 
 the life of the widow. The wife was held to have no 
 right to dispose of a part of the whole property, and she 
 had no right to lease the land for the purpose of mining 
 coal when she held only an undivided interest, because, 
 until a co-tenant's share is allotted to him in severality 
 a co-tenant has no right to sell or use coal found under 
 the entire tract when the vein has not theretofore been 
 opened and the mines are not opened when they were com- 
 
 1. Forabow vs. Green, 108 N. C., 339; 12 S. E., 1003. 
 
Right of Statutory Life Tenants to Take Minerals. 239 
 
 pletely abandoned before the estate in co-tenancy vested 
 or a new vein is opened. * 
 
 SEC. 11. RIGHT OF STATUTORY LIFE TENANTS TO 
 TAKE MINERALS. In many of the states a statutory life 
 estate in the lands of the husband on his death is given 
 to the wife, or in case the wife dies, it is given to tHe~ 
 husband, so the question may arise as to whether the life 
 tenant would be entitled to take the minerals from the 
 lands during the pendency of the life estate. By the 
 ancient common law only three persons were denied the 
 right to commit acts of waste, namely, guardian in chiv- 
 alry, tenant in dower, and tenant by the curtesy. All 
 other tenancies could commit waste because these estates 
 were created by the acts of the parties, and the person 
 who created such a tenancy could have provided against 
 waste if he desired, and if he did not, it was his own 
 fault. 2 In the three instances above named the law itself 
 created the tenancies, hence the law gave a remedy 
 against such tenants for acts of waste. To remedy the 
 defect of the common law a statute known as the "Stat- 
 ute of Marlbridge, " was passed in 1267 A.D., and said 
 act provided: "Also all fermors, during their terms, 
 shall not make waste, sale, nor exile of house, woods or 
 men, nor of anything belonging to the tenements; which 
 thing, if they do, and thereof be convict, they shall yield 
 full damage and punished amerciament grievously. " In 
 1278 the "Statute of Gloucester" was passed, which pro- 
 vided: "That a man from henceforth shall have a writ 
 of waste in the chancery against him that holdeth by 
 the law of England, or otherwise for term for life or for 
 term of years or a woman in dower; and he which shall 
 be attained of waste shall lose the thing that he hath 
 wasted, and moreover shall recompense thrice so much 
 as the waste shall be taxed at. '' The question to be con- 
 sidered in this section is whether a life tenant is liable 
 for waste where the estate is created by statute. In 
 Michigan a statute gave the wife of a deceased hus- 
 
 1. Hook vs. Garfield Coal Co., la., ; 83 N. W., 963. 
 
 2. Sampson vs. Bayley, 21R.L, 174-78; 42 Atl., 712; 44L.R.A.,711. 
 
240 May Not Take the Minerals. 
 
 band the use during 1 life of one-third of all the lands 
 whereof her husband was seized of an estate of inherit- 
 ance at any time during marriage unless she was law- 
 fully barred from dower. The grant to the widow was 
 held to be created by operation of law, and that the 
 widow was entitled to the use of one-third of the product 
 from mines, whether the mines were open or not. The 
 mines were not open at the time of the death of the hus- 
 band, and the only use that could be made of the land 
 was that of mining, and as there was but one mode of 
 enjoyment of the land, but one source of profit, the 
 widow was entitled to the use of the land when mining 
 was the only use to which the land could be put. 1 A ten- 
 ant for life created by statute has been held liable for 
 waste. Thus where a man died owning real estate, and 
 the widow was entitled to the use of the land for life as 
 her homestead given her by the statute, the widow was 
 held bound to pay the taxes and keep the houses in re- 
 pair. The court there said: "The law is too well settled 
 to need discussion that a tenant for life of real estate is 
 compelled to pay taxes and the expense of repairs out 
 of the rents and profits, whether such life estate comes 
 by will, conveyance or operation of law, unless the life 
 tenant voluntarily pays them out of other funds. If the 
 life tenant permits the premises to decay for the want of 
 repair, and neglects to pay the taxes, subjecting the es- 
 tate to sale therefor, it must diminish the value of the 
 estate, and thus there is a resulting lasting damage to 
 the freehold or inheritance, and this constitutes waste. " 
 The court, under these circumstances, appointed a re- 
 ceiver to collect the rents and profits, so that such rents 
 and profits could be applied to the payment of accrued 
 taxes as well as future taxes, and to the making of re- 
 pairs. * Under the Georgia code a widow was given a 
 life estate in her husband's lands, and she cut timber 
 
 1. Seager vs. McCabe, 92 Mich., 186; 52 N. W., 299; 16 L. R. A., 
 
 247. 
 
 2. St. Paul Trust Co. vs. Mintzer, 65 Minn., 124; 67 N. W., 657; 
 
 32 L. R. A., 756. 
 
Waste by Statutory Life Tenant. 241 
 
 from the lands, and the cutting 1 of the timber was found 
 to be a permanent injury to the estate of the remainder- 
 men, the widow was held liable for waste under a stat- 
 ute of the state which provided: "The tenant for life is 
 entitled to the full use and enjoyment of the property, 
 so that in such use he exercises the ordinary care of-a 
 prudent man for its preservation and protection, and 
 commits no acts tending" to the permanent injury of the 
 person entitled to the remainder on reversion." 1 
 
 Another case arose in Wisconsin where the wife was 
 given a life estate in certain lands of her husband and 
 the estate so given was purely statutory. The wife was 
 charged with acts of waste in a bill filed by the re- 
 maindermen. The court considered the case upon the 
 ground that the widow would be liable for waste if her 
 acts were a permanent injury to the freehold. 8 So in a 
 later case where the life estate in the widow was assigned 
 and sold to a third person the liability of a life tenant 
 created by statute was admitted, the assignee in the 
 latter case taking the same rights as the widow took. 8 
 The statute of Nebraska gives to the widow a life estate 
 in all the lands owned by the husband at the time of his 
 death. The widow cut down trees and sold them and 
 applied the money to the payment for land purchased in 
 her own name and for her own benefit, and to the pay- 
 ment of taxes assessed on the land in which she had the 
 life estate. The widow was held liable for waste and 
 was required to account for the value of the trees sev- 
 ered from the freehold and was enjoined from the com- 
 mission of further acts of waste. 4 
 
 The rule applicable to oil and gas and other minerals 
 is that oil and gas are part of the realty and any sale or 
 disposition of the gas by lease is a sale or disposition of 
 the land itself. 5 Waste has been defined "to be any act 
 
 1. Smith vs. Smith, 105 Ga., 106; 31 S. W., 135. 
 
 2. Wilkinson vs. Wilkinson, 59 Wis., 557; 18 N. W., 528. 
 
 3. Helms vs. Pabst Brewing Co., 104 Wis., 7; 79 N.W., 738. 
 
 4. Disher vs. Disher, 45 Neb., 100; 63 N. W., 368. 
 
 5. Sects. 7 and 8, Pages 8 and 9; Hook vs. Garfield Coal Co., 
 
 la., ; 83 N. W., 963. 
 
242 Waste by Statutory Life Tenant. 
 
 or omission of duty by a tenant of land which does a 
 lasting* injury to the freehold, tends to the permanent 
 loss of the owner of the fee, or to destroy or lessen the 
 value of the inheritance, or to destroy the identity of 
 the property, or impair the evidence of title." 1 Under 
 the authorities cited there is no doubt but that a life 
 tenant created by statute is subject to the same liabili- 
 ties for waste as any other tenant whose estate is less 
 than a freehold. The reason why a guardian in chivalry, 
 tenant in dower and a tenant by the courtesy were held 
 liable for waste by the ancient common law was that 
 these tenancies were created by the law itself which 
 therefore gave a remedy against them, 2 and the same 
 rule should apply when a statutory life estate is created 
 by operation of law. 
 
 1. Bandlow vs. Thieme, 53 Wis., 57; 9 N. W., 920. 
 
 2. Sampson vs. Bayley, 21 R. I., 174; 42 Atl., 712; 44 L. R. A., 
 
 711; Cooley Bl. Com., Bk. 2, Page 282. 
 
RATES AND SUPPLY OF GAS. 
 
 CHAPTER XVI. 
 
 SECTION 1. CITY MAY OWN GAS PLANTS HAS THE 
 POWER TO SUPPLY ITS INHABITANTS FOR PAY MAY 
 LEVY TAX TO CONSTRUCT PLANT OR ISSUE BONDS. A 
 city has the power and the right to own and control its 
 own gas works for the purpose of lighting" its streets. 1 
 To furnish gas to the city to light its streets or buildings 
 or to the inhabitants of a city for domestic use, is a busi- 
 ness of a public nature, and the instrumentalities by 
 which gas may be furnished are devoted to a public use, 
 or purpose, for which the taxing power may be constitu- 
 tionally exercised. 2 So a private corporation which owns 
 a natural gas well some distance from a city, may exer- 
 cise the right of eminent domain to reach a city for the 
 purpose of selling gas to consumers, because the corpo- 
 ration was devoting its property to a public use. 3 So a 
 city may levy taxes for the purpose of purchasing a nat- 
 ural gas well, where the gas from the well is to be sold 
 to private consumers of the city, since to supply gas to 
 the public is a public business and the property is used 
 for a public purpose, and taxes may be levied for that 
 purpose. 4 To supply the people of a city with gas is a 
 
 1. Wheeler vs. Philadelphia, 77 Pa., 338; Opinion of Justices, 150 
 
 Mass., 592; 24 N. E., 1084; 8 L. E. A., 487; State vs. Hamil- 
 ton, 47 Ohio St., 52; Linn vs. Burghers, 160 Pa., 511; Water 
 Co. vs. Village, 161 N.Y., 154. 
 
 2. State ex. rel. Atty. Gen. vs. City of Toledo, 47 Ohio St., 112; 
 
 Jacksonville Electric Light Co. vs. Jacksonville, 36 Fla., 
 229; Mitchell vs. Negaunee, 113 Mich., 359; 38 L. R. A., 
 15; 71 N. W., 646; Townsend Gas & E. Co. vs. Port Town- 
 send, 19 Wash., 407; 53 Pac., 651. 
 
 3. Bloomfield and R. Nat. Gas Light Co. vs. Richardson, 63 
 
 Barb., 437. 
 
 4. State ex. rel. Atty. Gen. vs. City of Toledo, 47 Ohio St., 112; 
 
 11 L. R. A. ,729. 
 
244 Supply of Gas. 
 
 public business, so where a city owns the plant and sup- 
 plies the gas to the people for pay, the rates must be 
 uniform to all who may purchase gas; and where the gas 
 trustees of a city undertake to furnish gas to manufac- 
 turers at a less rate than other consumers, such special 
 favors are unjust discriminations. 1 Where a city gives 
 a chartered gas company the exclusive privilege of sup- 
 plying gas to a city and the inhabitants of a city, the 
 city may own its own gas works and furnish itself with 
 gas necessary for consumption and the gas company can 
 not complain. 8 Cities and towns, however, have no power 
 to acquire and own gas works and furnish light for its 
 streets and the inhabitants of cities or towns without 
 the consent of the legislature, and the power cannot 
 be implied because the statute authorizes it to erect 
 and maintain street lamps to furnish light for the 
 streets. * 
 
 It has been held that a city has power to purchase 
 or erect a plant for the purpose of lighting the streets 
 and buildings belonging to a city, under a statute pro- 
 viding that a city shall have power to light streets, 
 alleys, or other public places with electric lights or other 
 form of light and to contract with any individual for 
 lighting such streets, etc., with electric light or other 
 form of light," and may issue bonds to pay for such plant 
 after erected. 4 And where a city charter authorized the 
 city to own and possess real and personal property to 
 the value of 1100,000 such city has the power to acquire 
 a plant to generate electric lights for the streets of the 
 city though the charter does not give the city power to 
 light its streets, as such power is implied. 6 And where 
 the city is given power to light its streets by plants of 
 
 1. Dalzell vs. Gas Light & Heat. Co., 5 Ohio C. C., 435. 
 
 2. Hamilton Gaslight & Coke Co. vs. Hamilton, 146 U. S., 
 
 258. 
 
 3. Spaulding- vs. Town of Peabody, 153 Mass., 129. 
 
 4. Rushville Gas Co. vs. Rushville, 121 Ind., 206; Crawfordsville 
 
 vs. Braden, 130 Ind., 149. 
 
 5. Mauldin vs. Greenville, 33 S. C., 1. 
 
Contract to Supply. 245 
 
 its own, such city has the implied power to furnish light 
 for private use. * 
 
 SEC. 2. CITY MAY MAKE A CONTRACT TO SUPPLY 
 THE CITY WITH GAS MAY IMPOSE CONDITIONS IN THE 
 ORDINANCE TO SUPPLY GAS FREE TO QUASI PUBLIC 
 PLACES OR TO THE CITY. Where a city enters into a con- . 
 tract with a gas company to furnish gas to light its 
 streets, it does so under its power to contract and not 
 under its power to legislate, and where such a contract is 
 within the power of the city to make, and not tainted 
 with fraud, the contract is as binding and subject to the 
 the same rules of construction as if made between two 
 individuals. 8 So it is within the power of a city to make 
 the best contract possible, or impose such restrictions 
 as it may see fit, and where the city gave a gas company 
 the right to lay pipes on the streets of a city, the ordi- 
 nance may provide that the company shall furnish gas 
 free to all public buildings and places of worship; 8 and 
 where the ordinance which gave the gas company a right 
 to lay its pipes on the street provided that "so long as 
 it shall have the exclusive right to use the streets and 
 alleys of a city for their pipes," it shall furnish gas free 
 to a city, and the city passed an ordinance giving another 
 company the right to use the streets for that purpose, 
 but required such company to have in operation a gas 
 well connected with pipes in operation within a year, the 
 latter company did not acquire any right to the streets 
 until the condition is fulfilled, and the first company 
 must continue to furnish gas free until such time. 4 A city 
 has the power to contract to pay a gas company so much 
 
 1. Crawfordsville vs. Braden, 121 Ind., 206; Thompson-Huston 
 
 El. Light Co. vs. Newton, 42 Fed. R., 723; Smith vs. Nash- 
 ville, 88 Tenn., 464; Citizens Gaslight Co. vs. Wakefield, 
 161 Mass., 432; 37 N. E., 444. 
 
 2. Indianapolis vs. Indianapolis Gas Light & Coke Co., 66 Ind., 
 
 396; Indianapolis vs. Consumers Gas Trust Co., 140 Ind. r 
 107. 
 
 3. Sewickley Sahool Dist. vs. Ohio Valley Gas. Co., 154 Pa., 539; 
 
 25Atl.,868. 
 
 4. Newark Gas & Fuel Co. vs. Newark, 7 Ohio N. P., 76. 
 
246 Construction of Ordinance as to Supply. 
 
 per lamp, and an additional sum per lamp as will be equal 
 to the taxes paid by the gas company, if the city is fully 
 paid by the services rendered and it is not void as a mode 
 to exempt from taxation which is prohibited. 1 Although 
 the city and the gas company do not fix the price to be 
 paid for gas for a certain year, the gas company can 
 recover the value of the gas consumed by the city since 
 it is within the power of the city to light its streets by 
 contract so it will be liable on an implied contract. 2 
 
 SEC. 3. CONSTRUCTION OF AN ORDINANCE TO FUR- 
 NISH GAS TO A CITY; CANNOT MAKE A CONTRACT TO 
 EXTEND BEYOND THE PERIOD FIXED BY LAW; BUT CAN 
 EXTEND THE PERIOD DURING WHICH GAS is TO BE FUR- 
 NISHED AFTER THE CONTRACT is MADE MAY COMPEL 
 THE COMPANY TO FURNISH THE GAS. Where an ordi- 
 nance provided that the gas company shall furnish gas 
 to a city at two-thirds the cost of the lowest average 
 price which private individuals must pay, in five cities 
 named in the ordinance, the price to be paid by the city 
 is to be found by adding the lowest cost for gas in the 
 five cities and then dividing the sum of the lowest cost 
 in the five cities by five, and then taking two-thirds of 
 the result obtained by such division and the quotient 
 will be the price to be paid for gas under the ordi- 
 nance. 8 So under an ordinance which provided that a 
 :gas company shall furnish "gas of a quality at least 
 equal to and at rates as favorable as that furnished" by 
 a gas company to another city, the price is to be deter- 
 mined by the price charged when the gas is used by the 
 other city and not at the price charged when the ordi- 
 nance was passed or contract was made with the gas 
 company, and if the other city reduces the price of gas, 
 the gas company cannot recover more than is charged 
 by the company at the reduced price, though less was 
 
 1. Carterville Imp., Gas & W. Co. vs. Carterville, 89 Ga., 683; 16 
 
 S. E., 25. 
 
 2. Harlam Gas Light Co. vs. New York, 32 N. Y., 309. 
 
 3. Cincinnati vs. Cincinnati Gas Light and Coke Co., 53 Ohio St., 
 
 249; 41 N. E.,239. 
 
Construction of Ordinance as to Supply. 247 
 
 charged than when the contract was made. In such a case 
 the rates vary as do the rates in the city or cities named 
 in the ordinance. ' 
 
 Under an ordinance which leaves it discretionary 
 with the city council as to the amount of gas which shall 
 be used, the city is not bound to take and pay for any 
 gas; 2 but where the ordinance provided that the city 
 shall take all the gas from a company which shall be 
 used in its offices, buildings, and street lamps, for ten 
 years, and provided that the city had the right to dis- 
 continue the use of gas lamps in the business district 
 after a certain time less than ten years and change to 
 electric light, in such business district; and also to dis- 
 continue the use of lamps in the other parts of the city 
 temporarily or permanently, the city under the ordi- 
 nance had no right to use other means to light the streets 
 in parts of the city outside the business district than 
 gas; and if the city chooses to light the streets, it must 
 take gas from the gas company to light them. 3 Where a 
 city reserved the right to substitute electricity for gas, 
 and a gas company had the right to furnish the elec- 
 tricity at a price to be agreed upon by both parties, and 
 the city determined upon a substitution and the gas com- 
 pany did not offer to furnish the electricity at a price 
 which it would reasonably be worth, the city has a right 
 to receive bids from other parties. 4 A gas company 
 which furnished gas to a city, under a statute, at so much 
 annually per lamp, burning from sunset to sunrise, and 
 the gas lamps to consume a certain amount of gas per 
 hour will be entitled to full compensation from the city, 
 allowed under the statute, though the full amount of gas 
 was not furnished as required by statute, and the lights 
 
 1. Decatur Gas Light Co. vs. City of Decatur, 120 111., 67; Wor- 
 
 cester Gaslight Co. vs. Worcester, 110 Mass., 353. 
 
 2. Gaslight & Coke Co. vs. New Albany, 156 Ind., 406; 59 N. E., 
 
 176. 
 
 3. Capital City Gaslight Co. vs. Des Moines, 93 la., 547; 61 N. 
 
 W., 1066. 
 
 4. Gaslight and Coke Co. vs. New Albany, 139 Ind., 660; 39 N. 
 
 E.,462. 
 
248 Sale of Franchise Not Valid. 
 
 were insufficient, where gas company's pipes were clogged 
 on account of the extreme cold weather and frosts accu- 
 mulating in the pipes. * Contracts by a city to light its 
 streets cannot extend beyond the period fixed by stat- 
 ute, and when a city makes such a contract beyond the 
 period allowed by statute, the same is void even for the 
 period for which the city could make the contract, and a 
 city may discontinue the use of lights furnished under 
 such a contract and will not be liable thereafter for dam- 
 ages for not using the same; 8 but where a city made a 
 contract with a gas company to furnish gas to a city and 
 before the gas company commenced to furnish the gas, 
 the town extended the period for which the company is to 
 furnish gas, the extension is not void against public pol- 
 icy, where the town is authorized by statute to light its 
 streets; and no fraud is implied in such a contract be- 
 cause the town cannot decrease the number of lamps 
 during the term the company is to furnish gas. 3 Where 
 a city makes a contract with a gas company to furnish 
 gas the city has a right to compel the gas company to 
 furnish the gas as provided in the contract. 4 Where 
 the state law gives the city the power to contract to 
 light the city for a period of ten years a contract to 
 light the city for ten years to commence in six months is 
 void because it extends beyond the period fixed by law. 5 
 
 SEC. 4. THE RIGHTS AND FRANCHISES OF A GAS 
 COMPANY CANNOT BE SOLD OR LEASED OR MANAGED 
 BY OTHER THAN THE GAS COMPANY WITHOUT THE CON- 
 SENT OF THE LEGISLATURE THE PLANT MAY BE MORT- 
 GAGED. Where a gas company is authorized by its char- 
 ter to engage in furnishing gas to the public and was 
 
 1. Re, Richmond Gas Co. (1893), 1 Q. B., 56. 
 
 2. Gas Light and Coke Co. of New Albany vs. City of New Al- 
 
 bany, 156 Ind., 406; 59 N. E., 176. 
 
 3. Parfit vs. Kings County Gas & Illuminating Co., 38 N. Y. 
 
 Supp. 466. 
 
 4. Toledo vs. Northwestern Ohio Nat. Gas Co., 5 Ohio C. C., 557; 
 
 Williams vs. Mutual Gas Co., 52 Mich., 499; 50 Am. Rep., 
 266. 
 
 5. City of Chillicothe vs. Logan, etc., Gas Co., 8 Ohio N. P., 88. 
 
Sale of Gas Plant Void. 249 
 
 granted the right to lay its pipes in the streets for that 
 purpose, the company is engaged in a business which re- 
 quires of it public services, ' and a gas company cannot 
 sell, or transfer the powers granted to it by the state 
 without express legislative authority. 8 So where a gas 
 company entered into a contract with another company, 
 not to lay pipes on the streets the contract is void, be- 
 cause it is disabling itself by contract from performing 
 a duty to the public; 8 nor can a gas company make the 
 convenience and service to the public by such contracts 
 subservient to its own private interests; 4 nor does a 
 statute authorizing the owner of the franchise to furnish 
 light permit it to lease its plant, hence a lease so made 
 is void as against public policy and no recovery can be 
 had against the lessee for a net sum agreed to be paid by 
 him to the lessor. 5 The rule does not apply to a mort- 
 gage on the property of a gas company engaging in 
 furnishing gas to the public, and, to be valid, no express 
 authority to mortgage need be given; 6 and where a stat- 
 ute, in general terms, gives corporations power to mort- 
 gage their property, a corporation which furnishes light 
 to a city may mortgage all its property and easements. 7 
 So where the owner of a gas plant is prohibited by stat- 
 ute, without the consent of the legislature, from selling 
 its franchises, or from making a lease of the plant, or 
 from making a contract with another party to operate 
 the plant, the statute is not violated by an agreement of 
 
 1. Louisville Gas Co. vs. Citizens Gas Co., 115 U. S., 683; Gibbs 
 
 vs. Consolidated Gas Co., 130 U. S., 396; City of St. Louis 
 vs. St. Louis Gas Light Co., 70 Mo., 69; Shephard vs. Mil- 
 waukee Gas Light Co., 6 Wis., 539. 
 
 2. Chicago Gas Light Co. vs. Peoples Gas Light Co., 121 111., 541. 
 
 3. City of St. Louis vs. St. Louis Gas Light Co., 70 Mo., 69; 
 
 Chicago Gas Light Co. vs. Peoples Gas Light Co., 121 111., 
 530. 
 
 4. Gibbs vs. Consolidated Gas Co., 130 U. S., 396. 
 
 5. Vesalia Gas & Electric Light Co. vs. Sims, 104 Cal., 326; 37 
 
 Pac., 1042; 42 Am. St. E., 105. 
 
 6. Hunt vs. Memphis Gas Co., 95 Tenn., 136; 31 S. W., 1006. 
 
 7. Pumphrey vs. Threadgill, 87 Tex., 573; 30 S. W., 356; 28 S. 
 
 W., 450. 
 
250 Lease of Gas Plant Owned by a City. 
 
 the owner of the gas plant with another, that the latter 
 would put in a new process and pay a certain dividend 
 to the owner, and that the owner of the process would 
 have the surplus after paying the dividend, and that the 
 owner of the plant would appoint a manager to be ap- 
 proved by the owner of the process as an agreement 
 leaves the plant in control of the owner. 1 
 
 SEC. 5. A CITY OWNING A GAS PLANT MAY LEASE 
 THE PLANT AND MAY STIPULATE IN THE LEASE TO DO OR 
 NOT TO DO CERTAIN THINGS So A GAS COMPANY MAY 
 SELL OR LEASE WHEN THE STATUTE PERMITS. Where 
 a city was the owner of a gas plant which supplied the 
 city with light and also its inhabitants, a lease of the 
 plant to another was upheld. The court held that the 
 gas works was owned by the city as a business proposi- 
 tion and there was no duty imposed by statute or common 
 law on a city to furnish lights for street purposes or to 
 private consumers, and to supply gas for those purposes 
 was not a municipal duty, so the city could transfer, by 
 lease, its gas plant to another, and in so doing did not 
 delegate its municipal duty. 2 And where the city is the 
 owner of a plant for the supply of gas to the city, such 
 city may sell the plant under a power given by statute 
 to sell and dispose of its real and other property; 3 and 
 where a city is authorized to provide its streets with 
 lights, the city may confer such a right on an independ- 
 ent company and give such company the use of its 
 streets, 4 and where the city is the owner of a gas plant, 
 the city may not only sell its plant, to a private com- 
 pany, but may bind the municipality, in the contract of 
 sale, to pay a greater sum per light as will be equal to 
 the amount of taxes paid by the purchasing company in 
 the event that the city had no right to exempt the com- 
 
 1. Maryborough Gas Light Co. vs. Neal, 166 Mass., 217; 44 N. E., 
 
 139. 
 
 2. Baily vs. Philadelphia, 184 Pa., 594; 39 Atl., 494; 39 L. R. A., 
 
 837. 
 
 3. Thompson vs. Neymer, 59 Ohio St., 486; 52 N. E., 1024. 
 
 4. Newport vs. Newport Light Co., 84 Ky., 166. 
 
Gas Trustees. 251 
 
 pany which purchased the plant from taxation. 1 So 
 where the city leased its plant and provided in the lease 
 that the city will not engage in the business again, such 
 a stipulation is valid and does not create a monopoly 
 where the city does not possess the right to give an ex- 
 clusive privilege, because that right is vested in the leg- 
 islature; 2 nor can the lease be objected to by a bond- 
 holder where the general credit of the city was pledged for 
 the bonds issued in paying for the plant; 3 but, where the 
 revenues of the plant are pledged for the payment of the 
 bonds, a sale or a lease would not be valid on an objec- 
 tion of a bond-holder. 4 And where a transfer is permitted 
 by law and there was a provision in the contract of sale 
 that the purchasing company shall fulfill its contract to 
 furnish gas to the extent that the same can be fulfilled 
 from the property and lines of the company, the purchas- 
 ing company is bound to make all necessary connection 
 for the furnishing of gas, where the connections are those 
 customarily made.- Where a gas company purchased 
 the franchise of another company which had the exclu- 
 sive franchise, the purchasing company acquires the ex- 
 clusive rights of that company, and another company can 
 not do business in the same city; 6 but such exclusive 
 rights do not extend to natural gas companies in Penn- 
 sylvania. 7 
 
 SEC. 6. GAS TRUSTEES OPERATING GAS PLANT 
 POWER TO PLEDGE CREDIT OF THE CITY OR TO EMPLOY 
 ONE OF THEIR OWN MEMBERS; POWER OF CITY COUNCIL 
 TO MAKE CONTRACT IN WHICH THE MEMBERS ARE INTER- 
 
 1. Frankford vs. Capital Gas & E. L. Co., 16 Ky. L. R., 780- 29 
 
 S. W.,855. 
 
 2. Baily vs. Philadelphia, 184 Pa., 594; 39 Atl., 494. 
 
 3. Baily vs. Philadelphia; 184 Pa., 594; 39 Atl., 494. 
 
 4. Western Sav. Fund Soc. vs. Philadelphia, 31 Pa., 175; 72 Am. 
 
 Dec., 730. 
 
 5. Pittsburg Carbon Co. vs. Philadelphia, 130 Pa., 428: 18 Atl 
 
 732. 
 
 6. South Side Gas Co. vs. Southern Ilium. Co., 18 Pa. Co. Ct., 
 
 529; People's Gas Co. vs. Hale, 94 Ills., App. 406. 
 
 7. Warren Gas Light Co. vs. Pennsylvania Gas Co., 161 Pa., 510; 
 
 29 Atl., 101. 
 
252 May Not be Interested in Contracts. 
 
 ESTED LEGALITY OF SUCH CONTRACTS. Trustees hav- 
 ing charge of gas plants operated in the interest of a 
 municipality have no power to pledge the credit of the 
 city for machinery used to operate the gas works, where 
 the statute provided that certain moneys shall be pro- 
 vided by the city council for that purpose, and funds 
 realized from the operation of the plant shall be used for 
 current expenses, but the trustees have a right to use the 
 funds realized from the operation of the plants for that 
 purpose, and their right is not restricted because of a 
 provision, in the statute, that no obligation shall be in- 
 curred, by any municipal officer, in behalf of a town, or 
 city, until a certificate is received from the auditor, that 
 the money is on hand to be used for the purpose contem- 
 plated. l Municipal trustees of the gas works, which are 
 owned by the city, have no power to employ one of their 
 own members to supervise the property of the city, in 
 the territory where the gas is obtained and where the 
 leased lands held by the city are located, where the stat- 
 ute provided that no municipal officer shall be interested 
 directly or indirectly in the work of a city under a pen- 
 alty. 2 And another section provided that such officer can 
 not be interested directly or indirectly until the expira- 
 tion of one year after the term of office had 'expired, so a 
 former trustee whose office just expired, cannot be ap- 
 pointed manager of such works until the expiration of 
 one year. 3 So where a member of the city council who 
 was a stockholder and also secretary and treasurer of 
 the corporation which contracted to light the streets, 
 such a contract is void where it is prohibited by law; 4 
 and such a contract may be canceled at the suit of any 
 tax-payer; 8 but when the contract is canceled, the city 
 must pay what the gas was worth not to exceed the con- 
 tract price. 6 The same rules and restriction apply to 
 
 1. Kerr vs. Belfontaine, 59 Ohio St., 446; 52 N. E., 1024. 
 
 2. Findlay vs. Parker, 17 Ohio C. C., 294. 
 
 3. Findlay vs. Parker, 17 Ohio C. C., 294. 
 
 4. Grand Island Gas Co. vs. West, 28 Neb., 852; 45 N.W., 242. 
 
 5. Grand Island Gas Co. vs. West, 28 Neb., 852; 45 N.W., 242. 
 
 6. Grand Island Gas Co. vs. West, 28 Neb., 852; 45 N.W., 242. 
 
Price to be Paid Not an Indebtedness. 253 
 
 both gas and water companies, so where a majority of 
 the council are members of the water company, such a 
 contract is absolutely void. 1 But where a gas company 
 received its charter from the state and is compelled to 
 furnish gas to all consumers who may request the use of 
 gas, a city which used gas may be compelled to pay for- 
 it though the mayor of the city is the president of the gas 
 company and also a stockholder, and the charter of the 
 city prohibits such officer from being interested directly 
 or indirectly in contracts with the city, and makes such 
 contract void, because the contract to furnish gas to the 
 city is one created by law and not by the parties. 2 
 
 SEC. 7. CONTRACT BY A CITY TO FURNISH LIGHTS 
 HAS BEEN HELD BY SOME COURTS TO CREATE A MUNICI- 
 PAL INDEBTEDNESS BUT THE GREATER NUMBER HOLD 
 THAT IT DOES NOT. Where a city charter provides that 
 no city shall enter into any obligation for the payment 
 of money "without special authority of law" in excess of 
 the revenues which may be used in the payment of the 
 debt, a city cannot make a contract for a period of years 
 for the lighting of its streets and buildings unless the 
 city has the money on hand to pay for the lighting dur- 
 ing the entire period or the taxes are actually levied to 
 meet the payment for the entire term and other expenses 
 for the year. In such a case the contract may be made. 3 
 And when a city contracts an indebtedness for the pay- 
 ment of rents for hydrants for a long period of time, the 
 entire amount to be paid is to be considered in ascertain- 
 ing the indebtedness of the city. 4 
 
 The weight of authority is that the entire period is 
 not to be taken into consideration in ascertaining the in- 
 debtedness of a city under such contracts, but contracts 
 of this character, when a city makes a contract to light 
 the city for a period of years and the cost for lighting to 
 be paid each year for the lights to be furnished for that 
 
 1. Milford vs. Milford Water Co., 124 Pa., 610; 17 Atl., 185. 
 
 2. Capital Gas Co. vs. Young, 109 Cal., 140; 29 L. B. A., 463. 
 
 3. Kihchli vs. Minn. Brush Elec., 58 Minn., 418; 59 N. W., 1088. 
 
 4. Beard vs. Hopkinsville, 95 Ky., 239; 23 L. R. A., 402 and note. 
 
254 Life of Corporation. 
 
 year, do not create a municipal indebtedness. 1 So a peti- 
 tion of the holders of taxable land is not necessary to the 
 validity of the contract, since the contract does not cre- 
 ate a municipal indebtedness. 8 A statute prohibiting 
 such contracts has no application where a city has the 
 power to light the streets under another statute. 3 So 
 where a contract was made with a gas company, to light 
 the streets of a city for a period of thirty years and the 
 city was to pay a certain amount annually for each lamp, 
 and the contract specified for a number of lamps, and if 
 the whole sum which was to be paid by the city was to 
 be considered as an indebtedness, the city would incur 
 an indebtedness in excess of the constitutional limita- 
 tion, but the court held that as the contract provided to 
 be paid monthly, the debt was not incurred until the end 
 of each month and the amounts which might become due 
 did not constitute an indebtedness. 4 
 
 SEC. 8. LIFE OF A CORPORATION LAWS OR ORDI- 
 NANCES CONSTRUED STRICTLY AGAINST THE CORPORA- 
 TION RIGHT TO USE STREETS TO SUPPLY GAS THERE- 
 AFTER. Where a gas company was organized under a 
 special act of the legislature, and one section of the act 
 of incorporation provided that the gas company would 
 have "perpetual succession,' and another section of the 
 act gave the corporation an exclusive right to manufac- 
 ture gas in a certain county for a period of thirty years, 
 and the general law of the state, in force at the time, 
 limited the life of such corporations to a period of twenty 
 years, the court, in construing the statute, applied the 
 rule that, in the construction of special legislative grants, 
 all doubts are to be solved in favor oi the state, or pub- 
 
 1. Seward vs. Liberly, 142 Ind., 551; 42 N. E., 39. 
 
 2. Foland vs. Frankton, 142 Ind., 546; 41 N. E., 1031. 
 
 3. Leadville Ilium. Gas Co. vs. Leadville, 9 Colo. App., 400; 49 
 
 Pac.,268. 
 
 4. East St. Louis vs. East St. Louis Light Gas & Coke Co., 
 
 98 111., 415; N. 0. vs. Gas Light Co., 42 La. Ann.; Saleno 
 vs. Neosho, 127 Mo., 627; Kiehl vs. South Bend, 44 U. S. 
 App., 687; 76 Fed. R., 921; McBean vs. Fresno, 112 Cal., 
 159. 
 
Compulsory Service. 255 
 
 lie, and against the state's grantees, and liberally in 
 favor of the public, 1 so the corporation's right to manu- 
 facture gas and distribute the same, did not extend be- 
 yond the period of thirty years, and that the company 
 had no right to exercise the rights of a corporation 
 thereafter. 2 A corporation whose time is limited is at 
 an end on the expiration of the time, and its existence is 
 terminated as absolutely as death terminates the life of 
 a natural person; 3 but where a city gave a gas company 
 a franchise, and the franchise extended beyond the life 
 of the corporation, and the contract which gave the com- 
 pany the franchise provided that another company, which 
 had a right to fulfill the contract, would fulfill the con- 
 tract, and all its stipulations, and the latter company 
 entered upon the fulfillment of the contract, the contract 
 thus made will be binding on the city, though it extends 
 beyond the life of the corporation which made it. 4 
 
 SEC. 9. COMPULSORY SERVICE BY GAS COMPANIES. 
 A city ordinance which provided that any corporation 
 laying pipes on the streets of a city shall furnish gas to 
 all customers along the line who apply for gas, is valid, 
 and is within the power of the city to impose on a com- 
 pany in granting the company a right to lay its pipes in 
 the street. 5 No restrictions or contract need be made 
 with a company or person who deals in gas that it will be 
 furnished to persons who may demand it, for such a duty 
 is imposed on all gas companies who receive a franchise 
 
 1. State ex rel. Walker vs. Payne, 129 Mo., 468; 31 S. W., 796; 
 
 33 L. R. A., 576; Black vs. Delaware & R. Canal Co., 24 
 N. J. E., 474; Townsend vs. Brown, 24 N. J. L., 87; Par- 
 ker vs. Great Western Ry. Co., 7 Mann. & G., 288; Central 
 Transp. Co. vs. Pullman Palace Car Co., 139 U. S., 49. 
 
 2. State ex rel. Walker vs. Payne, 129 Mo., 468. 
 
 3. Asheville, etc., vs. Aston, 92 N. C., 578; Sturges vs. Vander- 
 
 bilt, 73 N. Y., 384; Supreme Lodge of K. P. vs. Weller, 83 
 Va.,605; 25 S. E., 891. 
 
 4. State, St. Louis vs. Laclede Gas Light Co., 102 Mo., 472; 15 
 
 S. W.,383; 14S.W.,797. 
 
 5. Rushvillevs. Rushville Natural Gas Co., 132 Ind.,575; 28 N.E., 
 
 853. 
 
256 Mandamus. 
 
 from the state and a right to lay pipes on the streets and 
 collect tolls since the companies receive special privi- 
 leges from the state and city, and their business becomes 
 a public business, and they must serve the public when 
 requested. 1 So when a person's house is properly 
 plumbed and his property abuts on the street, where a 
 gas company has its mains, the company is bound to fur- 
 nish gas on demand because such companies owe a duty 
 to supply gas to all. 2 And no excuse is furnished by the 
 company that the applicant is already supplied by an- 
 other company. s So when a gas company refuses to fur- 
 nish gas upon being requested to do so, and the applicant 
 has complied with the reasonable regulations of the com- 
 pany, the company may be compelled by mandamus to 
 furnish gas. 4 There are early cases in this country which 
 hold that gas companies need not furnish gas to con- 
 sumers who may apply for it unless the charter or ordi- 
 nance so provides. 5 But if a gas company using the streets 
 belonging to the public is not engaged in a public busi- 
 ness, such companies have no right to use street for pri- 
 vate purposes. This doctrine cannot be accepted as 
 good law at the present time. 6 Gas companies, like tele- 
 
 1. Williams vs. Natural Gas Co., 52 Mich., 499; 50 Am. R., 266. 
 
 2. Portland Natural Gas & Oil Co.vs. State ex rel. Keen, 135 Ind., 
 
 54; 34 N. E., 818; 21 L. E. A., 639; Shepherd vs. Milwau- 
 kee Gas Light Co., 6 Wis., 539; Bait. Gas Light Co. vs. 
 Calliday, 25 Md., 1; New Orleans Gas Light & Banking 
 Co. vs. Paulding, 12 Rob. La., 378; New Orleans Gas Light 
 Co. vs. Louisiana Light & H. P. Mfct., 115 U. S., 650. 
 
 3. Portland Nat. Gas & 0. Co. vs. State, Keen, 135 Ind., 54. 
 
 4. Portland Nat. Gas & O. Co. vs. State, Keen, 135 Ind., 54; 
 
 People vs. Manhattan Gas Light Co., 45 Barb., 136; Wil- 
 liams vs. Mutual Gas Co., 52 Mich., 499; Bloomfield & R. 
 Nat. Gas Light Co. vs. Richardson, 63 Barb., 437; Vincent 
 vs. C. & A. Ry., 49 111., 33; People vs. New York L. E. & 
 W. Ry.,104N. Y.,58. 
 
 5. Com. vs. Lowell Gas Light Co., 12 Allen, 75; McCune vs. Nor- 
 
 wich City Gas Co., 30 Conn., 521; Paterson Gas Light Co. 
 vs. Brady, 27 N.J. L., 245. 
 
 6. Amstead vs. Morris Aqueduct Prop., 47 N. J. L., 311; N. 0. 
 
 Gas Light Co. vs. La. Light & H., etc., 115 U. S., 650. 
 
Damages for Not Supplying Gas. 257 
 
 graph and telephone companies, and common carriers, 
 have no selection of their patrons, and such persons and 
 corporations enjoying public franchises, and engaged in 
 a public employment are held, in return, to owe a duty 
 to the public as well as to the individuals of that public, 
 who, in compliance with established customs or rules^ 
 make demand for the beneficial use of the privileges and 
 advantages to the public by reason of the aid so given 
 by public authority, and must serve all persons who 
 make proper application for such services upon payment 
 for the services rendered. 1 A gas company was held 
 not bound to furnish gas to a person although the stat- 
 ute provided that gas must be furnished to all persons 
 upon written application along the line where a meter 
 rent was charged and the consumer fails to pay it, in case 
 the customer depended upon electric light principally. 8 
 
 SEC. 10. LIABILITY FOR NOT FURNISHING GAS. A 
 gas company is liable for the penalty provided for in the 
 statute, for failure to connect its mains with the business 
 place and residence of a person who requests that the 
 connection be made where the supply was discontinued 
 because of a dispute between the customer and the com- 
 pany; 3 but where the gas was to be furnished at two dif- 
 ferent places, the company will not be liable for a double 
 penalty. 4 So where a natural gas company had its pipes 
 on the streets of a city and entered into a contract with 
 a prospective customer to furnish gas for fuel and light 
 for a stated period, and the customer, relying on his con- 
 tract, with the company, made no other provision to heat 
 his dwelling house, which was occupied by the customer 
 and his wife and two children, and during the winter, 
 when the weather was cold, and when the customer could 
 not procure other fuel, the company failed to furnish gas 
 for fuel and one of the customer's children died in conse- 
 
 1. Coy vs. Indianapolis Nat. Gas Co., 146 Ind., 655; 46 N. E., 17; 
 
 36 L. R. A., 535. 
 
 2. Smith vs. Capital Gas Co., 132 Cal., 209; 64 Pac., 258. 
 
 3. Jones vs. Rochester Gas & Electric Light Co., 7 App. Div.,465. 
 
 4. Jones vs. Rochester & E., 168 N.Y., 65; 60 N.E., 1044. 
 
258 Extent of Liability. 
 
 quence of the house being 1 cold, and the customer brought 
 an action for damages against the company, the company 
 was held bound to furnish the gas independent of the 
 contract between the parties, because of the franchise it 
 enjoyed, and must furnish it without discrimination, and 
 the failure of the company to furnish the gas was a tort, 
 even though the complaint showed that the company 
 failed to perform the contract; and the failure to perform 
 the contract was also a tort and the action being in tort, 
 the gas company was liable for all damages traceable to 
 its failure to furnish gas unless the person was negligent 
 in failing to procure fuel from others to supply his home. 1 
 So where a heating company was engaged in furnish- 
 ing heat to the public, and the heat was shut off in cold 
 weather and a member of the family had been sick, but 
 was recovering, but, on account of becoming chilled, for 
 the want of heat, the person took a relapse and died, and 
 an action in tort was brought against the company for 
 causing the death, the company was held liable in tort, 
 though there was an existing contract to furnish heat 
 for the house of the person who died. 8 Where a city sup- 
 plies water to its inhabitants for private use and made 
 connections with the greenhouse of a private consumer, 
 and the city permitted the pipes to be frozen in cold 
 weather, and the city could have prevented the pipes 
 from freezing, and the greenhouse was damaged for the 
 lack of water, the city is liable in an action in tort and 
 the damages sustained are not too remote; 3 and the same 
 is true where the water was shut off purposely to enforce 
 an old claim against a former tenant. 4 So where a gas 
 company contracted with a glass factory to furnish the 
 latter sufficient fuel to operate the factory for a certain 
 time, and the gas company fails to perform its contract, 
 the company was held liable for damages. The court laid 
 
 1. Coy vs. Indianapolis Nat. Gas Co., 146 Ind., 655; 46 N. E., 17; 
 
 Merrimac Riv. Sav. B. vs. City of Lowell, 152 Mass., 556; 
 10 L. R. A., 122. 
 
 2. Hoehle vs. Allegheny Heating Co., 5 Pa. Super. Ct., 21. 
 
 3. Stock vs. Boston, 149 Mass., 410; 21 N.E., 811. 
 
 4. Merrimac River Sav. Bank vs. Lowell, 152 Mass., 556. 
 
When Not Liable. 259 
 
 down the rules to ascertain the damages as follosw: 
 Where the factory is a new undertaking in that commun- 
 ity, the expenses in organizing the factory, the loss while 
 the factory was idle and which may be compensated at 
 the fair rental value, and where the factory has no rental 
 value the interest on the money invested in the factory, 
 and where funds have been laid aside to operate the fac- 
 tory, the interest on such money while it was not used, 
 and where men had to be procured at a distance and their 
 transportation had to be furnished the cost of transpor- 
 tation, and the wages paid to them may be considered 
 together with the salaries paid to officers. * And where 
 the property was residence property and where the sup- 
 ply is not sufficient and the gas to be supplied was to be 
 equal to half the rent paid to the lessor for the land from 
 which the gas was supplied, the measure of damages is 
 half the rental for the proportion of the year the gas was 
 not furnished.* So a gas company chartered under the 
 laws with right to use the streets for the conveyance of 
 gas is liable to an applicant for gas for all damages when 
 the company refused to furnish gas unless the applicant 
 signed an application which contained unreasonable 
 stipulations which were held to be void. 8 
 
 SEC. 11. WHEN LIABILITY DOES NOT ATTACH. 
 Where stockholders and directors of a gas company 
 make a contract that they will have a right to be fur- 
 nished gas permanently in preference to the public, the 
 company is not bound by such a contract as all consum- 
 ers must be treated alike without discrimination. 4 So 
 where a city was delinquent in paying for gas already fur- 
 nished, the city cannot compel a gas company to incur 
 
 1. Paola Gas Co. vs. Paola Glass Factory, 56 Kan., 614; 44 Pac., 
 
 621. 
 
 2. Kokomo Nat. Gas & Oil Co. vs. Albrecht, 18 Ind. App., 151; 
 
 47 N. E., 682. 
 
 3. Shepherd vs. Milwaukee Gas Light Co., 15 Wis., 318; 82 Ann. 
 
 Dec., 679. 
 
 4. Shoenberger vs. Equitable Gas Co. (Pa. C. P.), 22 Pittsb., 
 
 L. J. U., 347; Coy vs. Indianapolis Nat. Gas Co., 146 Ind., 
 655; 46N.E.,17. 
 
260 Contract to Supply. 
 
 further expense in extending its mains and putting" up 
 gas posts and lamps to supply gas for lights not then in 
 use. ' So a gas company that assumes to perform the con- 
 tract of another company is not bound to furnish the 
 customers of a different company with meters and appli- 
 ances in case of accident to such appliances; 2 and a gas 
 company would have a right to refuse to supply gas to a 
 building, where it is made up of several apartments, 
 such as several flats or stores, in the same building, 
 where only part of the occupants apply for gas and the 
 other occupants would not permit the company to exam- 
 ine the plumbing to see that it was safe so no one would 
 be injured or property be destroyed by gas escaping. 3 
 A company is not bound to furnish gas to a person who 
 uses electric light furnished by another company and 
 gas would be used only in case of accident to the electric 
 lights; 4 or when gas is only used occasionally and elec- 
 tric light is the principal means of illumination a person 
 is not a consumer of gas and it need not be furnished. 5 
 
 SEC. 12. CONTRACT TO SUPPLY GAS LIMITATIONS 
 IN USE. Where a consumer of gas and a company en- 
 gaged in supplying the same enter into an agreement 
 that the gas company would furnish natural gas to op- 
 erate his plant as long as the gas company has gas, is not 
 void for indefiniteness, although the consumer uses gas 
 for other purposes than in the operation of his plant. 8 
 And under a provision in a contract that a gas company 
 will furnish, to a customer, free of charge, all the gas 
 needed in his residence for the usual purposes and also 
 will furnish gas for two street lamps and gas for a log 
 in his library, for a period of twenty years, is not void 
 
 1. Pensacola Gas Co. vs. Pensacola, 33 Fla., 322; 14 So., 826. 
 
 2. Fleming vs. Montgomery Gas. Co., 100 Ala., 657; 13 So., 618. 
 
 3. Schmeer vs. Gas Light Co., 147 N. Y., 529; 30 L. R. A., 653. 
 
 4. Fleming vs. Montgomery Gas Co., 100 Ala., 657; 13 So., 618. 
 
 5. Adams Express Co. vs. Cin. Gas Co., 10 Ohio Des., 389. 
 
 6. Xenia Real Estate Co. vs. Macy, 147 Ind., 568; 47 N. E., 147; 
 
 Whitman vs. Fayette Fuel Gas Co. 139 Pa., 492; 20 Atl., 
 1062. 
 
Shutting Off Supply of Gas. 261 
 
 because it is not sufficiently specific; 1 but such a contract 
 will not authorize the person who is to receive the gas 
 to waste the same, and, where the user is charged with 
 the commission of waste, the court will fix the amount 
 the consumer will be entitled to under the contract, and 
 the consumer will not be permitted to exceed the amount 
 allowed by the court to be used, and the court, in fixing 
 the amount of gas to be used, will restrict the use to 
 that, as it existed, when the contract was made, although 
 new and modern appliances can be substituted for those 
 in use when the contract was made. 2 
 
 SEC. 13. SHUTTING OFF THE SUPPLY OF GAS AR- 
 REARS RULES. Gas companies may adopt reasonable 
 rules governing the supply of gas to consumers, and, 
 among them, it may be provided that the company may 
 shut off the supply of gas to persons who are in arrears 
 in the payment of gas consumed. 3 So an ordinance which 
 provided that when the consumer does not pay for gas 
 ten days after the bill is rendered the gas may be turned 
 off, is valid as a reasonable regulation. 4 The right to 
 shut off the supply of gas is subject to many restrictions. 
 The arrears of a former owner or occupant of the 
 premises will not authorize the company to shut off the 
 supply to a new owner or occupant. 8 Or where a corpo- 
 ration is suspended and receivers are appointed by the 
 court, the receivers are regarded as new tenants and do 
 not come under the English Gas Act, and need not pay 
 arrears of gas rent before they are entitled to be sup- 
 
 1. Graves vs. Key City Gas Co., 83 la., 714; 50 N. W., 283. 
 
 2. Graves vs. Key City Gas Co., 93 la., 470; 61 N. W., 937; 48 
 
 Am. and E. Civ. Cases, 130. 
 
 3. Gas Light Co. vs. Colliday, 25 Md., 1; People vs. Manhattan 
 
 Gas Light Co., 45 Barb., 136; Tacoma Hotel Co. vs. Ta- 
 coma Light & Water Co., 3 Wash., 316; 28 Pac., 517; 14 L. 
 R. A., 669; Mackin vs. Portland Gas Co., 38 Or., 120; 61 
 Pac., 134; 62 Pac., 20; 49 L. R. A., 596. 
 
 4. Com. Trustees, etc., vs. Philadelphia, 132 Pa., 288; 19 Atl., 136. 
 
 5. Merrimac River Sav. Bank vs. City of Lowell, 152 Mass., 556; 
 
 26 N. E.,97. 
 
262 Right to Shut Off Supply of Gas. 
 
 plied, 1 or where the contract provided that the gas 
 company may discontinue "to furnish gas to any prem- 
 ises, the owner or occupant of which shall be indebted 
 to the company for gas or fittings used upon said prem- 
 ises, or elsewhere" and the contract was made after de- 
 fault had been made in the payment for gas at another 
 place, the company will not be justified in shutting off 
 the gas on account of the former default, 2 or where the 
 consumer and the gas company enter into separate con- 
 tracts for separate houses a default in the payment in 
 one place will not justify the shutting off of the gas at 
 another place. 8 And where there is a dispute about the 
 arrears, the gas company will not be permitted to shut 
 off the gas pending an investigation by the courts, 4 or 
 when the arrears are left by former occupants, a gas 
 company is not authorized to turn off the supply, B but 
 some courts hold that there is a liability on the part of 
 the incoming tenant to pay or the gas may be shut off. 8 
 
 SEC. 14. SUPPLY OP GAS RIGHT TO SHUT OFF, 
 CONTINUED. Where the gas is supplied to a person free 
 for a number of years, a gas company is not justified in 
 shutting off the supply because the person is using the 
 gas in a wasteful manner, and the court will enjoin the 
 company from shutting off the gas. 7 And where a bor- 
 ough acquired the right to use gas free for all city pur- 
 poses for the privilege of laying its pipes on the streets 
 the borough will not be enjoined from using gas exces- 
 sively and the remedy of the company is an action for 
 the value of the gas excessively used; 8 and a gas com- 
 pany is not allowed to shut off the gas furnished on 
 
 1. Patterson vs. Gas Light & Coke Co., 2 Ch., 476; 65 L. J. Ch. 
 
 N. S.,443Riv. 
 
 2. Lloyd vs. Washington Gas Light Co., 1 Mackey, 331. 
 
 3. Gas Light Co. vs. Colliday, 25 Md., 1. 
 
 4. Sickles vs. Manhattan Gas & L. Co., 66 How. Pr., 314; Wood 
 
 vs. Auburn, 87 Me., 287; 32 Atl., 906; 29 L. R. A., 376. 
 
 5. People vs. Manhattan Gas & L. Co., 6 Jones & S., 185. 
 
 6. Girard Life Ins. Co. vs. Phila., 88 Pa., 393; Com. vs. Phila., 
 
 132 Pa., 288. 
 
 7. Graves vs. Key City Gas Co., 83 la., 714; 50 N.W., 283. 
 
 8. Saltsburg Gas Co. vs. Saltsburg, 138 Pa., 250; 20 Atl., 844. 
 
Price to &e Paid a Personal Debt. 263 
 
 premises because the gas bill is not paid at another 
 premises, but the authorities conflict on the point. l The 
 gas company, in regulating- the supply of gas may adopt 
 rules and regulations relating to the supply of gas to 
 customers, but such rules and regulations must be just 
 and reasonable. Thus a company may require the de" 
 posit of money to secure the payment before the gas is 
 furnished; 2 and whether a deposit of $5 is an unreason- 
 able amount to be asked to secure the payment of gas 
 for a person's office is a question of fact for a jury; 3 and 
 where gas bills are to be paid at a certain time, and the 
 gas company imposes a penalty of five per cent for fail- 
 ure to pay in ten days, and in case of default of fifteen 
 days the supply to be turned off, such a rule is a reason- 
 able one. 4 So where the gas company reserved the right 
 to turn off the gas if the consumer fails to pay for gas 
 supplied and the consumer is in default in the payment 
 of gas at one set of premises, the company will be justi- 
 fied in shutting off the gas supplied to the premises 
 where there is no default, as the obligation to pay for 
 the gas is personal to the consumer and does not attach 
 to the premises where the gas is consumed; 5 and where 
 a natural gas company reserves the right to shut off the 
 supply in case the natural gas fails, which the company 
 is furnishing, and notifies the consumer if the gas is to 
 be shut off, the consumer cannot enjoin the shutting off 
 of the gas. 6 Where a gas company is given the exclu- 
 
 1. Cadieux vs. Montreal Gas Co., 28 Canada S. C., 382. Re- 
 
 versed in A. P. 589 (1899). 
 
 2. Williams vs. Mutual Gas Co., 52 Mich., 499; 18 N. W., 236. 
 
 3. Bennett vs. East Chester Gas Light Co., 40 App. Div. 169; 
 
 57 N.Y., Supp. 847. 
 
 4. Tacoma Hotel Co. vs. Tacoma Light & H. Co., 3 Wash., 316; 
 
 28 Pac., 517; 14 L. R. A., 669. 
 
 5. Montreal Gas Co. vs. Cadieux, 81 L. R. Rep., 274; Appeal 
 
 Cases 589 (1899) ; People vs. Manhattan Gas Co., 45 Barb., 
 136; State ex rel. Meise vs. Sedalia Gas Light Co., 34 Mo. 
 App., 501; Mackin vs. Portland Gas Co., 38 Or., 120; 61 
 Pac., 134; 62 Pac., 20; 49 L. R. A., 596. 
 
 6. Thompson Glass o. vs. Fayette Fuel Co., 137 Pa., 317; 21 
 
 Atl., 93. 
 
264 Rules of Gas Companies. 
 
 sive right to furnish gas to a city such company cannot 
 require a consumer to make a deposit to secure the pay- 
 ment of gas, unless the same is required of all the con- 
 sumers of the company. x A customer is not bound to pay 
 for the amount registered by the meter and the company 
 will be prevented from shutting off the gas where the 
 meter might not have correctly registered the amount of 
 gas used. 8 
 
 SEC. 15. REASONABLENESS OF THE RULES OF A GAS 
 COMPANY RIGHT OF A CONSUMER TO BE SUPPLIED. 
 The rules of a gas company which require a prospective 
 customer to subscribe to th em must be reasonable. A rule 
 which will permit the gas company to have access, at all 
 times, to the buildings and dwellings of a consumer, and 
 a right to examine the whole apparatus and a right to 
 remove the meter and service pipes is too general and 
 cannot be upheld and a prospective consumer need not 
 subscribe to such a rule before he is entitled to gas. 3 And, 
 where another rule of the same company provided that 
 the company may shut off the gas, at any time to protect 
 itself from fraud, such a rule is invalid, because a gas 
 company cannot assume to do that which is the province 
 of the courts to decide and determine, and, if the company 
 is defrauded, it must resort to the same tribunal as other 
 persons or corporations do to protect themselves against 
 fraud. 4 And where a rule provided that after gas was 
 admitted into the pipe, the pipes should not be discon- 
 nected or opened, either for alterations, repairs, or ex- 
 tension, without a permit from the company, which could 
 be had free of charge, and any person who may violate 
 this regulation would be required to pay triple the amount 
 of damages occasioned thereby, the rule was declared 
 invalid, because a gas company cannot impose penalties 
 
 1. Owensboro Gas Light Co. vs. Hildebrand, 19 Ky. L. R., 983; 
 
 42 S. W., 351. 
 
 2. Sickles vs. Manhattan Gas Light Co., 64 How. Pr., 33. 
 
 3. Shepherd vs. Milwaukee Gas Light Co., 6 Wis., 539; 70 Am. 
 
 Dec., 479. 
 
 4. Shepherd vs. Milwaukee Gas Light Co., 6 Wis., 539. 
 
Injunction Against Gutting Off Supply. 265 
 
 and make a submission of a consumer to such penalties, 
 a condition precedent to his right to be furnished gas, 
 and a gas company cannot assume the sovereign right to 
 impose penalties on a person because such person may 
 alter, change or extend the apparatus which conveys gas 
 through his own house and which was placed in such 
 house by the owner. ' So where rent was required to be 
 paid in advance for a stated time, and was required to be 
 paid, whether used or not, a rule which imposes such re- 
 quirements on a consumer is unreasonable and invalid.* 
 So where a water company held a franchise to furnish the 
 public with water and one of its rules provided that in 
 case of default in the payment of the rent in advance, 
 the water would be turned off and a charge of $1.00 would 
 be made for turning the water off and on, and a consumer 
 did not pay the rent when due and the water was turned 
 off and the consumer thereafter tendered the amount due 
 for rent less the $1.00 for turning the water off and on and 
 requested the company to turn the water on, the com- 
 pany refused to do so without the payment of the $1.00, 
 but, on an application for a writ of mandamus, the com- 
 pany was compelled to turn on the water without pay- 
 ment of the $1.00, since an enforcement of the rule would x 
 compel a citizen who had made default in his rent, though 
 all rents were thereafter paid, to pay more for the water 
 furnished than other citizens under the same conditions, 
 and that the costs and expenses of turning the water 
 on and off were part of the rent paid annually and an ex- 
 tra compensation cannot be demanded where default is 
 made. 8 
 
 9 
 
 SEC. 16. INJUNCTION AGAINST CUTTING OFF THE 
 SUPPLY OF GAS RESTORATION OF THE GAS. A gas 
 company may be injoined from shutting off the supply 
 of gas, hence a gas company which made a contract with 
 an electric light plant to supply the plant with natural 
 
 1. Shepherd vs. Milwaukee Gas Light Co., 6 Wis., 539. 
 
 2. Eockland Water Co. vs. Adams, 84 Me., 472; 24 Atl., 840. 
 
 3. American Water Works Co. vs. State exrel Walker, 46 Neb., 
 
 194; 30 L. R. A., 447; 64 N. W., 711. 
 
266 Waste of Gas by Consumer. 
 
 gas as long as the gas company had a supply, will be 
 enjoined from cutting off the supply of gas agreed to be 
 furnished to the plant under the contract on a complaint 
 of the owner of the plant, that the plant was constructed 
 with the view that the plant would be furnished with 
 natural gas to operate the plant, and that the owner of 
 the plant was engaged in supplying a number of persons 
 with electric lights and that contracts have been made 
 between such persons and the owners of the electric light 
 plant and that the contracts have some time to run in the 
 future, and that, if natural gas was not furnished to his 
 plant, the contracts cannot be fulfilled, and that the 
 owners of the plant will be liable in damages if such con- 
 tracts are not fulfilled, and that the owners, if fuel can 
 be obtained from other sources, will be delayed in acquir- 
 ing it and that it will subject such owner to great ex- 
 pense. l So when a company contracts to furnish gas and 
 then threatens to shut off the gas, and the right of the 
 company to shut the gas off is questioned by the con- 
 sumer, the gas company will be enjoined pending a hear- 
 ing of the case on its merits;* and where the ground set 
 up by the company as a right to shut off the gas is that 
 the consumer who receives the gas free for a number of 
 years is committing waste, the company's remedy is not 
 in shutting off the gas but in limiting the use of the gas 
 within the terms of the contract; 3 and when the use is 
 excessive, an action for the value of the gas used beyond 
 that to which the consumer was entitled will lie. 4 So 
 where the consumer no longer wishes to use gas the con- 
 sumer must notify the company to disconnect the gas; 
 and the consumer, or the company from which the con- 
 sumer contracts to receive gas in the future, has no right 
 to interfere with the property of the former company 
 which was on the public street, and cannot open boxes and 
 use the stop cocks of such company to shut off the gas 
 
 1. Xenia Real Estate Co. vs. Maey, 147 Ind., 568; 47 N. E., 147. 
 
 2. Corbet vs. Oil City Supply Co., 5 Pa. Super. Ct., 19. 
 
 3. Graves vs. Key City Co., 83 la., 714; 93 la., 470. 
 
 4. Saltburg Gas Co. vs. Saltburg, 138 Pa., 250. 
 
Charges for Meters. 267 
 
 when such property was on the street, and will be enjoined 
 from doing" so, unless the proper notice was given to shut 
 off the gas. 1 But a gas company has no right to compel 
 a consumer to use gas which the consumer agreed to use, 
 when the contract is definite in its terms and full com- 
 pensation can be made in an action for damages,* but 
 where a gas company contracts to furnish gas and shuts 
 the gas off from the plant of a consumer and no reason 
 is given for doing so, it will be compelled to restore the 
 gas to the consumer, 8 but the want of a supply of gas 
 contracted to be furnished will give the company a right 
 to shut off the gas where such right was reserved. 4 
 
 SEC. 17. METERS AND MIXERS EXTRA CHARGES 
 TO SMALL CONSUMERS. Under a charter which provided 
 that a company will be allowed a price not to exceed 
 $1.35 per thousand feet consumed by private consumers 
 with a deduction of five per cent, if paid five days after 
 due, a gas company will not be permitted to charge small 
 consumers at the rate of $1.35 per one thousand feet and 
 in addition thereto rent for meters which the company 
 furnishes to measure the gas consumed, as the company 
 was bound to furnish the meter to measure the gas con- 
 sumed the same as it was bound to furnish the plant to 
 manufacture the gas; and whe're the company threatens 
 to shut off the gas for the non-payment of meter rent, it 
 will be enjoined at a suit of the consumer; 5 but where 
 there is no restriction in the charter of a company, or in 
 the ordinance which grants the company the right to use 
 the streets, the company may charge more to small con- 
 sumers than to large ones, and because the charges are 
 denominated meter rents, does not make such charge 
 
 1. Pennsylvania Gas Co. vs. Warren Gas Co., 3 Pa. Dist. Rep., 67. 
 
 2. Steinau vs. Cincinnati Gas Light & Coke Co., 48 Ohio St., 324; 
 
 27 N. E.,545. 
 
 3. Whiteman vs. Fayette Fuel Gas Co., 139 Pa., 492; 20 Atl., 
 
 1062. 
 
 4. Black Lick vs. Salsbury, 139 Pa., 448; 21 Atl., 432. 
 
 5. Louisville Gas Co. vs. Dulaney, 100 Ky., 405; 36 L. E. A., 125; 
 
 38 S. W., 703; Capital Gas & Electric Light Co. vs. Gaines, 
 20 Ky. L. R., 1464; 49 S. W., 462. 
 
268 Control of Meters and Mixers. 
 
 meter rents, but, in fact, the charges are for gas up to a 
 certain amount.! So where a government tax is imposed 
 on a gas company for the gas used in supplying custom- 
 ers the tax may be added to the price of the gas fur- 
 nished to the customers.* 
 
 SEC. 18. METERS, CONTROL BY GAS COMPANY; 
 PLACING GOVERNORS THEREON ILLEGAL; EQUITY WILL 
 DECREE REMOVAL GOVERNORS MAY BE PLACED IN 
 PIPES OWNED BY CONSUMERS GAS COMPANY PLACING 
 METER IN A BUILDING NOT A BAILMENT OF METER 
 REMOVAL OF METER FOR FaiLURE TO PAY COST OF CON- 
 NECTIONAPPROVAL OF METER. Where a person re- 
 ceives gas from a natural gas company, the owner of the 
 premises, where the meters and mixers are used to meas- 
 ure the gas consumed, has no right to interfere with such 
 meter or mixer without notice to the company from which 
 gas is received. ' And where the meters and mixers are 
 placed in the property of the consumer, and are placed 
 there by the company supplying gas, and the company 
 is responsible and liable for all injuries which may arise 
 from defects in the meters and mixers, and the necessary 
 connection with the service pipe and consumer's pipes, 
 there is no bailment of such meters, mixers and necessary 
 connections, where the law requires of the company to 
 place on the premises of every consumer ' 'a correct ap- 
 paratus or meter for regulating the consumption of gas, 
 and keep the same in working order." 4 So where such 
 meters, mixers and connecting pipes belong to the gas 
 company, the consumer of gas has no right to place a 
 governor to regulate the pressure of gas on any part of 
 the property of the company; and where such owner or 
 occupant of the premises, or any other person in his 
 
 1. State, Weise vs. Sedalia Gas Co., 34 Mo. App., 501; Louisville 
 
 Gas Co. vs. Dulaney, 100 Ky., 405. 
 
 2. St. Louis Gas Light Co. vs. St. Louis, 11 Mo. App., 55 S.C.; 
 
 84 Mo., 202. 
 
 3. Pennsylvania Gas Co. vs. Warren Gas Co., 3 Pa. Dist. R., 67. 
 
 4. Consolidated Gas Co. vs. Blondell, 89 Md., 732; 43Atl.,817; 
 
 46 L. E. A., 187. 
 
Illegal Use of Meters. 269 
 
 behalf, places a governor on such apparatus, the act is 
 an unlawful trespass, and a court of equity will enjoin 
 any farther trespass. 1 The court will interfere more 
 readily where gas fixtures and apparatus are interfered 
 with because of their peculiar nature and liability to 
 injure persons and property if the gas should escape^* 
 And where such governors have been placed on the ap- 
 paratus of the company by a third person, the consumer 
 is not a necessary party to a bill in equity requiring them 
 to be removed, though they were placed there with his 
 consent. 3 The defense of laches will not prevail against 
 the company in such a case, since gas is a dangerous 
 commodity, and by allowing persons to use the meter for 
 their own purposes, it would be difficult to determine 
 who caused the injury, and while the company is alone 
 responsible the blame for an accident can be easily fixed. 4 
 Where governors are wrongfully placed on the apparatus 
 of the company, the court will compel and require the 
 parties who placed them on the meters to remove them, 
 and such defendants must remove them, though they do 
 not control the premises, as the consumer cannot object 
 against a valid decree of the court for their removal. 5 
 The gas company, however, cannot prevent the owner 
 of a house from placing a governor on any part of the 
 pipe which belongs to such owner.' Where the meter 
 was the property of the gas company, and the company 
 was not required to put in service pipes, but did so, un- 
 der an agreement with the consumer that the company 
 would put in the service pipe, and the consumer would 
 pay for the cost of putting in the service pipes; the gas 
 company is justified in removing the meter where the 
 
 1. Consolidated Gas Co. vs. Blondell et. al., 89 Md., 732. 
 
 2. Consolidated Gas Co. vs. Blondell, supra.; De Mattos vs. 
 
 Gibson, 4 De. G. & J., 276. 
 
 3. Consolidated Gas Co. vs. Blondell, supra. ; Blaen Avon Coal 
 
 Co. vs. McCulloh, 59 Md., 403; 43 Am. Rep., 560. 
 
 4. Consolidated Gas Co. vs. Blondell, 89 Md., 732. 
 
 5. Consolidated Gas Co. vs. Blondell, 89 Md., 732. 
 
 6. Consolidated Gas Co. vs. Blondell, 89 Md., 732. 
 
270 Recovering Back Overcharges. 
 
 consumer fails to pay for the service pipe. 1 An ordinance 
 which required a natural gas company to furnish natural 
 gas by meters or through mixers, if the consumer re- 
 quired the company to furnish it in that way, is unrea- 
 sonable, as the company may be able to use other ap- 
 pliances not so expensive to the company and without 
 injury to the consumer. 2 Where a statute provided that 
 a certain city official or his deputies shall be required to 
 inspect all gas meters, and if such meters are correct, to 
 approve the same and seal and stamp them, and where 
 such inspector or his deputy neglects or fails to do as 
 the law required, they will be compelled by mandamus to 
 perform his duty. 8 4 
 
 SEC. 19. OVERCHARGE FOR GAS RECOVERY BACK. 
 Under a charter which fixed a limit which may be 
 charged to customers who are furnished with gas, the 
 company cannot charge an additional sum to small con- 
 sumers as meter rents; and where such charges were made 
 by the gas company and paid by the consumer without 
 objection, the overcharge may be recovered back because 
 such charges were not within the power of the gas com- 
 pany to make. 4 So where an ordinance limited the amount 
 to be charged by the gas company and the company made 
 charges in excess of the charges allowed by the ordi- 
 nance, an action in assumpsit will lie to recover back 
 the excessive charges paid to the gas company by one 
 who did not know that the ordinance limited the amount 
 to be charged by the average price paid by consumers 
 in other cities named, and such charges are not consid- 
 ered as voluntarily paid; 8 but the right of a person to 
 recover back overcharges which were collected contrary 
 to a statute has been denied where, under certain circum- 
 
 1. Detroit Gas Co. vs. Moreton Truck & S. Co., Ill Mich., 401; 
 
 69 N. W.,659. 
 
 2. Toledo vs. Northwestern Natural Gas Co., 5 Ohio C. C., 557. 
 
 3. Re McDonald (N. Y.), 16 Misc., 304. 
 
 4. Capital City Gas & Electric Light Co.vs. Gaines, 20 Ky. L. R., 
 
 1464; 49 S. W., 462. 
 
 5. Pingree vs. Mutual Gas Co., 107 Mich., 156; 65 N. W., 6. 
 
Acceptance of Ordinance. 271 
 
 stances, the price of gas was to be reduced and such cir- 
 cumstances happened but the company did not reduce 
 the price. 1 
 
 SEC. 20. ESTOPPEL AS TO A PROVISION IN AN ORDI- 
 NANCE, OR WHEN A PERSON SIGNS A CONTRACT TO TAKE 
 GAS IF OTHERS SHOULD SUBSCRIBE TO TAKE GAS ALSO. 
 Where an ordinance was passed in compliance with a 
 statute and such an ordinance limited the price of gas to 
 be charged by a gas company the company will not be 
 permitted to charge a consumer more than the limit fixed 
 by the ordinance; and, where the company fixes the 
 charges in excess of the maximum price, the company 
 will be enjoined from collecting such excessive charges. 8 
 And where the ordinance imposed certain restrictions 
 on the company, and such company so acted as if the 
 ordinance was accepted, in all its terms, and filed a nom- 
 inal acceptance, and opened the street under the ordi- 
 nance, and reaped all the benefits conferred by the ordi- 
 nance, and there was a condition to the ordinance that 
 the same should be accepted before any rights would 
 accrue under the ordinance, the company cannot repudi- 
 ate the provision of the ordinance. 3 Under an agreement 
 whereby a certain person was to sink a gas well and lay 
 pipes to supply certain persons with gas and all others 
 who may wish to receive gas, and the gas well was to 
 be sunk and the pipes laid as soon as twenty or more 
 persons would agree to take gas, the contract became 
 binding as soon as twenty persons agreed to become con- 
 sumers of gas, and no one of the presons who agreed to 
 take gas can withdraw his consent without the consent 
 of all the subscribers and the person who was to furnish 
 the gas. 4 No express agreement is necessary to hold a 
 third person liable for the gas consumed where the per- 
 son's drilling apparatus was supplied by gas through 
 
 1. Johnston vs. Consumers Gas Co., 78 Law Term R., 270 (1898). 
 
 2. Westfield Gas & Min. Co. vs. Mendenhall, 142 Ind., 538; 41 N. 
 
 E., 1033. 
 
 3. Allegheny vs. Peoples Nat. Gas, etc., 172 Pa., 632; 33 Atl., 704. 
 
 4. Current vs. Fulton, 10 Ind. App., 617; 38 N. E., 419. 
 
272 Gas Companies Public Corporations. 
 
 pipes from the plant of a person who had gas for sale 
 and he knew that fact, although the person so using" the 
 gas had a contract with the person for whom the drilling 
 was being done that the latter would furnish the gas 
 which was necessary for the operation of the drilling 
 apparatus, and'such person made an agreement with the 
 person whose gas was used that the gas would be fur- 
 nished to the driller. * 
 
 SEC. 21. GAS COMPANIES QUASI PUBLIC CORPORA- 
 TION MUST SUPPLY CUSTOMERS MANDAMUS TO COM- 
 PEL THE COMPANY TO SUPPLY PAYMENT OR TENDER 
 OF PAYMENT WILL RELIEVE THE CUSTOMER FROM DE- 
 FAULT AND THE COMPANY MUST THEREAFTER SUPPLY, 
 It has been heretofore shown that gas companies are 
 quasi public corporations; hence, where such corporations 
 are clothed with the right of eminent domain, or receive 
 the consent from the proper authorities or parties to lay 
 their pipes in the public streets and highways, then the 
 corporations are placed on the same basis as telegraph, 
 telephone, common carriers, and other companies of like 
 nature, so where a customer requests a gas company to 
 supply him with gas the company must do so upon the 
 customer complying with reasonable and uniform rules 
 adopted by the company, and, on refusal of the company 
 to serve a customer whose property abuts on the street 
 where the company pipes are laid, then the company 
 may be compelled by mandamus to supply gas to the 
 customer. 2 A customer is entitled to be served though 
 
 1. Chamberlain vs. Summit Gas Co., 3 Penney (Pa.), 261. 
 
 2. Portland Natural Gas & Oil Co. vs. State, Keen, 135 Ind., 54; 
 
 35 N. E., 818; 21 L. R. A., 639; People vs. Manhattan Gas 
 Light Co., 45 Barb., 136; Williams vs. Mutual Gas Co., 52 
 Mich., 499; Bloomfield & R. Nat. Gas. Co. vs. Richardson, 
 63 Barb., 437; Coy vs. Indianapolis Gas Co., 146 Ind., 655; 
 46 N. E., 17; 36 L. R. A., 635; American Water Works Co. 
 vs. State, Walker, 46 Neb., 194; 64 N. W., 711; 30 L. R. A., 
 447; Hangen vs. Albina Light & Water Co., 21 Or., 411; 
 28 Pac., 244; State, Webster vs. Neb. Tel. Co., 17 Neb., 
 126; 22 N. W., 237; Shepard vs. Milwaukee Gas Light Co., 
 6 Wis., 539; 70 Am. Dec., 479; Wood vs. Auburn, 87 Me., 
 287; 32 AtL, 906; Mackin vs. Portland Gas Co., 49 L. R. A., 
 596. 
 
Discrimination in Rates. 273 
 
 another company supplies him; 1 and though the con- 
 sumer has made default in the payment of his rent due 
 for the consumption of gas, after the consumer paid or 
 tendered the payment of the legal charges due, the con- 
 sumer is entitled to the writ of mandamus to compel the 
 company to supply him with gas, 2 but some courts have 
 held that a gas company is not required to supply gas 
 to persons any more than a dealer in any other commod- 
 ity would be required to do so. 3I 
 
 SEC. 22. DISCRIMINATION IN FAVOR OP CERTAIN 
 CUSTOMERS is ILLEGAL DISCRIMINATIONS ILLEGAL AT 
 COMMON LAW. A vendor of gas cannot charge more than 
 the price fixed by the ordinance giving the right to sup- 
 ply, but the price fixed in the ordinance is not binding on 
 customers where it is unreasonable, unjust and oppres- 
 sive. 
 
 Gas companies, telephone and telegraph companies, 
 common carriers and other owners of property which 
 devote it to a use in which the public has an interest, in 
 effect, grant to the public an interest in such use and 
 must, to that extent, submit to be controlled by the pub- 
 lic. And all persons, or any individual, are entitled to be 
 served, on equal terms and at rates which are uniform. 
 Any and all discriminations made by parties whose prop- 
 erty is devoted to a public use are unjust, since the law 
 requires that there must be equality of rights to all and 
 special privileges to none. So where a company, which 
 was the only plant in a city, charged some customers a 
 higher price to be supplied than to others the charges 
 thus made were declared to be illeg'al and an unlawful 
 discrimination, and were so, though the charges did not 
 
 1. Portland Natural Gas & Oil Co. vs. State, Keen, 135 Ind., 54. 
 
 2. People, McGrath vs. Green Island Water Co., 56 Hun., 76; 
 
 American Water Works Co. vs. State, Walker, 46 Neb., 
 194; 64 N. VV.,711; Maekin vs. Portland Gas Co., 38 Or., 
 120; 61 Pac.. 134; 62 Pac., 20; 49 L. R. A., 596. 
 
 3. McCune vs. Norwich City Gas Co., 30 Conn., 521; Patterson 
 
 vs. Gas Light Co., 27 N. J. L., 245. 
 
274 . Price Which May be Charged. 
 
 exceed the maximum price allowed by ordinance. * So, 
 where a gas company which was organized under a law 
 providing 1 that it shall furnish gas for fuel and lighting 
 purposes to the public and on equal terms to all, the 
 company cannot favor the directors or the stockholders 
 with reduced prices; and, where a company makes a 
 contract with such parties, giving them special terms, 
 the contract is void as being against public policy. 2 So, 
 where a prospective customer applies for gas from a gas 
 company and the supply of gas is refused, the company 
 will be compelled to furnish the gas, where no valid ex- 
 cuse can be given by the company, and when it appears 
 that the company was acting in behalf of another com- 
 pany and both were acting together in the interests of 
 each other, the company to which the application has 
 been made must furnish the gas and has no voice in de- 
 termining who shall be its customers. 3 And where an 
 ordinance provided that each and all would be furnished 
 gas on equal terms, and at uniform and reasonable prices, 
 the ordinance went no further than that which the com- 
 mon law required of the companies. 4 Where an ordinance 
 or charter fixed the maximum rates to be charged by a 
 gas or water company, the companies cannot charge any 
 more for a supply than that prescribed in the ordinance 
 or charter when the company accepted the ordinance or 
 charter; but the rates fixed in the ordinance or charter 
 are not binding on a customer, where such rates are 
 unreasonable, since one is entitled to be supplied with 
 water or gas on a tender of reasonable rates and to an 
 injunction to prevent the company from cutting off the 
 supply on refusal of the customer to pay the unreason- 
 able rates. 6 It is also an unjust discrimination when 
 
 1. Griffin vs. Goldsboro Water Co., 122 N. C., 206; 30 S. E., 319; 
 
 41 L. R. A., 240. 
 
 2. Crescent Steel Co. vs. Equitable Gas Co. (Pa.), 23 Pittsb., L. 
 
 J. U. S.,316. 
 
 3. Hagan vs. Fayette Fuel Gas Co., 21 Pa. Co. Ct., 503; 29 Pittsb. 
 
 L. J. U. S., 229. 
 
 4. Toledo vs. Northwestern Ohio Nat. Gas Co., 6 Ohio N. P., 531. 
 
 5. Griffin vs. Goldsboro Water Co., 122 N. C., 206; Toledo vs. 
 
 Northwestern Ohio Nat. Gas Co., 9 Ohio C. P. Dec., 272. 
 
Gas Companies Subject to Public Control. 275 
 
 more is charged for lighting" than for fuel purposes, where 
 the gas is the same and the only reason for such a dis- 
 crimination in the charges is the gas is worth more for 
 illuminating purposes to the consumer than for fuel. * So 
 where a gas company is given the exclusive right to 
 furnish gas to a city and its people the legislature has 
 the power to revoke its charter where the public is op- 
 pressed because of excessive rates. 3 
 
 SEC. 23. VENDORS OF GAS TO THE PUBLIC ARE SUB- 
 JECT TO THE CONTROL OF THE STATE LEGISLATURE 
 PRICE MAY BE FIXED WITHOUT NOTICE OF SUCH VEND- 
 ORS. There is no question but that persons or companies 
 engaged in supplying the public with gas are carrying 
 on a business which concerns the public and that such 
 companies have devoted their property to a public use, 
 so where such a use exists the business becomes subject 
 to legislative control in all respects necessary to protect 
 the public against danger, injustice and oppression. 8 
 The power of the legislature does not depend upon the 
 question whether the person controlling these properties 
 have a monopoly in the business, but the sole question 
 is whether the property is devoted to a public use. 4 So 
 where a water company was engaged in the business of 
 furnishing water to the public, the legislature has a right 
 to regulate the price for which water shall be sold; 5 and 
 the legislature may fix the price to be charged without 
 any notice to the persons or corporations to be affected 
 thereby. 6 A gas company cannot charge more for gas 
 
 1. Baily vs. Fayette Fuel Gas Co., 193 Pa., 175; 44 Atl., 251. 
 
 2. State vs. Milwaukee Gas Light Co , 29 Wis., 386. 
 
 3. Georgia Railroad & Bank. Co. vs. Smith, 128 U. S., 174; Munn 
 
 vs. Illinois, 94 U. S., 113. 
 
 4. People vs. Budd, 117 N. Y., 1; Budd vs. New York, 143 U. S., 
 
 517; Brass vs. North Dakota, 153 U. S., 391. 
 
 5. Spring Valley Water Works vs. Shatteler, 110 U. S., 347; Aqua 
 
 Pura Co. vs. Mayor Las Vegas, N. M., ; 60 Pac., 
 208; 50 L. R. A., 294. 
 
 6. Munn vs. Illinois, 94 U. S., 113; Budd vs. New York, 143 U. S., 
 
 517. 
 
276 Right of Public to Fix Price of Gas. 
 
 than is allowed by the city ordinance although the com- 
 pany had a contract with the consumer allowing- a higher 
 price, and such contract was made before the ordinance 
 was passed. 1 
 
 SEC. 24. RIGHT TO Fix PRICE MAY BE DELEGATED 
 TO MUNICIPAL AUTHORITIES ORDINANCE PASSED IN 
 PURSUANCE OF SUCH AUTHORITY REGARDED AS A STATE 
 LAW NOTICE MUST BE GIVEN TO THE VENDOR OF GAS 
 BEFORE THE PRICE OF GAS CAN BE FIXED RIGHT OF 
 CITIES WHEN CONSUMERS TO Fix THE PRICE. The leg- 
 islature having the right to fix the price to be paid to 
 the vendors of gas by the public, the legislature may 
 authorize the city council of the various cities to fix the 
 price of gas and the delegation of such authority is not 
 unlawful. 2 And when a statute confers a power upon 
 the municipal authorities to fix the charges to be paid 
 for gas by consumers, the ordinance or regulation fixing 
 the price to be paid for gas is a state law; 8 but, where 
 the legislature does not fix the price to be paid, but dele- 
 gates the authority to a commission, or to the municipal 
 authorities, the parties, the price of whose commodity is 
 to be fixed, must have notice of the time and place of 
 the hearing to determine the price to be charged; in 
 short, there must be a judicial investigation of the rea- 
 sonableness of the rate to be fixed; and a notice or sum- 
 mons must be served on the party to be affected thereby 
 and an opportunity to be heard on the question; and, 
 where rates are fixed without a judicial determination, 
 such rates are void as depriving a person of his property 
 without the process of law; 4 and where the city con- 
 ferred upon the council the right to fix the price to be 
 charged for gas, where the city itself was a consumer, to 
 
 1. City of Chillicothe vs. Logan, etc., Gas Co., 8 Ohio N. P., 88. 
 
 2. Capital City Gas Light Co. vs. Des Homes, 72 Fed. R., 829. 
 
 3. Cleveland Gas Light & Coke Co. vs. Cleveland, 71 Fed. Rep., 
 
 610; Capital City Gas Light Co. vs. Des Moines, 72 Fed. R., 
 829. 
 
 4. Chicago, Milwaukee & St. P. Ry. Co. vs. Minnesota, 134 U. S., 
 
 418; Aqua Pura Co. vs. Mayor of Las Vegas, N. M., 
 ; 60 Pac., 208; 50 L. R. A., 224. 
 
Reasonable Hates. 277 
 
 the extent of five or six thousand dollars per month, and 
 the other consumers were the inhabitants of the city, the 
 court held that the proposition was outrageous and 
 monstrous if the state conferred such a right on the cit} 7 , 
 as no law could be regarded as fair which gives a pur- 
 chaser a right to say what price he shall pay for a conv 
 modity, and such a law is unconstitutional. * 
 
 The same rule was laid down when the legislature 
 delegated the right to fix the price to be paid for water 
 by a city and its inhabitants, and the law was declared 
 void, as an interested party had no right to fix the price, 
 but the court held that, if the law provided for a judicial 
 investigation, the law might be legal. 2 A city may fix 
 the price of gas or water, although it is a consumer, is 
 now firmly established. 3 
 
 SEC. 25. RATES MUST BE REASONABLE; UNREA, 
 SONABLE LOW RATE DEPRIVES A PERSON OP HlS PROP- 
 ERTY WITHOUT DUE PROCESS OF LAW, AND THE STATE 
 OR A MUNICIPALITY HAS NO SUCH POWER SUCH QUES- 
 TIONS ARE FEDERAL. Since authority may be given by 
 the state to cities to fix the price of gas, so an ordi- 
 nance passed or regulation made is regarded as a state 
 law, hence, when an ordinance fixes the price so low that 
 it has the effect of depriving a person of his property 
 without due process of law, and the vendor of gas to 
 the public is thus deprived of the right to charge for 
 gas what it is reasonably worth by a state law, the ordi- 
 nance is invalid, as no state can pass a law so as to- 
 deprive a person of his property without due process of 
 law, and to deprive a person of the use of his property 
 is to deprive him of the property itself. 4 So where the 
 price is fixed so low by an ordinance that running ex- 
 
 1. Cleveland Gas Light & Coke Co. vs. Cleveland, 71 Fed. Rep., 
 
 610; See Capital City Gas Light Co. vs. Des Moines, 72 Fed. 
 R.,829. 
 
 2. Aqua Pura Co. vs. Mayor Las Vegas, 60 Pac., 208; N. M., 
 
 ; 50 L. R. A., 224. 
 
 3. Sect. 28, infra. 
 
 4. Capital City Gas & Light Co. vs. Des Moines, 72 Fed. R., 829; 
 
 New Memphis Gas & Light Co. vs. Memphis (C. C. W. D. 
 Tenn.),72Fed. R.,952. 
 
278 State May Regulate Price. 
 
 penses cannot be paid and a reasonable profit made on 
 the money invested in the enterprise, the property is 
 thereby rendered worthless and such an ordinance is 
 unreasonable and void. 1 The legislature itself, though 
 it has the power to fix the rates to be charged by gas 
 companies, has no power to fix the rates so low as to 
 deprive the company of all profits from its business; and, 
 where a gas company has a charter from the state, which 
 may be altered and amended by the legislature, the legis- 
 lature has no power to prevent the company from charg- 
 ing reasonable rates for the gas furnished to consum 
 rs; and a law passed which has the effect of rendering 
 the property a burden on the owners, because the rates 
 are unreasonable, the law is void, as depriving a person 
 of property without due process of law. 2 The United 
 States court, in holding that the legislature had the right 
 to fix reasonable rates without a judicial investigation, 
 did so with a reservation, that the power to adjust, regu- 
 late and limit the price to be charged is not without a 
 limit, and is not a power to destroy, or the power to 
 compel the doing of services without reward, or to take 
 private property for private use without just compensa- 
 tion or without due process of law. 8 So when a question 
 as to the reasonableness of the rates, or whether they 
 have the effect of depriving a person of his property 
 without just compensation, is a Federal question and one 
 which calls for judicial investigation, though the legis- 
 lature fixed the rates to be charged. 4 
 
 SEC. 26. STATE MAY REGULATE THE PRICE TO BE 
 CHARGED WHEN IT RESERVES THE RIGHT TO AMEND THE 
 CHARTER OR THE LAW UNDER WHICH A GAS COMPANY 
 WAS ORGANIZED AND MAY DELEGATE THE RIGHT TO A 
 
 1. Indianapolis Gas Co. vs. Indianapolis, 82 Fed. R., 245. 
 
 2. New Memphis Gas & Light Co. vs. Memphis (C. C. W. D. 
 
 Te.nn.),72Fed. R., 952. 
 
 3. Dow vs. Biedleman, 125 U. S., 680; Munn vs. Illinois, 94 U. 
 
 S., 113. 
 
 4. New Memphis Gas Light & Coke Co. vs. Memphis, 72 Fed. R., 
 
 952. 
 
May Delegate Right to the City Council. 279 
 
 CITY COUNCIL; AND MAY Fix THE PRICE THOUGH THE 
 LAW WAS SILENT ON THE POINT WHEN THE COMPANY WAS 
 INCORPORATED AND THE CITY COUNCIL MAY Fix THE 
 PRICE WHEN RESERVED IN THE LAW OR CHARTER. 
 Where the legislature reserved the right to amend the 
 laws by which a gas company was allowed to charge" 
 reasonable rates, the legislature, in giving a city the 
 power to fix the rates, does not deprive the gas company 
 of any right, if the rate fixed by the city is reasonable. 1 
 And where the ordinance by which a gas company was 
 allowed to place its pipes in the streets of a city pro- 
 vided that the city council had and reserved the right to 
 make the rates after a period of ten years; and there 
 was an acceptance of the ordinance by a gas company, 
 the passage of the ordinance and its acceptance amount 
 to a contract between the city and the gas company; and 
 the city, through its council, has a right to fix the price 
 and the gas company cannot complain unless the city 
 was guilty of what amounts to a fraud in fixing the price 
 of gas at too low a rate. " And, where a gas company re- 
 ceives its charter, when no law is in force giving the gas 
 company a right to fix the price of gas, and the charter 
 of the company gives no right to fix the price, a city has 
 the power to fix the price when the city is thereafter 
 authorized by law to fix the price to be paid, and may 
 compel the company by mandamus to furnish the gas at 
 the price so fixed. 3 So where the ordinance by which a 
 gas company was permitted to engage in the business of 
 furnishing gas provided that the price of gas may there- 
 after be regulated upon such terms as the gas company 
 and the city may agree upon, and the gas company 
 refuses to act, a court will compel the company to do as 
 the ordinance provides in respect to the regulation of 
 the price. 4 
 
 1. Capital City Gas Light Co. vs Des Moines, 72 Fed. Rep., 829. 
 
 2. Logansport & W. Va. Gas Co. vs. Peru (C. C. D. Ind.),89 
 
 Fed. R., 185. 
 
 3. Zanesville Gas Light Co. vs. Zanesville, 47 Ohio St., 1; 23 N. 
 
 E., 55; Same vs. Same, 47 Ohio, 35. 
 
 4. City of Toledo vs. Northwestern Ohio Nat. Gas. Co., 6 Ohio 
 
 N. P., 531. 
 
280 Receiver Bound by the Rates. 
 
 So where a city ordinance was enacted giving a gas 
 company the right to lay its pipes on the streets of a city 
 for a period of twenty years, and also providing that the 
 company would be allowed to charge a certain price for 
 gas which was passed through gas meters, the ordinance 
 was passed by the council in its legislative capacity and 
 was not a contract between the city and the gas company, 
 and the ordinance was a valid regulation of the price to 
 be charged for gas where cities and towns were given the 
 power to regulate the price to be charged by the vendors 
 of gas and also the price to be charged for meter rents, 
 although the legislature may subsequently deprive the 
 city of the power to regulate the price to be charged by 
 the gas company, but the ordinance was binding as long 
 as the city gave the company the right to maintain its 
 pipes on the streets, and the regulation was valid although 
 another section of the statute provided that the city 
 council had 'a right to fix by contract the minimum price 
 of gas for a period not to exceed ten years, where the 
 gas was to be furnished to the people of the city, since 
 the city passed the ordinance under its legislative pow- 
 ers and not under its power to contract, and the ordinance 
 was binding on the receiver of the gas company. 1 So 
 where an ordinance is enacted in pursuance of a law au- 
 thorizing it, by which the minimum price, as well as the 
 maximum price, was fixed, and the gas company accepted 
 the ordinance, and the gas company need not furnish gas 
 below the minimum price fixed by ordinance for a certain 
 period and the period during which the gas company was 
 not obliged to furnish gas below the minimum price had 
 expired, a receiver for the gas company cannot raise the 
 price of gas beyond the maximum price fixed by the 
 ordinance, where the city had the right to regulate the 
 price of gas from time to time, and the city does not see 
 fit to raise the price though the maximum price fixed, 
 is in sufficient as then operated. * So where the charter of 
 
 1. Manhattan Trust Co. vs. Dayton, 59 Fed. Rep., 327; 16 U. S. 
 
 App.,588. 
 
 2. Manhattan Trust Co. vs. Dayton Natural Gas Co., (C. C. S. 
 
 D. 0.), 55 Fed. R., 181. 
 
Binding Effect of Contract. 281 
 
 gas company was silent as to the right of the company to 
 fix the price of gas, the legislature may thereafter fix 
 the price; 1 and if such regulation can be made and no 
 contract obligation between the company and the state 
 was involved, the regulation is valid. 2 
 
 SEC. 27. COURTS WHICH DENY THE RIGHT TO Fix 
 RATES WHEN NOT RESERVED IN THE LAW GRANTING THE 
 FRANCHISE THE CONTRARY DOCTRINE IN OTHER COURTS 
 RIGHT TO Fix RATES A CONTINUING ONE RELIEF IN 
 COURT FROM UNREASONABLE RATES. It has been held 
 that a state has no right to regulate the price of gas, 
 when the state granted a charter to the company without 
 any reservation of the right to regulate the price, and 
 the charter provided that the company may charge reas- 
 onable rates. 3 So where a city and a gas company agreed 
 as to what price should be charged for gas, and it was 
 within the power of the parties to make the contract, a 
 statute thereafter enacted cannot affect the prices agreed 
 upon in the contract until the expiration of the con- 
 tract. 4 And the right to make a contract agreeing upon 
 the price to be paid for gas does not come within the 
 police power of the state, and an irrevocable contract as 
 to such prices can be made, though if it came within the 
 police power it could not be made. 5 And where the 
 charter specifies a maximum and a minimum price which 
 may be charged by the company, it is within the power 
 of the city to fix the price intermediate between the max- 
 imun and minimum, and the legislature has no power to 
 change the price as agreed upon by the company and 
 the city. 6 And where there is no statute prohibiting a 
 
 1. State Atty. Gen. vs. Columbus Gas Light Co., 34 Ohio St., 
 
 572. 
 
 2. Toledo vs. Northwestern Ohio Nat. Gas Co., 5 Ohio C. C.,557. 
 
 3. Cleveland Gas Light Co. vs. Cleveland (C. C. W. D. 0.), 71 
 
 Fed. Rep., 610. 
 
 4. Toledo vs. Northwestern Ohio Nat. Gas Co., 5 Ohio C. C., 557. 
 
 5. State, St. Louis vs. Laclede Gas Light Co., 102 Mo., 472; 14 
 
 S. W., 974. 
 
 6. State, St. Louis vs. Laclede Gas Co., 102 Mo., 472; 14 S. W., 
 
 974. 
 
282 When the Court May Fix Hates. 
 
 city and a gas company from entering- into an agreement 
 as to the price of gas and the ordinance provided that 
 the price shall be fixed as the parties may mutually agree 
 from time to time, the agreement is binding on the par- 
 ties until the legislature deprives the city of the power 
 to make such an agreement. 1 So where the ordinance 
 by which a company acquired right to lay its pipes on 
 the street limited the price the company can charge per- 
 sons up to the limit, but the company cannot go above 
 the maximum price allowed. * A gas company which re- 
 ceives its charter from the state and the state reserved 
 no right to limit the charges which the gas company can 
 make, cannot charge excessive prices, since the consumer 
 has the right to invoke the courts for protection against 
 unreasonable charges, but where there is a legally con- 
 stituted body to fix rates provided by statute the court 
 will not fix the rates until such body has acted upon the 
 matter. 3 It may also be stated in this connection that 
 some courts hold that the state cannot delegate the city 
 council of a city the right to fix the rates to be charged 
 for ga for the reason the city is a consumer of gas, as 
 well as the members of the city council, and are therefore 
 interested parties; but other courts have held that this 
 contention is not of any force, because if the contention 
 was valid it is destructive of the doctrine, in its entirety, 
 that the state is possessed of power to restrict within 
 reasonable limits the charges of quasi public corpora- 
 tions, for the state acts through the members of the gen- 
 eral assembly, who are the agents and representatives 
 of those who are to be benefited by such restrictions. 
 The suggestions omit from consideration the controlling 
 fact, that quasi public corporations are created by the 
 state for the good of the public, to serve the public and 
 they accept corporate rights subject to the power re- 
 tained by their creator to regulate and control them for 
 
 1. Toledo vs. Northwestern Ohio Nat. Gas Co., 5 Ohio C. C., 557. 
 
 2. Westfield Gas & Min. Co. vs. Mendenhall, 142 Ind., 583; 41 N. 
 
 E., 1033. 
 
 3. Griffin vs. Goldsboro Water Co., 122 N.C., 206; 30 S.E., 319. 
 
Delegation of the Power to Fix Rates. 283 
 
 public good. l The right of the legislature to delegate to 
 the city council the power to fix rates has been affirmed 
 by the Supreme Court of the United States on a writ of 
 error from the state Supreme Court of Illinois; and, in a 
 case where the point was made, that the city council 
 could not fix the rates because the councilmen could not^ 
 fix the rate since they were interested as consumers, but 
 the court upheld the right of the city council to fix the 
 rates. a It may also be stated in this connection that 
 some courts hold that because the state charter does not 
 reserve the right to fix the rates the state is deprived of 
 the power thereafter to fix the rates to be charged. The 
 ruling has not been upheld in later cases, since a com- 
 pany using the streets of a city and accepting a franchise 
 from the state is bound to furnish to the public gas, at 
 reasonable rates, because such corporations are called 
 into being by the state to serve the public, and the state 
 has the power to compel such corporations to do their 
 duty. And where a charter provided that a company 
 may charge reasonable rates the state has a right to say 
 what are reasonable rates; and, where an ordinance 
 which gave a company a franchise for thirty years and 
 fixed a schedule of rates for that period, the ordinance 
 is not a contract between the company and the city, but 
 a simple declaration that the rates were reasonable for 
 the time being; and the right of the state, or the city, 
 when empowered by the state to fix the rates, is a con- 
 tinuing one for the right is a function of government and 
 cannot be granted away under doubtful provision in char- 
 ters, statutes, or ordinances. 3 
 
 SEC. 28. CITIES AND TOWNS HAVE No RIGHT TO 
 REGULATE THE PRICE OF GAS UNLESS AUTHORIZED BY 
 THE LEGISLATURE, THOUGH A GAS COMPANY AND A CITY 
 MAY MUTUALLY AGREE ON A PRICE TO BE PAID IF THERE 
 
 1. Osborne vs. San Diego Land & Town Co., 178 U. S., 22. 
 
 2. Rogers Park Water Co. vs. Fergus, 178 111., 571; 53 N. E., 363; 
 
 S. C. Rogers Park Water Co. vs. Fergus, 180 U. S., 624. 
 
 3. Rogers Park Water Works, Fergus 178 111., 571; affirmed 180 
 
 U. S., 624. 
 
284 Legislative Authority Must be Given to Cities. 
 
 is NO LAW AUTHORIZING THE CITY TO Fix THE PRICE, 
 BUT THE CONTRACT is NOT BINDING AFTER THE LEGIS- 
 LATURE GIVES THE CITY A POWER TO Fix THE PRICE. 
 Independent of statutes, cities and towns have no power 
 to regulate the price for which gas shall be furnished to 
 the city or town or its inhabitants. * So where a statute 
 gave the trustees of towns and common councils of cities, 
 the power to regulate, by ordinance, the safe supply, dis- 
 tribution and consumption of natural gas, and the per- 
 sons, corporations, or companies which supply the gas 
 are to pay a reasonable license for the use of the streets, 
 the statute gave no power to a city or town to regulate 
 the price of gas. 2 So, also, under a statute empowering 
 cities to light streets and a power to contract with any 
 person to erect gas works to light the streets, or, under 
 a statute, providing that any gas company may manu- 
 facture and sell to any town or village its gas, as may 
 be required by such town or village, or by private per- 
 sons, and such corporations, or persons, shall have power 
 to lay its pipes on the streets, upon the town or city giv- 
 ing consent, the statute does not authorize a city or town 
 to fix the price for gas and without the statute giving 
 such power, such towns or cities have no right to regu- 
 late the price; 3 but it was once held, by a divided court, 
 that a city had the power without express statutory au- 
 thority, to fix the price of gas, but the case has since 
 been overruled. 4 So where a city council was authorized 
 to adopt rules governing the price of gas and gave the 
 board of gas trustees the right to fix the price, such trus- 
 tees have no power to establish the price to be paid for 
 gas without the council first adopting rules by which the 
 price may be fixed. 5 So where a city which adopts a 
 charter under the constitution and laws of the state for 
 
 1. Lewisville Natural Gas Co. vs. State, Reynols, 135 Ind., 49; 
 
 34 N. E., 702; 21 L. R. A., 734. 
 
 2. Lewisville Nat. Gas Co. vs. State, Reynols, 135 Ind., 49. 
 
 3. Be Pryor, 55 Kan., 724; 41 Pac., 958; 29 L. R. A., 398. 
 
 4. Rushville vs. Rushville Nat. Gas Co., 132 Ind., 675; 28 N. E., 
 
 853. 
 
 5. Foster vs. Findlay, 5 Ohio C. C., 455. 
 
What Considered in Fixing Eates. 285 
 
 the purpose of their own government, and the laws of 
 the state provided that the charter must be consistent 
 with the constitution, and laws of the state, such a city 
 cannot insert in the charter a power authorizing- it to fix 
 the prices of gas. * So where the legislature had passed 
 no law regulating the price of gas or water, and had not 
 passed any law authorizing the cities and towns to regu- 
 late the price of gas or water, but gave cities and towns 
 a right to provide for the same, a city or town cannot 
 make a binding contract for the price to be paid for the 
 future supply; and where such a contract was attempted 
 to be made and the legislature thereafter authorizes the 
 cities and towns to regulate the prices to be paid, such 
 cities and towns may reduce the price, notwithstanding 
 the city had made a contract to pay a higher price and 
 such contract had not yet expired, because the cities and 
 towns had no power to make such contract, unless ex- 
 press authority was first given them by the legislature, 
 hence the contract was not binding where the authority 
 was not given. 8 And it has been held that where the 
 city council undertakes to regulate gas companies and 
 there was no law enacted by the legislature authorizing 
 the city to do so, the ordinance cannot be regarded as a 
 state law, consequently the ordinance will not come 
 within the provision of the constitution of the United 
 States that no state shall pass a law impairing the obli 
 gation of contracts. 3 
 
 SEC. 29. IN FIXING RATES, THE COST OF THE PLANT, 
 THE BONDS ISSUED AND A FAIR DIVIDEND AND THE EX- 
 PENSES IN OPERATING THE PLANT MUST BE CONSIDERED 
 INTEREST ON BONDS BONA FIDE ISSUED, OR STOCK 
 REPRESENTING THE ACTUAL COST ONLY ARE ALLOWED, 
 
 1. Tacoma Gas & Electric Light Co. vs. Tacoma, 14 Wash., 288; 
 
 44 Pac.,655. 
 
 2. Freeport Water Company vs. Freeport, 186 111., 179; affirmed 
 
 in 180 U. S., 587; Rogers Park Water Co. vs. Fergus, 178 
 111., 571; affirmed in 180 U. S., 624; Danville Water Co. vs' 
 Danville, 186 111., 179. 
 
 3. Hamilton Gas Light Co. vs. Hamilton, 146 U. S., 258. 
 
286 Elements of Cost. 
 
 THE PRICE PAID FOR PROPERTY NOT USED CANNOT BE 
 CONSIDERED, NOR RENT PAID FOR SUCH PROPERTY, AND 
 WHEN THE EARNINGS ALREADY PAID THE COST OF THE 
 PLANT, THAT MUST BE CONSIDERED. The courts in as- 
 certaining whether a law or ordinance fixes the price of 
 gas at a reasonable rate, must take into consideration, 
 whether the price to be charged will permit the company 
 to pay the expenses, which the company legally incurred 
 in operating the gas system, and the interest on bonds, 
 if any, provided the bonds were issued in good faith, in 
 raising money which went into the system, and will con- 
 sider that owners of the plant are entitled to reasonable 
 returns for the money invested in the gas plant. 1 So 
 where the charter of a company runs for a period of 
 twenty years, and, in granting the company the right to 
 use the streets, the city council reserved the right to de- 
 termine the price to be paid for gas the last ten years, if 
 the net earnings for the first ten years paid the cost of 
 the plant, the council, in arriving at the rate, should 
 take that fact into consideration and fix the rates ac- 
 cordingly. 2 So, in considering the value of the property, 
 or the cost of the plant, rent paid for land, which the 
 company controls, cannot be considered as an expense, 
 where the company does not use nor occupy the land, in 
 connectiod with the plant, and where the company is- 
 sues bonds on the system to pay for patents, which the 
 company does not need in its business, or for patents 
 which have expired, the bonds issued for such purposes 
 cannot be considered as part of the cost of the plant. 8 
 The fair and reasonable cost of the plant will only be con- 
 sidered, so where money was spent lavishly, and waste- 
 fully, the cost will be reduced to what the plant ought to 
 reasonably cost, and, since the bonds or stock may be 
 
 1. New Memphis Gas & Light Co., 72 Fed. R., 952. 
 
 2. Logansport & W. Va. Gas Co. vs. Peru (C. C. D. Ind.), 89 
 
 Fed. R., 185. 
 
 3. Capital City Gas Light Co. vs. Des Moines, 72 Fed. R., 829; 
 
 Griffin vs. Goldsboro Water Co., 122 N. C., 206; 30 S.E., 
 319. 
 
When Value of Gas May be Recovered. 287 
 
 watered, the public need not pay interest on such ex- 
 penditures. 1 
 
 SEC. 30. VALUE OF GAS FURNISHED CAN BE RECOV- 
 ERED FROM A ClTY ON AN IMPLIED CONTRACT No LIM- 
 ITATION LAW RUNS WHERE THE TAX WAS COLLECTED 
 SPECIALLY TO PAY FOR GAS THE VALUE OF GAS C^VN 
 BE RECOVERED FROM THE OWNER OF A BUILDING WHEN 
 DELIVERED, THOUGH THE GAS WAS CONSUMED BY A 
 THIRD PERSON. A gas company which furnishes gas to 
 a city can recover the price from the city, even if there 
 is no express contract between the city and the com- 
 pany, though the charter of the city provides that all 
 contracts between the city and third persons must be in 
 writing, as the recovery may be had on an implied con- 
 tract.* And where a gas company was bound to furnish 
 gas to all persons who apply for it, a city cannot defeat 
 the payment of the price of gas furnished to the city be- 
 cause the mayor of the city was interested as a stock- 
 holder and officer in the gas company, since the price or 
 value of the gas furnished can be recovered on an implied 
 contract. 3 So where gas is furnished on an implied con- 
 tract and the period of the Statute of Limitations has run, 
 the statute is no defense to a suit for the recovery of the 
 price, where the charter provides, that all moneys levied 
 for a special purpose shall be set apart for that purpose 
 and the taxes have been levied and collected to pay for 
 the gas, since the holder of the money is an express trus- 
 tee of the money collected to pay the charges for light- 
 ing. 4 So a gas company may recover the market value 
 of gas used by a consumer for lighting purposes, though 
 such consumer has a contract with the gas company to 
 use gas for fuel and the price charged for fuel is lower 
 than the price charged, or market value of gas as an 
 
 1. Missouri Pac. Ry. vs. Smith, 60 Ark., 241; Chicago & G. T. 
 
 Ry. vs. Wellman, 143 U. S., 339; Covington & L. Turnpk. 
 Road vs. Sanford, 164 U. S., 578. 
 
 2. Memphis Gas Light Co. vs. Memphis, 93 Term., 612; 30S.W.,25. 
 
 3. Capital City Gas Co. vs. Young, 109 Cal., 140; 29 L. R. A., 463. 
 
 4. Memphis Gas Light Co. vs. Memphis, 93 Term., 612; 30S.W.,2o. 
 
288 Discrimination in Price. 
 
 illuminant; 1 and a gas company can recover the price of 
 gas from the owner of the premises where the company 
 delivered the gas through its meter to the premises, al- 
 though a third person received the benefit of the gas, 
 when no negligence can be charged to the company. * And 
 a gas company can recover the reasonable value of gas 
 or a reasonable price for the cost of production and de- 
 livery, although there is a contract between the gas com- 
 pany and the consumer, that gas will be furnished at the 
 price provided in the contract so long as the company 
 can produce gas at a reasonable cost, where the supply 
 of gas has decreased to such an extent that the cost of 
 production has also increased and the gas company would 
 not only make no profits, but would also become insol- 
 vent by furnishing gas at the price provided in the con- 
 tract. 8 
 
 SEC. 31. MORE CANNOT BE CHARGED FOR GAS WHEN 
 USED FOR ILLUMINATING THAN FOR FUEL PURPOSES. 
 A company was chartered for the purpose of producing, 
 transporting and supplying natural gas for heat, light 
 and other purposes and was engaged in supplying gas, 
 both for heat and light, and undertook to regulate the 
 price of gas to a consumer according to the use to which 
 the gas was put by the consumer. The court held that, 
 as far as this particular case was concerned, the gas 
 company was regarded as incorporated for the purpose 
 of supplying heat and light, and its corporate powers 
 were measured by its corporate duties, and one of these 
 duties was that a corporation shall perform its duties 
 without individual discrimination to any who may desire 
 its services. A regulation which undertakes to discrim- 
 inate in price, according to the use to which gas was put 
 by the consumer, and measure the price by what the con- 
 sumer would have to pay for a substitute, for one pur- 
 pose or the other, if gas could not be had, is an invalid 
 
 1. Philadelphia Co. vs. Park, 138 Pa., 346; 22 All., 86. 
 
 2. Chauteauvs. St. Louis Gas Light Co., 47 Mo., App. 326. 
 
 3. Cresent Steel Co.vs. Equitable Gas Co., 23 Pitts., L.J.N.S., 316. 
 
Construction of an Ordinance as to Price. 289 
 
 regulation. 1 The following- notice was given to con- 
 sumers of gas, to- wit: 
 
 "Beginning October 1st, 1897, the price for natural 
 gas, when used for fuel and light, will be 20 cents per 
 1,000 cubic feet. When used for fuel only the rate will 
 be the same as heretofore, 12| cents per 1,000 cubic feeJt._ 
 RICHMOND NATURAL GAS COMPANY." 
 
 A consumer who had used gas both for fuel and 
 lighting purposes tendered the gas company the value of 
 the gas at the rate of 12-J- cents per 1,000 cubic feet, and 
 the gas company refused to accept the amount tendered, 
 but demanded pay at the rate of 20 cents per 1,000 cubic 
 feet, and the consumer also offered to put in separate 
 meters and pay at the rate of 20 cents per 1,000 cubic feet 
 for light and 12^ for fuel, but the company refused to per- 
 mit him to put in the meters and threatened him that if 
 the meters were put in or the gas bill was not paid the 
 gas would be turned off, and the consumer brought an 
 action to enjoin the company from shutting off the gas. 
 
 The gas company was held to be engaged in a busi- 
 ness which was public in its nature, and was a creature 
 of the law, and it was granted certain privileges, not 
 only for its own private benefit, but also for the benefit 
 and good of the public. The regulation was held to be 
 unreasonable, arbitrary and unjust and was therefore 
 void. 8 
 
 SEC. 32. CONSTRUCTION OF AN ORDINANCE AS TO 
 PRICE OF GAS FOR FUEL AND ILLUMINATING PURPOSES. 
 An ordinance giving to a party and his assigns the right 
 to lay pipe and furnish gas had the following section 
 regulating the price to be charged: "Said Hanks & Mc- 
 Clary or their assigns shall not charge and collect more 
 than one dollar and twenty-five cents ($1.25) per thou- 
 sand feet for gas for illuminating purposes, not more 
 than ninety (90) cents per thousand cubic feet for gas for 
 
 1. Bailey vs. Fayette Fuel Gas Co., 193 Pa., 175; 44 AtL, 175. 
 
 2. Richmond Natural Gas Co. vs. Clawson, 155 Ind., 659; 58 N. 
 
 E.,1049; 51 L. R. A., 744. 
 
290 Estopped from Advancing Price. 
 
 heating" purposes, with a rebate of twenty (20) per cent, 
 on said above prices in case of payment on or before the 
 twelfth (12th) of the month next succeeding 1 that in 
 which the gas is used by the consumers thereof. When 
 said Hank & McClary or their assigns shall furnish 
 illuminating gas, then said Hank & McClary or their 
 assigns shall supply gas light under uniform and suffi- 
 cient pressure, * * * and the quality of the same 
 shall be as nearly uniform as practicable, averaging for 
 any one month not less than sixteen (16) sperm candles, 
 burning one hundred and twenty grams per hour, to be 
 determined by authorized phalometrical tests, a five (5) 
 foot burner being 1 used." The party to whom the right 
 was given, and his assigns, for a time furnished gas 
 only for fuel and heating purposes, and then engaged in 
 the manufacture of gas both for light and fuel, and 
 charged $1.00 per thousand cubic feet for the former and 
 72 cents for the latter, and the gas was manufactured to 
 be used for light, but permitted it to be used for both 
 purposes. The company was thereafter merged into an- 
 other company under permission from the legislature, 
 and the consolidated company raised the price of gas 
 for all purposes to $1 00 per 1,000 cubic feet because the 
 gas thus furnished was illuminating gas and was of a 
 higher grade than fuel gas, and failed to furnish fuel 
 gas to certain consumers other than the illuminating 
 gas, but promised to furnish such gas in the future. The 
 court in giving construction to this ordinance held that 
 the clear intent of the ordinance was that the company 
 was not required to furnish a high grade illuminating 
 gas for fuel purposes. The fact that the original com- 
 pany did so did not estop the consolidated company 
 from charging the price stipulated to be charged for 
 illuminating gas. Nor was the consolidated company 
 prohibited from charging such price, although the old 
 company charged only the rates provided in the ordin- 
 ance, and the law allowing the companies to be consoli- 
 dated provided: "Such corporation shall not increase 
 the price charged by it for gas of the quality furnished 
 
Statute Permitting Consolidation. 291 
 
 to consumers during any part of the year immediately 
 preceding such purchase or lease or such consolidation 
 and merger." This applied only to the company into 
 which another company had been merged. 1 
 
 1. Peoples Gas Light Co. vs. Hale, 94 111. App., 406. 
 
DAMAGES CAUSED BY GAS. 
 
 CHAPTER XVII. 
 
 SECTION 1. CARE REQUIRED OP GAS COMPANIES. 
 Illuminating" gas is an agent which is dangerous to life 
 and property, so, while it remains on the premises of the 
 manufacturer, or while it is conveyed through the streets 
 in cities- and towns, the owner of the gas is bound to ex- 
 ercise vigilance, so that persons and property shall not 
 be injured thereby. 1 A gas company is bound for the 
 consequences of its neglect, though these consequences 
 were not and could not by ordinary prudence have been 
 anticipated. 2 .To avoid injuring persons and property 
 every caution suggested by experience and the known 
 dangers of gas ought to be taken. 3 Vendors and dealers 
 in gas are required to exercise the highest degree of care 
 to see that no part of their system for the manufacture 
 and transportation .of gas is out of repair, so that the 
 public, or any member thereof, or property may not be 
 placed in danger. Parties engaged in the business of 
 selling gas to the public are engaged in a quasi public 
 business, and they acquire the right to lay their pipes 
 from the state and cities, therefore it is their duty to use 
 the highest degree of care, and "care and diligence should 
 always vary according to the exigencies which require 
 vigilance and attention, conforming in amount and de- 
 gree to ihe 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 
 
 1. Schermer vs. Gas Light Co., 147 N. Y., 529; 42 N. E., 202; 30 
 
 L. R. A., 653; Tiehr vs. Consolidated Gas Co., 65 N. Y. 
 Supp., 10; 51 App. Div., 446. 
 
 2. Oil City Gas Co. vs. Robinson, 99 Pa., 1. 
 
 3. Koelsch vs. Philadelphia Co., 152 Pa., 355; 25 Atl., 522; 18 L, 
 
 R. A., 759. 
 
Due Care Required of Both Parties. 293 
 
 according 1 to the subject matter and the force and danger 
 of the material under the defendant's charge and the cir- 
 cumstances of the case." 1 So where a statute granted 
 natural gas companies the right to lay pipes in the 
 streets and highways and a certain section of the statute 
 provided: "Said company shall be liable for damages^ 
 that may result from the transportation of the same," a 
 duty was imposed upon the company by the statute of 
 absolutely controlling the gas, and the company was 
 liable, although it was guilty of no negligence in permit- 
 ting the gas to escape. 8 So where a gas company sup- 
 plied gas to certain tenants in a building, made up of 
 flats, and other tenants have not applied for it, the gas 
 company owes a duty to the tenants who have not ap- 
 plied for it to see that the gas fixtures, which are capable 
 of being inspected, are in a proper condition to retain 
 the gas. 3 
 
 SEC. 2. DUE CARE ON PLAINTIFF'S PART PRE- 
 SUMPTION OF NEGLIGENCE AGAINST THE DEFENDANT. 
 An action for damages sustained by a child of tender 
 years was brought against a gas company for injuries 
 received from inhaling gas which found its way to the 
 room where the child and his mother were asleep. The 
 evidence showed that there was no gas fixtures in the 
 house, and no gas was found escaping about the place 
 the day before, and it did not appear from the evidence 
 that anything unusual happened. No direct testimony 
 could be had, because the mother had lost her life and the 
 child was too young to testify. The mother and child 
 received their injuries after they had gone to sleep. 
 These facts were sufficient to show due care on the part 
 of the plaintiff. 
 
 The evidence showed that the pipes of the gas com- 
 pany permitted gas to escape near the house occupied by 
 
 1. Holly vs. Boston Gas Light Co., 8 Gray, 129. 
 
 2. Ohio Gas Fuel Co. vs. Andrews, 50 Ohio, 695; 35 N. E., 1059; 
 
 29 L. R. A. ,337. 
 
 3. Schermer vs. Gas Light Co., 147 N. Y., 529; 42 N. E., 202; 30 
 
 L. R. A., 653. 
 
294 Defective Service Pipes. 
 
 the plaintiff and it found its way into the house occupied 
 by the plaintiff. This was held to be evidence of negli- 
 gence, because the pipes were made to contain the gas 
 and conduct it safely, and it was the gas company's duty 
 to see that they were suitable and sufficient and laid in 
 the ground in a proper manner and kept in repair. So 
 an instruction is correct which tells the jury: That there 
 was evidence enough of want of proper care on the part 
 of the defendant to make it responsible on the ground 
 that it was bound to conduct its gas in a proper manner; 
 and the fact that the gas escaped was prima facie evi- 
 dence of some neglect on the part of the defendant. l 
 
 A city was the owner of a gas plant and gas was 
 found escaping from one of its mains in one of the streets 
 and the city had notice of the escaping gas for two 
 weeks. The persons who occupied the premises were 
 tenants, and the landlord from whom the tenants rented 
 was told not to light matches in a certain place, but that 
 fact was not communicated to the persons who occupied 
 the premises. One of the persons who occupied the 
 premises entered the place where gas was said to escape 
 and was asphyxiated. The facts were held to present a 
 case of inexcusable and protracted neglect of duty on 
 the part of the city which resulted in the death of a 
 human being. The duty of promptly locating and stop- 
 ping the leak was one that solely devolved upon the city. 
 That was their duty and that alone was a proposition so 
 plain that it required no citation of authorities or argu- 
 ment to support it, and, although the evidence might 
 tend to show contributory negligence, a verdict of a jury 
 would not be disturbed. 2 
 
 SEC. 3. DEFECTIVE SERVICE PIPE AND OTHER AP- 
 PLIANCES WHICH THE GAS COMPANY ASSUMES TO CON- 
 TROL. A person rented a house which had been formerly 
 supplied with natural gas, but just previous to that time 
 the house was vacant and the gas was shut off. The 
 tenant made application for gas and the gas company 
 
 1. Smith vs. Boston Gas Light Co., 129 Mass., 318. 
 
 2. Otterback vs. City of Philadelphia, 161 Pa., Ill; 28 Atl., 991. 
 
Defective Meters. 295 
 
 sent its servant who had shut off the gas to make the 
 connection. The next day a fire was started in a wood 
 stove and an explosion took place and wrecked part of 
 the house and injured the tenant's wife. The gas escaped 
 from a defective pipe of the gas company. The gas com- 
 pany* was held bound to exercise due care when it insi&ts 
 and assumes the duty of making the connections of the 
 house main with its pipes in the street. The fact that 
 the servant applied his nose to the floor, which had 
 openings, to determine whether gas was escaping or not, 
 was not sufficient to show due care, where there were 
 other well known tests which were not used. The ques- 
 tion of due care is for the jury to determine, nor is the 
 gas company relieved from liability where the applica- 
 tion for gas contained the provision: "Neither is it to be 
 held liable for damages to persons or property resulting 
 from explosions, or fire, or for any other damages what- 
 soever resulting or occurring from the use of gas," where 
 the injury was not from the use of gas but from the de- 
 fective closing of the gas pipes. 1 So when a gas com- 
 pany owns and controls the meter put in a house the 
 gas company is liable for damages where the gas escapes 
 from the meter and is set on fire, which destroys the 
 property of the occupant of the house. In such a case 
 the gas company was held bound to maintain its meter 
 in a condition free from the menace of danger to the 
 person and property of others by the exercise of a rea- 
 sonable degree of care, which is measured with the 
 dangerous and explosive nature of gas. The company 
 was bound to ascertain the defect and make all needful 
 repairs. Where the company was notified four weeks 
 before the fire that gas escaped and its servants failed 
 to find the leak, and leaks could be found by ordinary 
 tests, the negligence of the defendant is manifest, and 
 this is true although the servants who made the exam- 
 ination swear that they did their duty in making the 
 test, for the leak was there and they failed to find it, so 
 they were negligent in the performance of the duty im- 
 
 1. Bastian vs. Keystone Gas Co., 50 N. Y. Supp., 537. 
 
296 Work Voluntarily Done by Gas Companies. 
 
 posed upon the company. 1 So where a person was sup- 
 plied with gas by a certain gas company and he wished 
 to have a drop light placed over his desk, and the gas 
 company volunteered to do the work free of charge and 
 sent a person to do the work, and the servant performed 
 the work and then left the place and about an hour 
 later the servant returned and was told that gas leaked 
 and the servant applied a match to ascertain the leak 
 and an explosion followed, the gas company was liable. 
 The acts of the servant were held to be the acts of the 
 master, and with respect to the defense that the com- 
 pany was a gratuitous bailee and would be liable only 
 for gross negligence, the court said: "Whatever tech- 
 nical relations existed between the parties respecting 
 the particular job, the defendant was bound to exercise 
 the care which the nature of the work required. Gas is 
 explosive and leaks in pipes are apt to cause ignition of 
 escaping gas and produce serious fires, and a higher de- 
 gree of care and vigilance is required in dealing with a 
 dangerous agency than in the ordinary affairs of life which 
 involve little or no risk to life or property." The gas 
 company was responsible for the acts of the servant, 
 and as he knew that "sand holes" might exist in pipes 
 and he applied a match when his attention was called 
 to the smell of gas, and this caused the resulting injury. 
 Such conduct on the part of one knowing the con- 
 sequences was negligent and made the gas company 
 liable. 2 
 
 So where a leak took place in a house and the gas 
 company sent a servant to repair the leak, and the serv- 
 ant examined the fixtures and said the leak was in the 
 chandelier and said he would make the needed repairs, 
 but on the following night the room where the leak was 
 was occupied and the gas leaked from the defective 
 chandelier and injured an occupant of the room, and 
 thereafter the chandelier was taken down and examined 
 
 1. Anderson vs. Standard Gas Light Co., 40 N. Y. Supp., 671. 
 
 2. German Insurance Co. vs. Standard Gas Light Co., 70 N. Y. 
 
 Supp., 384. 
 
Pipes Under Consumers Control. 297 
 
 and was found to be defective, the gas company was 
 liable because when it undertook to find the leak and 
 stop it, the gas company was bound to do the work with 
 reasonable care. The facts showed that the work was 
 not done with reasonable care, but negligently, and the 
 injuries resulted from the want of due care on the part, 
 of the gas company. * 
 
 SEC. 4. ESCAPE OF GAS THROUGH PIPES NOT CON- 
 TROLLED BY A GAS COMPANY TRESPASS. A gas com- 
 pany is not responsible for injury where the pipes are 
 within the building and not in the control of the com- 
 pany, and the gas was turned on by direction of the 
 owner and the injuries which followed from the escape 
 of gas were done in the part of the building in which 
 the gas was turned on. The fact that the company per- 
 mitted the person who put in the fixtures to turn on the 
 gas will not make the gas company liable when such 
 person was an employe of the consumer and the gas es- 
 caped because the end of a gas pipe which entered the 
 room where the gas exploded was not closed. 8 A gas 
 company is not liable where the gas is turned on by a 
 former employe of the company at the request of the 
 owner when the owner knew that such person did not 
 perform the duties which he formerly did and that an- 
 other person was doing such work for the company. The 
 fact that the person who turned on the gas did the same 
 at other places and he reported to the company, and the 
 company acquiesced in the acts of such person at other 
 places, will not make such person an agent of the com- 
 pany and liable for his acts where the company did not 
 direct him to turn on the gas at the place. 8 So where a 
 gas company had the valves which controlled the high 
 and low pressure mains securely enclosed in a box and 
 an agent of another gas company wishing to take water 
 out of the pipes of the company for which he opened the 
 
 1. Ferguson vs. Boston Gas Light Co., 170 Mass., 182; 49 N. E., 
 
 115. 
 
 2. Flint vs. Gloucester Gas & Light Co., 3 Allen, 343. 
 
 3. Flint vs. Gloucester Gas & Light Co., 9 Allen, 552. 
 
298 Duties Toward Tenants in Apartment Houses. 
 
 gas box by mistake and turned on the gas from a high 
 pressure main to a low pressure main which supplied a 
 house with gas, and the gas fixtures in the house were 
 not sufficient to control the gas and an explosion fol- 
 lowed which wrecked the house and killed the wife of 
 the occupant and injured him, the gas company which 
 owned the gas was not liable for the damages sustained 
 because the act of the agent of the other company was 
 an unlawful interference with its appliances and the gas 
 company was in no way responsible for his acts. * The 
 gas company whose agent unlawfully interfered with 
 the gas box and turned the gas in the high pressure 
 main into the low pressure main is liable for the acts of 
 its agents, although at the time the valves were changed 
 there was but little gas in the mains, because it had been 
 shut off at the time to make needed repairs and the explo- 
 sion followed some time after the gas was turned on by 
 the company. The negligence of the company which 
 owned the pipes and valves is no defense where the 
 negligence of both companies was concurrent. The fact 
 that the meter and regulator were out of order is no de- 
 fense, nor is evidence of these facts competent where 
 the evidence does not show that they contributed to the 
 injury. 2 
 
 SEC. 5. DUTIES TOWARD TENANTS OCCUPYING 
 APARTMENT HOUSES. A woman occupied certain rooms 
 in an apartment house as tenant and a gas company 
 supplied her with gas upon her own request. The gas 
 did not flow well through the pipes and the landlord re- 
 quested the gas company to remedy the defect and the 
 gas company sent its employes to do so. The gas did 
 not flow through the pipes because water had accumu- 
 lated in them, and it was necessary to shut off the gas 
 from the mains and disconnect the service pipe and blow 
 the water out. The woman had no notice that the gas 
 
 1. McKenna vs. Bridge Water Gas Co., 193 Pa., 633; 45 Atl., 52; 
 
 47 L. R. A., 790. 
 
 2. McKenna vs. Citizens Natural Gas Co., 198 Pa., 31; 47 Atl., 
 
 990. 
 
Shutting Off Gas Without Notice to Occupants. 299 
 
 was to be shut off, so she turned on the gas in a radiator 
 and lit it and then laid down and went to sleep, and 
 while so asleep the servants of the gas company discon- 
 nected the pipe and the radiator ceased to burn. When 
 the water had been removed from the pipes the servants 
 of the gas company connected them again and turned on 
 the gas, which flowed freely through the open radiator 
 in the room where the woman was asleep. After the gas 
 was thus turned on, she remained asleep for some time, 
 when she awoke, greatly injured from inhaling the gas. 
 The care required of the gas company in such a case was 
 commensurate with the dangers which might confront 
 an occupant of a room if for any reason the gas might 
 flow into a room without being lighted, which everyone 
 knows might be the means of causing an explosion or 
 might suffocate a person who might be in the room. 
 Whether the gas company used sufficient care by going 
 to the door of the room and* tried to arouse her was suf- 
 ficient to exonerate it from liability was a question for 
 the jury to determine. 1 
 
 So where a building was made up of separate and in- 
 dependent apartments and the apartments were reached 
 by a common hallway from the street, and the building 
 was just constructed and had gas fixtures throughout 
 the building and the gas company owned and controlled 
 the service pipe from the street main to a place within 
 the basement, and a custom had grown up in the city 
 that no gas would be furnished by the gas company 
 until proper plans of the piping had been furnished, and 
 the company would rely on the plans as furnished with- 
 out making an inspection of the pipes and fittings the 
 plans furnished in this case showed the building has sev- 
 eral apartments and would then furnish a meter, and 
 the person desiring the gas would make the connection 
 and turn on the gas, which was controlled by a stop 
 cock in the service pipe, near the curb, on the street, 
 and the gas was so turned on for many years without 
 
 1. Byer vs. Consolidated Gas Co., 44 App. Div., 158; 60 N. Y., 
 Supp., 628. 
 
300 Injury to Volunteers. 
 
 any objection by the company, and after the gas was 
 turned on it flowed freely through an open end of a pipe 
 in the hallway and entered the apartments of women 
 tenants who had not applied for gas and who were not 
 customers of the gas company, and a boy who occupied 
 a lower apartment went to the assistance of the women 
 and in searching for the leak with a candle the gas ex- 
 ploded and the boy lost his life, the facts justified the 
 submission of negligence on the part of the gas company 
 as well as the negligence of the boy in searching for the 
 leak with a light, to a jury. The reasons given by the 
 court were: 
 
 First The women tenants were not customers of the 
 gas company and the presence of gas in the hall was 
 obnoxious to them and the deceased boy was acting in 
 their behalf and for their benefit, although the means he 
 used was his own. 
 
 Second The gas company manufactured and fur- 
 nished an agent for illuminating purposes which might 
 become a most dangerous one, liable to explode, and to 
 injure human beings and property, and whether the gas 
 company used reasonable precautions as might properly 
 be exacted of it before turning on the gas or permitting 
 it to be turned on by some third person, was a question 
 to be determined by a jury. 
 
 Third The fact that the gas was turned on by some 
 third person not connected with the company was no de- 
 fense when the injury was to a person in an apartment 
 which had not applied for gas and was not a consumer. 
 The gas company was required by law to turn on the gas 
 where an application therefor was made, as this was 
 part of the duty imposed by law on the company to 
 supply gas and is liable for the act of a third person in 
 turning on the gas, when the company permitted the 
 applicant to turn on the gas where the plans of the pip- 
 ing were furnished and connection with the meter was 
 made, but would not be liable for the acts of a stranger 
 who might turn on the gas without the knowledge of the 
 company or its consent. 
 
Injury to Tenant. 301 
 
 Fourth The company should inspect the pipes 
 which come out in open space and could insist on mak- 
 ing- such inspection or refuse to furnish gas. 
 
 Fifth The company in making a delivery is not an 
 insurer, but is bound to that degree of care which may 
 be apprehended from the escape of gas. The company _ 
 is not bound, however, to make frequent inspections of 
 the pipes over which the company has no control, but 
 only an inspection must be made when gas is first turned 
 on in the building. 
 
 Sixth The question whether the boy was guilty of 
 contributory negligence in using 1 the light was for the 
 jury to determine. 1 
 
 So where a gas company had been furnishing' gas to 
 an apartment building and one of the apartments became 
 vacant and the company which owned and controlled 
 the meter had it removed but failed to cap the end of the 
 pipe when the meter was removed and the gas flowed 
 through the pipe and found its way to the apartments of 
 a tenant below, the gas company was liable for injuries 
 received by the tenant by reason of an explosion of the 
 gas where the tenant brought a match in contact with it 
 in searching for a leak. The tenant was not barred from 
 a recovery against the gas company because he entered 
 the flats without permission of the landlord, as the gas 
 company could not raise the question of trespass when 
 no trespass was committed against the gas company. 
 The tenant although a graduate in chemistry and an 
 experienced druggist, and he knew the explosive na- 
 ture of gas, was not barred from recovering because he 
 brought a match in contact with the gas when there was 
 an open window in the room where the gas was escaping 
 and he had no reason to apprehend that gas would ac- 
 cumulate in dangerous quantities. The question of neg- 
 legence is for the jury to determine in all such cases, and 
 although the courts in the case of Lanigan v. New York 
 Gas Light Co., 71 N. Y., 29; Consumers Gas Co. v. Crocker, 
 
 1. Schermer vs. Gas Light Co., 147 N. Y., 529; 42 N. E., 202; 30 
 L. R. A., C53. 
 
302 Accumulation oj Gas in Basements. 
 
 82 Md., 113; Oil City Gas Co. v. Robinson, 99 Pa., 1; and 
 Bartlett v. Boston Gas Light Co., 117 Mass., 533, used strong 
 language against the plaintiff's right to recover, yet 
 the court did not say the plaintiff was not entitled to 
 recover but left it to be determined by a jury, so that 
 fact modified the strong language used by the court in 
 the opinions. t 
 
 SEC. 6. ACCUMULATION OF GAS IN CELLARS FROM 
 DEFECTIVE STREET MAINS. A prima facie case of negli- 
 gence is made against a gas company when it appears 
 that an explosion took place and that the plaintiff had 
 his service pipe inspected on the day of the explosion 
 and no leaks were found, and a short time after the ex- 
 plosion took place the gas company's pipes on the street 
 about thirty-six feet distance from the plaintiff's house 
 were dug up and before the pipes were reached a strong 
 smell of gas was perceptible, and a vapor arose above 
 the pipes, and the pipes were fractured or torn apart at 
 the joints and the surface of the street was hard packed, 
 but below the surafce the soil was made up of loose rock 
 and shale and very porous, and that an underground drain 
 extended from the house to the gas main and was open 
 at the end near the gas main, and that gas could not 
 escape from any other place but from the service pipe 
 or gas main. In such a case the gas company cannot 
 escape liability because its pipes were injured by the 
 construction of a sewer. In this regard the court said: 
 "If such injury to a gas main be the natural and prob- 
 able consequence of the construction of a sewer in close 
 proximity to it, and the defendant had knowledge or 
 ought to have knowledge of the construction of this par- 
 ticular sewer, it was its duty to effectually guard against 
 the damage that was likely to be sustained. It could 
 not shift the responsibility upon the municipality or its 
 contractor. Whether the notoriety attending the con- 
 struction of a sewer ought to be sufficient to apprise the 
 gas company with a proper system of inspection, with 
 
 1. Peoples Gas Light Co. vs. Amphlett, 93 111. App., 194- 
 
Notice of the Escape of Gas to the Vendor. 303 
 
 knowledge of a leak in a shorter time than that which 
 elapsed from the construction of the sewer and a discov- 
 ery of the leak after the explosion, was a question for 
 the jury. 1 So where gas escapes from a defective plug" 
 in a gas main through the sewer of the plaintiff and it 
 exploded and wrecked the plaintiff's house, the question^ 
 of negligence of the owner of'gas and contributory neg- 
 ligence on the part of the plaintiff was for the jury. In 
 this case gas was smelled at and near the leak a week or 
 ten days before the explosion, and one of the patrolmen 
 of the city, which owned and supplied the gas, testified 
 to the same fact. The fact that gas was smelled was 
 evidence of a leak which was dangerous and offensive, 
 and it might be supposed that the city had notice from 
 the time which elapsed and from the fact the patrolman 
 knew of it whose duty it was to report such leaks. But 
 if the plaintiff knew its dangers, he should have removed 
 from the house or he would be guilty of contributory 
 negligence. The owner of the house was not bound to 
 know, however, that common air and gas mixed are ex- 
 plosive, as such knowledge is imputed only to experts 
 and chemists or the like calling, and not to men in the 
 ordinary walks of life. Nor was such person bound to 
 keep his sewer in good repair so that gas could not reach 
 his house through it, as the sewer was not constructed 
 with the view of shutting out gas which was permitted 
 to escape from gas mains.* So where a city constructed 
 a sewer parallel with a gas main and between the main 
 and buildings, supplied with gas, and that the sewer 
 was put along the line of an old sewer but deeper, and 
 in putting down the sewer the trench was dug below the 
 service pipes that extended from the main to the build- 
 ings, abutting on the street, and the service pipes crossed 
 the sewer and were broken because large lumps of frozen 
 earth and rock were thrown into the trench, and the 
 frozen earth thus thrown into the sewer thawed and car- 
 ried the service pipes down with it, and the pipe became 
 
 1. Koelsch vs. Philadelphia, 152 Pa., 355; 18 L. R. A., 759. 
 
 2. Kibele vs. Philadelphia, 105 Pa., St. 41. 
 
304 Injuries to Persons on the Street. 
 
 displaced and broken, the vendor was held liable for dam- 
 ages to a building* resulting 1 from an explosion of gas 
 which escaped from the service pipes through the ground 
 and the old sewer connection to the basement of a build- 
 ing" where it exploded. The company was liable without 
 notice if the defects were in the pipes, or if the breaks 
 resulted from the manner of putting in the pipes. If the 
 injuries resulted from the manner the trench was filled 
 by the city the gas company was bound to see that the 
 trench was properly filled so that its pipes were not in- 
 jured, and was bound to know that the sewer crossed the 
 service pipes and that injury would result to the pipes 
 from the manner the trench was filled. The law exacts 
 of the company such care and caution in the location, 
 structure and repair of its pipes as is commensurate with 
 the dangerous commodity in which it deals, and is held 
 to strict account for all damages, even though the city 
 was negligent in filling the , trench, for the city had a 
 right to build the sewer, and a duty rested upon the gas 
 company to protect its pipes. 1 
 
 So where a person who sustained injuries had no 
 notice that gas was escaping and the gas company had 
 notice that gas was escaping, a verdict by a jury will not 
 be set aside, although the only evidence to show negli- 
 gence was that a former occupant of the house where 
 the explosion occurred smelled gas about a year before 
 and the smell continued up to about the time of the ex- 
 plosion.* 
 
 SEC. 7. INJURIES TO PERSONS ON STREETS AND 
 HIGHWAYS INSTRUCTIONS. In an action against a gas 
 company Ihe proof showed that an explosion of illumi- 
 nating gas took place on a street and that it had accum- 
 ulated in a sewer manhole, and that some time prior the 
 smell of gas was found near the place, and that after the 
 explosion the gas company's pipes were found broken, 
 and after the pipes were repaired the smell of gas ceased, 
 and that gas would penetrate the soil and could reach 
 
 1. Aurora Gas Light Co. vs. Bishop, 81 111. App., 494. 
 
 2. Werner vs. Ashland Lighting Co., 84 Wis., 652; 54 N. W., 996. 
 
Instructions as to Negligence. 305 
 
 the manhole in the sewer some distance from the break 
 in the pipes, and that there were no other gas companies' 
 pipes near by, and that the gas company relied for the 
 report of leaks upon its servants who lit the street lamps, 
 put in meters and made general repairs. The gas com- 
 pany was held to be negligent in not discovering the leak. 
 and was liable for the injuries to a boy whose clothes 
 were set on fire by the explosion and thus caused him to 
 be badly burned. So an instruction to the jury: "That 
 if, from the evidence, they found that just prior to the 
 explosion illuminating gas was found in sufficient quan- 
 tities to cause an explosion was present in the manhole 
 when it occurred, and that the circumstances and condi- 
 tions which preceded and followed the presence of gas 
 in said manhole, and especially the coincidence that the 
 smell of gas ceased to pervade the atmosphere in the vi- 
 cinity of the manhole as soon as the defendant repaired 
 the break in the pipe, were such as to exclude all other 
 theories other than the plaintiff's theory which traced 
 the origin of the gas to the broken pipe of the defendant, 
 then they might regard the plaintiff's theory as legally 
 established and find a verdict in accordance therewith," 
 is correct. 
 
 An instruction, which was as follows: "If the jury 
 find from the evidence that the defendant brought into 
 the street an inflammable and explosive fluid capable of 
 escaping in such a way as to produce the casualty com- 
 plained of and that such casualty actually occurred, then 
 the facts thus found may be treated as sufficient to jus- 
 tify an inference that the casualty was due to the agency 
 or negligence of the defendant in the absence of proof 
 that it was otherwise," is not open to the criticism that 
 the jury must find the defendant guilty because gas was 
 brought into the street and injured the plaintiff when 
 another instruction told the jury that "as you will doubt- 
 less understand from the evidence which has been given, 
 and the arguments of counsel and from the instructions 
 I have already given you, the question in the case is 
 whether the accident was due to the negligence of the 
 
306 Injury to Property from the Escape of Natural Gas. 
 
 employees of the gas company, and whether, through 
 that negligence, the gas found its way through the man- 
 hole and was in some manner ignited and caused the 
 flames to come out and set the boy's clothing on fire," 
 because all the instructions must be taken as a whole, 
 and, when read as a whole, the tenor of the instructions 
 is that the gas company must be guilty of negligence. 1 
 
 SEC. 8. INJURIES TO PROPERTY FROM THE ESCAPE 
 OF NATURAL GAS. A plaintiff set up that he was the 
 owner of a certain dwelling house and lot of the value 
 of $1,250, and the house contained personal property of 
 the value of $750; that the defendant was a corporation 
 organized under the laws of the state of Indiana, and 
 was engaged in furnishing natural gas for fuel and light 
 to a certain town, and had and owned mains and pipes 
 laid in the streets of the said town; and the company so 
 carelessly laid and constructed said pipes and gas mains 
 as to allow and permit such gas to flow and escape from 
 its line of pipe through which such natural gas was being 
 conducted, over, upon, through and into the plaintiff's 
 lot and dwelling, and to accumulate therein in such 
 quantity that the same came in contact with a lighted 
 lamp therein, without the fault of the plaintiff, and ex- 
 ploded and set fire and destroyed the building and its 
 contents without any fault of the plaintiff; to her dam- 
 ages in the sum of $2,000. 
 
 The complaint was held sufficient to show that the 
 gas company owed a duty to the property owner of the 
 town to use reasonable and ordinary care in putting 
 down its pipes and main so as not to permit the escape 
 of gas therefrom in such quantities as to become danger- 
 ous to life and property. The gas company owed the 
 duty to the public because the company occupied public 
 streets for its own special and extraordinary use in con- 
 ducting an article known to be in a high degree inflam- 
 mable and explosive. The fact that the complaint did 
 not allege that the gas passed from a leak in the mains 
 
 1. Tiehr vs. Consolidated Gas Co., 51 App. Div., 446; 65 N. Y. 
 Supp., 10. 
 
Wrongful Increase of Pressure. 307 
 
 through the soil in safficient quantities to cause an ex- 
 plosion in the house is not insufficient because the court 
 cannot know judicially whether gas will so pass through 
 the soil or not, therefore the court cannot take notice 
 that the complaint charges an impossibility. 1 A com- 
 plaint charged that a natural gas company was engaged 
 in the business of furnishing natural gas for fuel and 
 lighting purposes, and that the company laid pipes for 
 its conveyance under streets, and that said pipes were 
 laid in front of a certain building, and that the gas com- 
 pany had negligently, carelessly and knowingly permit- 
 ted and allowed the said pipes to become and remain in 
 bad repair, and the pipes in front of the building had 
 become rusted, rotten and incapable of controlling and 
 retaining the gas, through the negligence of the gas 
 company, and had permitted the same to remain in such 
 condition, and the gas escaped from said pipes and pene- 
 trated the ground and found its way to a building, and was 
 set on fire and exploded, and caused the building to fall, 
 and the plaintiff's husband was buried under the falling 
 building and was burned to death without any negligence 
 on his part, and there was a further charge that the gas 
 company dangerously increased the pressure considering 
 the unsafe condition of the pipes. The complaint was suf- 
 ficient to charge the company with negligence, which was 
 the proximate cause of the injury, and the complaint was 
 sufficient without charging that the gas company was 
 negligent in the breaking of the pipe and escape of the 
 gas, and its percolation through the earth to the building. 
 The gas company was bound to anticipate these results 
 when it maintains defective pipes and it turns on the gas 
 at an excessive pressure. 2 
 
 SEC. 9. WRONGFUL INCREASE OF PRESSURE WITH- 
 OUT NOTICE OR WARNING. A complaint against a de- 
 fendant set up that the party injured was a consumer of 
 
 1. Mississinewa Min. Co. vs. Patton, 129 Ind., 472; 28 N. E. 
 
 1113. 
 
 2. Alexandria Min. & Expl. Co. vs. Irish, 16 Ind. App., 534; 44 
 
 N. E., 680. 
 
308 Negligent Increase of Pressure. 
 
 natural gas for fuel and light and the defendant was en- 
 gaged in the business of supplying natural gas for these 
 purposes, and that the party injured had a certain dwell- 
 ing house on a certain lot and that he resided in said 
 house with his family, and that the person injured was 
 a customer of the gas company in the use of gas and that 
 he had his stoves connected with the gas mains of the 
 defendant, and that on a certain day the pressure of gas 
 was higher than it was necessary and was higher than 
 it had been for some several weeks, and that the gas 
 company through its agents, without notice to the per- 
 son injured, negligently, carelessly and unskillfully and 
 recklessly and without due regard for the safety of the 
 property of the plaintiff, increased the pressure to double 
 the amount and that the stoves were so heated, without 
 notice or knowledge to the person whose property was 
 injured, that the stove became red hot, and the blaze 
 passed up the stove pipe and chimney and set fire to the 
 building and the residence and personal property of the 
 plaintiff were burned, all without negligence or fault on 
 the part of the plaintiff. 
 
 The negligence of the defendant in increasing the 
 pressure without any contributory negligence on the part 
 of the plaintiff would sustain a verdict against the gas 
 company. The fact that the persons whose property 
 was burned were in arrears in the payment of gas used 
 would not defeat the right to recover when he paid for 
 the gas consumed in a cook stove and not for gas used in 
 a heating stove, although he turned on the gas in the 
 heating stove without the consent of the company, but 
 there was no rule of the company preventing him from 
 turning on the gas. The fact that the gas was not paid 
 for or that consent was not obtained, did not make the 
 plaintiff a trespasser. The plaintiff would be barred 
 from a recovery if he caused an unsafe and defective flue 
 to be built and this defective flue was the cause or con- 
 tributed to the accident. If the flue was defective the 
 plaintiff was bound to know that fact, and if he built a 
 defective flue through ignorance or through the ignor- 
 
Injuries Caused by Natural Gas. 309 
 
 ance of the mechanics who put it up, it would be no ex- 
 cuse on his part. ' 'The word 'negligence,' " said the court, 
 "implies in itself that there is not necessarily freedom 
 from ignorance by one who is guilty of it." When there 
 is evidence tending to show such negligence it must be 
 submitted to a jury. * 
 
 A complaint is sufficient which sets up that the com- 
 plainant insured a certain dwelling against fire and that 
 the building was destroyed by fire without any negligence 
 on the part of the owner, and that the insurance com- 
 pany paid the loss and was subrogated to the right of 
 the owner, and that the defendant, a corporation, was 
 engaged in supplying natural gas to consumers for light 
 and fuel purposes, and that the defendant supplied the 
 house which was burned and that the defendant in the 
 exercise of due care had been accustomed to, and did 
 previously keep a watchman during the night which was 
 necessary to prevent accidents and the communication of 
 fire to buildings into which gas was conveyed and sup- 
 plied and whose duty it was to observe and regulate 
 through proper machinery and appliances the pressure 
 and supply of natural gass, so that the pressure would 
 not become too great during the night, and thereby pre- 
 vent excessive and overheating of stores, and thus pre- 
 vent the communication of fire to buildings by such ex- 
 cessive heating; and further the supply of gas became 
 great and the stoves were overheated and thereby a cer- 
 tain building was burned and was caused wholly on ac- 
 count of the negligence of the defendant in not having 
 and keeping a watchman on guard. * 
 
 Whether the fire in such a case was caused by a de- 
 fective stovepipe is a question for the jury to determine; 3 
 or whether a flue was defective is also for the jury when 
 
 1. Alexandria Min. & E. Co. vs. Painter, 1 Ind. App., 587; 28 
 
 N. E., 113. 
 
 2. Indiana Nat. Gas Co. vs. New Hampshire Ins. Co., 23 Ind. 
 
 App., 298; 53 N. E., 485. 
 
 3. Ind. Nat. Gas. Co. vs. New Hampshire Ins. Co., 23 Ind., App. 
 
 298; 53N.E.,485. 
 
310 Natural Gas Explosion. 
 
 the evidence is conflicting 1 . 1 So where a complaint 
 charges that the gas company negligently failed to sup- 
 ply gas in a safe manner, and negligently failed to con- 
 trol the pressure of gas, and that it negligently provided 
 a defective and insufficient regulator to control the pres- 
 sure of gas and that the pressure was increased to such 
 a high degree that a fire was caused thereby, no recovery 
 can be had against the gas company unless the proximate 
 cause of the injury was due to such negligence as charged 
 in the complaint. The evidence on the trial showed 
 that the fire ignited gas in a room leased by a third per- 
 son and that the fire started because a stove in which 
 gas was consumed was defective and the valves were so 
 adjusted that the stove would consume a larger quantity 
 of gas than usual so as to make a better fire in order that 
 some flowers owned by a lessee would not be frozen. 
 The evidence also showed that the gas company had 
 desk room in the room where the fire originated and the 
 lessee kept the books of the gas company there and 
 collected gas bills due the company and also the di- 
 rectors held their monthly meeting in the room, but the 
 use made of the room was at the request of the lessee. 
 The proximate cause of the injury was held to be the 
 improper and unsafe adjustment of the valve in the stove 
 by the lessee and as the valve was so adjusted for the 
 purpose of supplying heat to flowers owned by the lessee, 
 it was not done for the gas company or for the lessee as 
 the gas company's agent but for the purpose of preserv- 
 ing the lessee's own property over which the gas com- 
 pany had no control. 2 So where a house was destroyed 
 and the gas company was charged with negligence be- 
 cause the pressure was increased and had also charged 
 the mixers were changed and an insufficient one was sub- 
 stituted, but the evidence showed that the mixer did not 
 cause the injury and the owner of the building had full 
 
 1. Alexandria Min. & Ex. Co. vs. Painter, 1 Ind. App., 587; 28 
 
 N. E., 113. 
 
 2. Westfield Gas & M. Co. vs. Hinshaw, 22 Ind. App., 499; 53 N. 
 
 E., 1069. 
 
Negligent Increase of Gas Pressure. 311 
 
 control of all the gas apparatus except the mixers and 
 the pressure was controlled by a valve and the owner 
 adjusted the valve before leaving 1 the house and she 
 knew the pressure was not uniform, the owner of the 
 building destroyed was not entitled to recover because 
 it was her own fault which caused the fire in not turning 
 the valve low enough. * A gas company is negligent, how- 
 ever, if for any cause the pressure should be increased 
 and thus overheat the stoves and radiators without no- 
 tice to the consumers and their property is destroyed on 
 account of such increased pressure if the gas company 
 could avoid the injury by keeping a watchman to ob- 
 serve and regulate the pressure. 2 
 
 SEC. 10. PRESSURE NEGLIGENTLY INCREASED, CON- 
 TINUEDDEGREE OF CARE. An action brought against 
 a natural gas company for the destruction of a building 
 caused by the overheating of a stove. The theory of the 
 declaration was: "That the defendant was in possession 
 of certain wells producing natural gas and was engaged 
 in a business of furnishing natural gas through its pipe 
 lines to consumers for fuel and domestic heating pur- 
 poses for a consideration, and that it was so furnishing 
 such natural gas to said dwelling house under a contract 
 for a valuable consideration, and being so engaged it was 
 the duty of the defendant to properly control and regu- 
 late the quantity and pressure of the said natural gas, 
 so far as the same was necessary for fuel and domestic 
 heat, which should be so furnished by it to and for said 
 dwelling house; and it was averred on a certain day and 
 at a certain county, the defendant wrongfully, negli- 
 gently and unlawfully caused, suffered and permitted 
 the said natural gas to run, flow, and pass out of said 
 wells, producing natural gas and out of and from said 
 lines of pipe, machinery and apparatus of which the de- 
 fendant was possessed, in and through the said burners, 
 
 1. Iback vs. Huntington Light & Fuel Co., 23 Ind. App., 281; 55 
 
 N. E., 249. 
 
 2. Ind. Nat. Gas & Ilium. Co. vs. Long, Ind. App., ; 59 N. 
 
 E., 410. 
 
312 Sufficiency of the Complaint. 
 
 heaters, stoves, grates, pipes and line of pipes of the 
 plaintiff (which were averred to be in good repair and fit 
 for the purfiose for which they were used) in so great 
 and large quantities and with so great a pressure that 
 the said burners, heaters, etc., of plaintiff were then and 
 there forced open, broken and thrown apart and burst 
 and by reason thereof the said great and large quantities 
 of gas did escape and passed out of said pipes and burn- 
 ers, etc., in and into said dwelling house and was ignited, 
 burned and exploded by fires then and there lawfully 
 kept and being in the burners, heaters, etc., by which 
 means the house was burned and destroyed." The dec- 
 laration stated a sufficient cause of action and was not 
 bad on demurrer, and that the declaration did not impose 
 on the company furnishing gas a higher degree of dili- 
 gence than that required by law. 1 The gas company was 
 engaged in the business of transporting and selling to 
 consumers an article of trade and traffic of the most deli- 
 cate, explosive and inflammable nature and very danger- 
 ous, and the care and diligence of the gas company must 
 be commensurate with the danger incident to the hand- 
 ling of the commodity. The terms "negligence" and 
 "ordinary care" are correlative. "What constitutes or- 
 dinary care depends upon the circumstances of each par- 
 ticular case. It is such care as a person of ordinary 
 prudence would exercise under the circumstances." 2 So 
 where a corporation, or others, furnish natural gas to the 
 stoves, heaters, burners, pipes, lines of pipe, machinery 
 or apparatus of another to be used for the purpose of 
 domestic heat and fuel in a dwelling house, the corpora- 
 tion or persons are bound to exercise such care, skill and 
 diligence in all its operations as is called for by the deli- 
 cacy, difficulty and dangerousness of the nature of the 
 business, in order that injury may not be occasioned to 
 others; that is to say, if the danger, delicacy and diffi- 
 
 1. Barrickman vs. Marion Oil Co., 45 W. Va., 634; 32 S. E., 327; 
 
 44 L. R. A., 92. 
 
 2. Barrickman vs. Marion Oil Co., 45 W. Va., 634; 32 S. E., 327; 
 
 44 L. R. A., 92; Berns vs. Gaston Gas Coal Co., 27 W. Va., 
 285. 
 
Evidence Sufficient to Establish Negligence. 313 
 
 culty is extraordinary, great and extraordinary skill and 
 diligence are required, and must see that the pressure is 
 no greater than is proper for such purpose and must see 
 that its regulators and appliances in use for the purpose 
 of regulating the pressure are in a proper and safe con- 
 dition. The plaintiff, however, must not be guilty of 
 negligence, and if the plaintiff or his tenant knows that 
 the pressure of gas is variable and it is dangerous to use 
 it, the plaintiff would be guilty of contributory negligence 
 but it would not be negligence to leave the gas burning, 
 although the pressure was uneven, if it was not known 
 to be dangerous. So if the fixtures and other appliances 
 were in an unsafe condition and it was the duty of the 
 plaintiff or his tenant to maintain them in good condi- 
 tion, and the defective fixtures contributed to the injury, 
 then no recovery can he had. 1 
 
 SEC. 11. EVIDENCE IN REGARD TO PRESSURE AND 
 ESCAPE OF GAS. Evidence of the condition of the pres- 
 sure as indicated by the lights and stoves which burned 
 natural gas in other places and in the immediate neigh- 
 borhood of the accident, and all are furnished gas from 
 the same main and the other appliances are the same, is 
 competent to establish the pressure at the place of the 
 accident.* Before such evidence can be regarded as com- 
 petent it must be shown that the conditions at the other 
 places are the same as the conditions at the place of the 
 accident. Thus where it is shown that the pressure of 
 gas in the mains is the same throughout a city, but that 
 the mixers were not of, uniform size, the sizes being not 
 the same, and some mixers would let in a large amount 
 of gas compared with mixers of a smaller size, and that 
 the consumer at the place of using the gas had a key 
 under his control and management by which the con- 
 sumer could regulate the flow of gas into the places of 
 consumption and could turn it off entirely, the mere 
 
 1. Barrickman vs. Marion Oil Co., 45 W. Va., 634; 32 S. E., 327; 
 
 44 L. R. A., 92. 
 
 2. Barrickman vs. Marion Oil Co., 45 W. Va., 634; 32 S. E., 327; 
 
 44 L. R. A., 92. 
 
814 Competency of Evidence. 
 
 fact that stoves in another part of the city were made 
 red hot and dangerous, cannot be considered as having 
 any bearing upon the question, and such evidence is not 
 competent. 1 
 
 Proof showed that natural gas leaked the year before 
 and that the pipes were corroded and rusted, and that 
 the servants tried to stop the leak but failed. That the 
 main pipe was 30 inches below the surface, and the road 
 above was macadamized, and that the building was about 
 40 feet from the main, and contained no explosives, but 
 consumed natural gas, but the service pipes were in good 
 condition. After the explosion considerable gas found 
 its way to the basement of the building, in considerable 
 quantities, and the earth between the gas main and the 
 building showed that gas escaped therein and vegetation 
 commenced to die about the place, and no other gas pipes 
 were in the neighborhood. The gas company dug from 
 the basement of the building toward the main after the 
 explosion, some distance, and then ceased further inves- 
 tigation, but the earth dug up was black, and this indi- 
 cated gas had escaped through it. Evidence of experts 
 showed that gas, when it escapes, will go to a point of 
 the least resistance, and that it tends toward the base- 
 ment of buildings, and there is no limit to the distance it 
 may go to the point of the least resistance through the 
 ground. Such evidence is sufficient to establish the fact 
 that gas leaked from the mains of the gas company. * 
 
 So where gas escaped into a house evidence of the 
 effect of gas on other inmates of the house is competent 
 but the evidence "should be limited to the effect of the 
 gas upon those who have in common and under similar 
 circumstances inhaled it." 8 But evidence that people 
 living in another house had been made sick is not com- 
 
 1. Indiana Nat. & Ilium. Gas Co. vs. New Hampshire Ins. Co., 
 
 23 Ind. App., 298; 53 N. E., 485; Washington Tp. F. Co., 
 Ap. Fuel & G. Co. vs. McCormick, 19 Ind. App., 663; 49 
 N. E., 1085. 
 
 2. Alexandria Min. & E. Co. vs. Irish, 16 Ind. App., 534; 44 N. 
 
 E., 680. 
 
 3. Hunt vs. Lowell Gas Light Co., 8 Allen, 169. 
 
Evidence as to Negligence. 315 
 
 patent because they inhaled gas which had escaped into 
 the house from the defects in the gas company's pipes. * 
 Evidence was offered on the trial that the gas company 
 was notified that gas was escaping at a certain point 
 from the main of a gas company and a search was made 
 but no gas was found to be escaping. Some time there- 
 after the gas company was again notified and the com- 
 pany made a search and found a leak. The evidence 
 tended to show that vines and vegetation had commenced 
 to die on the premises abutting on the street where the 
 gas was claimed to have leaked. The evidence showed 
 that the surface over the gas pipes was packed hard 
 and that the ground below was loose and sandy and 
 there was evidence tending to show that gas would pene- 
 trate laterally. With this evidence before the court it 
 was not improper to ask an expert what effect the gas 
 would have on the vegetation where it penetrated the 
 soil upon which the vegetation had grown. 2 So evidence 
 of the condition of trees and the effect the escape of gas 
 had upon them at other places is competent where an 
 action is brought for the destruction of trees at a par- 
 ticular place. 3 So where an action was brought against 
 a gas company and a large number of witnesses testify 
 that gas was smelled at a particular place, the evidence 
 of the witnesses will not be considered separately, but 
 all the evidence of the witnesses must be considered to- 
 gether to fix the liability on the gas company. 4 The 
 mere escape of gas of which the gas company had notice 
 will not make the gas company liable where a great fire 
 prevailed in a city and buildings fell and broke the pipes 
 of the gas company and there were numbers of explo- 
 sions and no direct evidence that the injury was caused 
 by an explosion of gas or some other explosion. 5 
 
 1. Emerson vs. Lowell Gas Light Co., 3 Allen, 410. 
 
 2. Wichita Gas, Electric Light & P. Co., 9 Kan. App., 730; 59 
 
 Pac., 1085. 
 
 3. Rockford Gas Light & Coke Co. vs. Ernst, 68 111. App., 300. 
 
 4. Kopleinvs. Boston Gas Light Co., 165 Mass., 411; 43 N. E., 
 
 478. 
 
 5. Hutchinson vs. Boston Gas Light Co., 122 Mass., 219. 
 
316 Trees and Vegetation Injured ~by Gas. 
 
 SEC. 12. SEARCHING FOR A LEAK IN STREET OR 
 HIGHWAY. An action was brought against a city whose 
 servant in searching for a leak lit a taper and moved it 
 along the surface of the street in order to discover the 
 leak and the taper ignited a jet of gas which was escap- 
 ing and the servant thus ascertained that there was a 
 leak in the highway. The servant attempted to extin- 
 guish the flame by covering it with dirt but in a few 
 moments an explosion occurred in the basement of a 
 building and it was claimed that fire passed through an 
 underground tunnel into the basement and thus caused 
 an explosion. The plaintiff built an underground tunnel 
 on the day before from the main sewer on the street to 
 the basement of the house for the purpose of drainage 
 and it was shown neither the city nor the servant had 
 notice of the construction of the tunnel. There was no 
 evidence that the servant in using the taper was not act- 
 ing in the usual, ordinary and reasonable way in discover- 
 ing a leak or that there was a different method that he 
 might pursue. Negligence was held not to have been es- 
 tablished by the mere fact of the happening of the explo- 
 sion, and the relation of cause and effect did not prove it. 
 Before negligence can be charged it is necessary to show 
 that something unusual, unnecessary or improper under 
 the circumstances had been done. The facts did not 
 justify an inference of negligence and the city was not 
 liable. l So where gas was escaping and the servants of 
 a gas company drilled a hole in the ground to find out 
 the location of a leak and then applied a taper and the 
 gas caught fire and was communicated to a building 
 where gas had accumulated, and was conveyed through 
 an underground sewer, the servants of the gas company 
 were not negligent in searching for the leak in the way 
 they did. * 
 
 SEC. 13. INJURIES TO TREES AND SHRUBBERY AND 
 PLANTS CAUSED BY THE ESCAPE OF GAS. Gas escaped 
 from the pipes of a gas company and entered the green- 
 
 1. Littman vs. New York City, 55 N. Y. Supp., 383. 
 
 2. Aurora Gas Light Co. vs. Bishop, 81 111. App., 449. 
 
Duty of Gas Company. 317 
 
 house of the plaintiff through a sewer. It was held to be 
 the duty of the gas company to confine its gas in its pipes 
 and to keep it constantly in control and prevent it from 
 escaping into buildings. Where the evidence is conflict- 
 ing the court will not disturb the verdict of a jury when 
 the jury was properly instructed. * In an action against 
 a gas company it was shown that gas was escaping at a 
 point for some time before the ground became frozen* 
 The pipes of the gas company became corroded by reason 
 of an electrical current and escaped beneath the frozen 
 earth to a greenhouse. The pipes were down only a 
 few years and were in good condition at the time they 
 were put down. The fact that gas escaped before the 
 ground was frozen was sufficient to notify the company 
 that there was a leak if the company had an efficient sys- 
 tem of inspection. The company did not use proper care 
 when the danger of the article the company dealt in was 
 taken into consideration. 2 
 
 So where gas had escaped from the mains of a gas 
 company buried on a public street and the company had 
 been notified that gas was escaping but failed to find the 
 leak, until some months thereafter, when the company 
 was again notified and the gas penetrated the soil and 
 killed the vines, trees and shrubbery on the premises of 
 an abutting owner, an instruction was correct which told 
 the jury, "that the defendant being authorized by the 
 authorities of the city to lay down its pipes and carry 
 gas in and through and under the surface of the streets 
 to various parts of the city, it was its duty to conduct its 
 whole business in all its branches and in every particu- 
 lar, with ordinary prudence and care, care and diligence 
 was required from the defendant to lay and maintain its 
 pipes in such a manner so that damages should not re- 
 sult therefrom, and the degree of diligence to be used 
 should be determined from the danger, if any there was, 
 
 1. Armbuster vs. Auburn Gas Light Co., 56 N. Y. Supp., 447; 21 
 
 App. D., 158. 
 
 2. Serbrecht vs. East River Gas Co., 47 N. Y. Supp., 262; 21 
 
 App. Div.,110. 
 
318 Explosion of Gas Tank. 
 
 in the use of such an element as gas. " This instruction 
 was held by the court to state the law correctly as ap- 
 plicable to the facts. The gas company insisted that the 
 instruction should not be given unless it was modified by 
 an instruction asked by the gas company, to-wit:" So far 
 as this case is concerned the degree of care and diligence 
 to be exercised is to be determined by the probability 
 and liability, if any, of escaping gas injuring trees and 
 shrubbery; in other words, could the gas company rea- 
 sonably apprehend that escaping gas from such a leak 
 as you may find existed, if any, would cause the destruc- 
 tion of the trees, shrubs and grass of the plaintiff?" The 
 court held that the gas company was not entitled to such 
 an instruction as a higher degree of diligence and care 
 is imposed on the gas company than was embodied in 
 the instruction. * So where gas escaped and caused the 
 destruction of trees in the streets of a city and an owner 
 of a lot brought an action against the gas company for 
 the destruction of the trees growing on the street abut- 
 ting on the lot, the gas company was liable when the 
 gas was negligently permitted to escape although the 
 fee in the street was in the city in trust for the public, 
 since the owner of the lot was the owner of the trees, 
 against all persons except the city. 2 
 
 SEC. 14. EXPLOSION OF GAS TANK AND OTHER AP- 
 PLIANCES BY WHICH SERVANTS ARE INJURED. A rail- 
 road company constructed a gas plant for the manufac- 
 ture of illuminating gas to be used in its machine shops 
 and sleeping cars on the road, and the gas plant was 
 built after a certain person, who was killed, was em- 
 ployed by the railroad company. A voluntary fire de- 
 partment was organized and the person above mentioned 
 was its chief and the fire department was composed 
 wholly of railroad employees. No person was required 
 by the railroad company to join the fire department but 
 
 1. Wichita Gas, Electric Light & Power Co. vs. Wright, 9 Kansas 
 
 App.,730;59Pac.,1085. 
 
 2. Rockford Gas Light & Coke Co. vs. Ernst, 68 111. App., 300. 
 
 See also Sect. 15, Chap. IX. 
 
Injury to Servants from Explosion. 319 
 
 the object of the department was to extinguish fires 
 which may break out at the shops of the railroad com- 
 pany. The railroad company furnished an apparatus 
 and located the water plug's and pipes and permitted the 
 persons who composed the fire department to drill fre- 
 quently during" work hours and they received pay the 
 same as if they were engaged at their regular work. The 
 chief was allowed an hour each week to inspect the shops 
 as a precaution against fire. The facts showed that the 
 relation of master and servant existed between the per- 
 son injured and the railroad company. And the railroad 
 company would be liable for his death if it was guilty of 
 willful neglect in the construction of its gas plant. The 
 evidence showed that the death of the chief was caused 
 by an explosion of a gas tank when he was endeavoring 
 to put out a fire which had broken out in the company's 
 shops. The person injured had nothing to do with the 
 manufacture of gas but was employed as a machinist, 
 although he frequently repaired the gas apparatus. It 
 was charged that the company was negligent in having 
 a tar roof instead of a slate or metal roof, and that the 
 gas tanks were too close to the fire in the gas retorts. 
 The company was held not to be guilty of willful neglect, 
 although metal roofs are generally in use in such build- 
 ings, where roofs of the kind used by the railroad company 
 were in use and the gas tanks were separated from the 
 gas retorts by a brick wall and were some twelve feet 
 away. The negligence which would hold the railroad 
 company liable must be a reckless indifference to the 
 safety of the public or an intentional failure to perform 
 a manifest duty. The facts did not come within the 
 definition and the company was not liable. * So where a 
 person was employed as master machinist and a fire oc- 
 curred in the gas room, and he was ordered by a superior 
 to break down a door, and he did so, and the wall fell on 
 him and killed him, and it was charged that the roof had 
 burned off the building several times, and that thereafter 
 
 1. Collins vs. Cincinnati N. 0. & T. P. Ry., 23 Ky. L. R., 670; 18 
 S. W.,11. 
 
320 Place to Work Must be Safe. 
 
 an iron roof was put on and heavy iron girders to support 
 the roof and because of the previous fires the wall became 
 weak and was unable to support the iron roof and gir- 
 ders, and that the fire in the gas room caused the girders 
 to expand, and the gable was also weak, and all tended 
 to cause the wall to fall, and also it was the duty of the 
 defendant to furnish the deceased a safe place to work, 
 the allegations were held not sufficient because they did 
 not show that the deceased was not acquainted with all 
 the alleged defects and risks; or that he was lately em- 
 ployed, or that the wall became weak during his employ- 
 ment, or that he did not have charge of this particular 
 part of the building and was not a part of his duty to 
 break open the door, or the building or gas room was un- 
 fit for the purpose for which they were constructed. 1 
 
 SEC. 15. INJURIES TO SERVANTS CAUSED BY THE 
 PLACE BEING UNSAFE TO WORK. A servant of a gas 
 company received injuries while he was assisting to raise 
 a gas tank over a building because some boards were left 
 on a scaffold which was built along the wall of the build- 
 ing over which the tank was to be raised, and the boards 
 were loose and in an unsafe condition, and fell because 
 the foreman failed to steady the tank which shook the 
 board. 
 
 The master was held bound to furnish a safe place 
 for the servant to work, so it was in duty bound to re- 
 move the board which caused the injury, and the negli- 
 gence of the foreman who was held to be a fellow- servant 
 with the servant injured, was concurrent with that of the 
 master. 8 A contractor was engaged in digging a trench 
 and laying pipes therein. One gang of his men dug the 
 trench, and another gang of his men laid the pipes in 
 the trench after it was dug. The master is bound to 
 know the walls of the trench are in a safe condition, so 
 that they will not fall and injure the servants who put 
 in the pipes. A servant so engaged who was injured is 
 not guilty of contributory negligence when no danger is 
 
 1. Allen vs. Augusta Factory, 82 Ga., 76; 8 S. E., 68. 
 
 2. Bagley vs. Consolidated Gas Co., 34 N. Y. Supp., 187. 
 
Defective Ladders. 321 
 
 apparent, and the master assures him that the walls are 
 safe. * So where a servant of a gas company dug- a trench 
 in the frout of a boiler and left it in an unsafe condition, 
 and another servant whose duty called him to work near 
 and about the ditch in firing- the furnace of the boiler, 
 and was injured because of the condition of the trench, 
 the master was held bound to furnish a safe place~for 
 him to work. The servant was held not to have assumed 
 the risk because the servant assumes only the apparent 
 and ordinary risks of his employment, and such risks as 
 are incident to his employment, but he does not assume 
 the risks of defects in the plant itself, and did not as- 
 sume the risk of the hole made in front of the boiler. 2 
 But where a trench was dug- by a city, and the master 
 had no control over it, and never saw the trench, and the 
 city ordered the g-as company to remove some pipe be- 
 longing- to the gas company from the trench, the gas 
 company is not liable to a servant sent by it to remove 
 their pipes, where the walls caved in on him. 8 
 
 SEC. 16. INJURIES TO SERVANTS FROM DEFECTIVE 
 LADDERS. A person was employed about a gas plant to 
 make g-eneral repairs and had been so employed for a 
 number of years. He was told by another in authority 
 to go and clean a condenser, and to get to the place, it 
 was necessary to use a ladder which was provided by 
 the gas company. The ladder furnished by the gas com- 
 pany had no spikes in the end which rested on the floor 
 and the place where the foot of the ladder rested was 
 covered with grease and oil and when the employee as- 
 cended the ladder it slipped and the employee was 
 thrown to the ground and injured and as the employee 
 claimed the injury was caused by the absence of the 
 spikes. It also appeared that the employee told the of- 
 
 1. Schmidt vs. Gillen, 58 N. Y. Supp., 450; 41 App. Div., 302; 
 
 Baird vs. Reilly, 92 Fed. E., 884. 
 
 2. Frye vs. Bath Gas & Electric Light Co., 94 Mo., 17; 46 Atl., 
 
 804. 
 
 3. Hughes vs. Madden & Melrose Gas Co., 168 Mass., 397; 47 N. 
 
 E.,125. 
 
322 Contributory Negligence. 
 
 ficers of the gas company that the ladder was unsafe 
 some time before the accident. The court stated the 
 rule to be that an employer had to furnish a safe appli- 
 ance for the employee but where the person injured is a 
 man of some skill and intelligence, it will be assumed 
 that he had sufficient intelligence to comprehend the 
 natural, ordinary results of placing the foot of a ladder 
 without spikes or other appliances and without being 
 guarded on a slippery floor, while he attempted to as- 
 cend to the top. The attempt to ascend the ladder un- 
 der such circumstances was negligence, if not reckless- 
 ness, and was a bar to a right to recover on the ground 
 of contributory negligence. 1 So where an employee's 
 duty was to light lamps in front of his master's resi- 
 dence and to reach the lamps a ladder was used. 
 There were no spikes at the foot of the ladder and the 
 employee reported to the foreman that the ladder was 
 insecure because of the absence of the spikes and the 
 foreman promised to remedy the defect, but did not do so 
 at the time and upon being told the second time he prom- 
 ised to have the ladder made secure. The defect was 
 not remedied and the servant fell from the ladder one 
 stormy night and was injured because of the absence of 
 spikes. The master was not liable because the work and 
 the use made of the ladder were but ordinary labor and 
 the servant was as familiar with the defects as the mas- 
 ter. The rule as to injuries caused by complicated ma- 
 chinery does not apply. 2 The injury which the servant 
 received must be the consequences resulting from the 
 use of the defective ladder and if the defective ladder 
 was only an incidental and not the cause of an injury the 
 master is not exonerated. Thus when a servant was or- 
 dered to remove some boards which were above a gas 
 generator and to do so it was necessary to use a ladder 
 and the servant used a ladder which was shorter than 
 the one he was directed to use and he ascended to the 
 
 1. Corcoran vs. Milwaukee Gas Light Co., 81 Wis., 191; 51 N.W., 
 
 328. 
 
 2. Marsh vs. Chickering, 101 N. Y., 396; 5 N. E., 56. 
 
Directing a Servant to a Place of Danger. 323 
 
 place directed, although the ladder was not long- enough 
 to reach it and he used other means to reach the point 
 and he was overcome with gas which had accumulated 
 at the place he was directed to go and he fell and re- 
 ceived injuries and an action was brought against the 
 gas company for his death because the place where he 
 was sent was dangerous and the master was negligent 
 in sending him to such a place, the question of the 
 length of the ladder in such a case is immaterial because 
 it had nothing to do with the fall as the fall was caused 
 by inhaling the poisonous gases and it was immaterial 
 how he made his ascent. 1 
 
 SEC. 17. NEGLIGENCE OP THE MASTER IN DIRECT- 
 ING A SERVANT TO Go TO A PLACE OF DANGER. In an 
 action against a company engaged in the manufacture 
 of illuminating gas, it appeared that a servant met his 
 death under the following circumstances: The gas com- 
 pany had just completed a new building and a gas ap- 
 paratus was put in and a test was being made of it by 
 the manufacturers of the gas apparatus. One test had 
 been made by the manufacturer and another was to be 
 made on the day of the accident. The gas apparatus 
 consisted of a generator located below the main floor 
 and three upright cylindrical chambers about 18 feet 
 above the floor on which they stood. The first was called 
 a superheater, the second the condenser and the third a 
 scrubber. Coal was put into the generator and burned 
 there, and from there the smoke and gases passed to the 
 superheater, where combustion was made complete and 
 the generation of illuminating gas was commenced. The 
 gases thus produced consist of carbonic acid gas and car- 
 bonic oxide, both dangerous to human life when inhaled. 
 The day before the accident coal was burned in the gen- 
 erator and the gases were allowed to pass to the super- 
 heater and a small quantity of illuminating gas was 
 manufactured. A valve at the top of the superheater 
 was left open and the gases which passed into the super- 
 heater escaped and found their way toward the ceiling 
 
 1. Citizens Gas Light & Heating Co. vs. O'Brien, 118 111., 174. 
 
324 Expert Evidence as to Danger of Gas. 
 
 of the gas plant and a fire was also in the generator at. 
 the time and the valve was open. Some planks were 
 stretched across some iron girders above the superheater 
 and at a point close to the ceiling, and the foreman of 
 the gas plant directed them to be removed so that they 
 would not be there to start a fire, and a servant in carry- 
 ing out the order ascended a ladder and reached the place 
 in safety. After he got to the place he attempted to re- 
 turn without accomplishing the work and got as far down 
 as the top of the condenser and standing there a few 
 minutes he fell to the ground and received fatal injuries. 
 The cause of action charged that the gas company was 
 negligent in permitting poisonous gases to escape into a 
 portion of the room where the deceased was directed to 
 go and that he was negligently directed to go to the 
 place; and the gas company could have known of the 
 presence of gas by the exercise of ordinary care but the 
 deceased did not know and was in the exercise of ordi- 
 nary care. 
 
 EXPERT EVIDENCE. It was competent for the plain- 
 tiff to show by expert testimony that hard coal burned 
 in the generator would produce carbonic acid gas and 
 carbonic oxide, and that both were poisonous and that 
 carbonic oxide was lighter than air and would find its 
 way toward the ceiling for the purpose of showing the 
 presence of gas at the point where the deceased fell, but 
 such an expert cannot say that gas was present at the 
 point, but only that if gas escaped it would have a tend- 
 ency to go to that point because it was lighter than com- 
 mon air. 1 
 
 So a witness is competent to testify as an expert as 
 to the effect of gases from hard coal on a human being, 
 although such person had no practical experience and 
 all his knowledge was acquired from reading standard 
 authorities and study, 2 and such a witness may be asked 
 what his practical experience was with such gases. 8 
 
 1. Citizens Gas Light & Heating Co.vs. O'Brien, 15 111. App., 400. 
 
 2. Citizens Gas Light & Heating Co. vs. O'Brien, 19 111. App., 231. 
 
 3. Citizens Gas Light & Heating Co. vs. O'Brien, 118 111., 174. 
 
Injuries to Licenses. 325 
 
 The gas company was guilty of negligence when it 
 knowingly permitted gas to escape in the building and 
 did not furnish the means to have it pass out into the open 
 air and is liable for the death of a servant who in obedi- 
 ence of the command of the foreman went to the place in 
 the room and was overcome with gas and then fell and 
 received fatal injuries where the servant was without 
 fault and did not know of the presence of gas. x 
 
 SEC. 18. INJURIES TO PERSONS WHO HAVE AN IM- 
 PLIED LICENSE TO ENTER THE PREMISES. An owner of 
 a house was supplied with water for domestic purposes 
 by a company and to ascertain the amount of water used 
 by the owner a water meter was kept on the premises 
 and at certain intervals a person visited the house to 
 read the water meter, and while in the discharge of his 
 duty he was killed by an explosion of gas which had es- 
 caped. The owner of the premises owed a duty to the 
 person killed. The person killed was not a mere licensee 
 but was rightfully on the premises under an implied in- 
 vitation of the owner, and the owner in such a case is 
 liable if the person killed was not guilty of contributory 
 negligence, and the mere fact that he smelled gas will 
 not make him guilty of contributory negligence. 8 So 
 where, in pursuance of an ordinance passed by a city, a 
 gas company was required to place upon its premises a 
 water meter, the gas company was held bound to select 
 a safe place for its water meter so that persons who may 
 be required to come to the place to read the meter will 
 not be injured. If the gas company puts the meter in 
 such a place as to require a light to read it and gas es- 
 caped to the place and was exploded by the light used 
 by the person who was reading the water meter the gas 
 company is liable. 8 
 
 SEC. 19. LIABILITY OF A LANDLORD FOR INJURIES 
 EESULTING FROM DEFECTIVE GAS PIPES. The devisee 
 
 1. Citizens Gas Light & Heating Co. vs. O'Brien, 118 111., 174. 
 
 2. Finigan vs. Fall River Gas Works, 159 Mass., 311; 34 N. E., 
 
 523. 
 
 3. Washington Gas Light Co. vs. Eckhoff, 22 Wash. L. R., 656. 
 
326 Injuries to Tenants. 
 
 of a landlord was held not liable for damages caused by 
 an explosion of gas where he leased premises to a tenant 
 and the tenant who then occupied the premises caused 
 a gas apparatus to be placed in the building for his own 
 convenience, and the tenant hired a competent and 
 skillful plumber to do the work, and after the gas appa- 
 ratus was put in the tenant assigned his lease to another 
 and the devisee of the landlord thereafter made a new 
 lease to the tenant who was assignee of the lease. The 
 devisee of the premises was also owner of an adjoining 
 building and the both buildings were separated only by 
 a brick wall and the other building was let to another 
 tenant to be used for a grocery store. The person in- 
 jured was a servant of the latter tenant. The complaint 
 alleged that the plumbing was defective and was improp- 
 erly put in, and that the pipes were old and rusty, and 
 that the gas escaped in the cellar, and that an explosion 
 occurred without any fault of the person injured. 
 
 The person injured contended that the premises were 
 in a defective condition when the lease was made to the 
 tenant, and that the owner was liable for such defects. If 
 the owner of the premises had no notice of the defective 
 condition of the plumbing, that fact would not exon- 
 erate the owner because the owner had the power to as- 
 certain if any defects in the plumbing after the former 
 lease was surrendered and the law will charge the owner 
 the same as if such owner had actual notice since the law 
 charges the owner who demises his premises with the 
 duty of knowing its condition at the time he accepts a 
 tenant, and must see that the appliances are in good con- 
 dition so that no harm will come to others. 
 
 The landlord is not an insurer, and as many things 
 may be brought upon the premises which are not nuis- 
 ances per se, but are dangerous, the landlord is released 
 from liability when he exercises reasonable care with re- 
 spect to such things, and is released from all claims for 
 damages when he employs and relies upon persons who 
 are skilled in the work charged to be negligently done 
 and has therefore exercised care to see the premises kept 
 
Liability of Contractor. 327 
 
 in a safe condition. Where the evidence showed that the 
 former tenant, who had the gas appliances put in, em- 
 ployed a competent and skillful gas fitter, the lessor is 
 is relieved from liability, although this particular work 
 may have been done in an unskillful manner since the 
 most skillful do poor work at times, 1 and the only rem- 
 edy, if any, is against the person who did the work. 2 
 
 1. Metzger vs. Schultz, 16 Ind. App., 454; 43 N. E., 886. 
 
 2. Metzger vs. Schultz, 16 Ind. App., 454; 45 N. E., 619. 
 
NEGLIGENCE AFFECTING THE 
 RIGHT TO RECOVER. 
 
 CHAPTER XVIII. 
 
 SECTION 1. DEGREE OF CARE REQUIRED OF THE 
 OWNER OF GAS AND THE PERSONS INJURED. A gas com- 
 pany that is engaged in the business of vending gas is 
 bound for the consequences of its neglect, though these 
 consequences were not and could not by ordinary pru- 
 dence have been anticipated; and the person injured is 
 bound only to a knowledge of the probable consequences 
 of the facts of which he was cognizant, and to that ordi- 
 nary prudence which the circumstances require. 1 The 
 duties of a gas company were stated by an eminent court 
 in the following language: "The definitions of negli- 
 gence which have been attempted imply that a higher 
 degree of care and vigilance is required in dealing with 
 a dangerous agency than in the ordinary affairs of life 
 or business, which involve little or no risk of injury to 
 person or property. While no absolute standard of duty 
 in dealing with such agencies can be prescribed, it is 
 safe to say, in general terms, that every precaution sug- 
 gested by experience and the known dangers of the sub- 
 ject 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 in- 
 sure 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 circum- 
 
 1. Oil City Gas Co. vs. Robinson, 99 Pa. St., 1. 
 
Due Care Required of Both Parties. 329 
 
 spection of men of ordinary skill and prudence." 1 Gas 
 companies and other dealers and vendors of gas are re- 
 quired to use the highest degree of care to see that no 
 part of the system for the manufacture and transporta- 
 tion of gas is out of repair so that the public or any 
 member of the public or the property of individuals may 
 not be jeopardized. They must be ready at all times and 
 have sufficient force and means at hand to meet any or- 
 dinary emergency. 2 The parties engaged in the distri- 
 bution of gas are engaged in a quasi public business and 
 they acquire the right to lay their pipes in the streets 
 from the states or cities, hence it is their duty to use the 
 highest degree of care. No standard rules can be laid 
 down as to the care and prudence that must be exercised 
 by them, but "care and diligence should always vary ac- 
 cording to the exigencies which require vigilance and 
 attention, conforming in amount and degree to the par- 
 ticular circumstance under which they are to be exer- 
 cised. 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." 3 These are the obligations imposed on the 
 vendors of gas and if they fail to perform their duty in 
 this regard they will be deemed guilty of negligence, but 
 these obligations do not require gas companies to keep 
 up constant inspection all along the line without refer- 
 ence to the existence or non-existence of leaks or the 
 escape of gas. 4 
 
 The complaining party must not be negligent but he 
 must do his duty to avoid injury, but such a high degree 
 of care and caution is not required of him as is of the 
 vendors of gas, since he is bound only by the probable 
 consequences of facts of which he has notice and by 
 
 1. Koelsch vs. Philadelphia Co., 152 Pa., 355; 25 Atl., 522; 18 L. 
 
 R. A., 759. 
 
 2. Holly vs. Boston Gas Light Co., 8 Gray, 129. 
 
 3. Holly vs. Boston Gas Light Co., 8 Gray, 129. 
 
 4. Koelsch vs. Philadelphia Co., 152 Pa., 355; 18 L. R. A., 759. 
 
330 Proximate Cause of an Injury. 
 
 such ordinary care as the circumstances are presented to 
 him. 1 
 
 SEC. 2. PROXIMATE CAUSE OF THE INJURY FROM 
 THE ESCAPE OF GAS. To hold a gas company liable for 
 damages the negligence of the gas company must be the 
 proximate cause of the injury sustained. In other words, 
 if two persons are at fault, the negligence of both must 
 be concurrent in time. So if a gas company was negli- 
 gent in allowing gas to escape and enter a house, and 
 the tenant was cognizant of that fact and failed to notify 
 the gas company of the presence of the gas and without 
 any precaution on his part, brought a lighted lamp in 
 contact with the gas and caused the gas to explode, the 
 gas company is not liable because the injurious effects 
 were brought about by the reckless conduct of the ten- 
 ant. Whatever care was requisite for the protection 
 of the premises under the circumstances was due from 
 the occupant. The defendant, as well as the plaintiff, 
 had a right to expect and require it of him. The measure 
 of duty and the extent of liability of the defendant in 
 respect to the property exposed to injury are not affected 
 by the consideration whether the occupant who had 
 charge of it is in fact owner in fee or tenant for years or 
 at will. If his intervening misconduct produced the ex- 
 plosion which was the immediate cause of the injury to 
 the building, the plaintiff cannot charge the legal re- 
 sponsibility for the result upon the original negligent 
 act or omission of the defendant. 2 
 
 Other courts, in fixing the liability of gas companies 
 for injuries caused by negligence, do not follow the doc- 
 trine of proximate and remote cause. Thus, where a 
 civil engineer was employed by a city to superintend the 
 construction of a sewer, and in the construction of the 
 sewer the pipes of the gas company became out of order, 
 and gas escaped and found its way into the sewer, and 
 the civil engineer knew that gas escaped and that it 
 was present in the sewer, but the engineer, with knowl- 
 
 1. Oil City Gas Co. vs. Robinson, 99 Pa., 1. 
 
 2. Bartlett vs. Boston Gas Light Co., 117 Mass., 533. ' 
 
Proximate Cause of an Injury. 331 
 
 edge of these facts, entered the sewer with a light, and 
 an explosion of the gas followed, and he was injured, 
 and he brought suit against the gas company. The gas 
 company set up a defense that its failure to repair the 
 pipe was the remote and not the proximate cause of the 
 injury, and it was not liable. The court, however, held 
 that the gas pipe and sewer were in the immediate Ti~ 
 cinity of each other; in the former there was a defect, 
 and from it gas not merely from absorption, or by grav- 
 ity, but also by pressure, found its way into the sewer. 
 "The calamity resulted from the defendant's negligence 
 and but for the defective pipe there would have been 
 no escape of gas; and if this was not the proximate 
 cause, where, we ask, was the intervening one by which, 
 the consequences of the accident are to be shifted from 
 the defendant to some other person or thing?" That the 
 city contractor, in building the sewer, disturbed the 
 pipes and so caused the break, has not the effect to shift 
 the cause, for it still remains that it was the escaping 
 gas. Neither does it excuse the company, if, knowing 
 the defect, neglected to make the necessary repairs. So, 
 even if the plaintiff, by his own negligence, occasioned 
 the defects, that would not make the cause less direct, 
 though his suit might thereby be defeated on the ground 
 of contributory negligence. The result then was the di- 
 rect effect of the cause stated, and the remaining ques- 
 tion was one of negligence. * 
 
 SEC. 3. PROXIMATE CAUSE OP INJURIES, CONTINUED. 
 A person who was injured was with her husband, the 
 owner of a house, and had been receiving gas from a local 
 gas company for a number of years and not wishing to 
 use gas any longer, requested the gas company to turn 
 off the gas, and the gas company sent a servant to shut 
 off the gas as requested. The gas was shut off by means 
 of a key about four feet long, which was inserted in the 
 gas box in the street where the gas entered the service 
 pipes to the house from the mains in the street. The 
 
 1. Oil City Gas Co. vs. Robinson, 99 Pa. St., 1. 
 
332 Negligence in Shutting Off Gas. 
 
 servant inserted the key and turned the valve and thus 
 shut off the gas and then entered the house, leaving- the 
 key in the box in the condition it was used by him to 
 turn off the gas, and the servant of the gas company 
 after entering the house went into the cellar and discon- 
 nected the pipes with the gas meter and tested the pipes 
 to see that no gas was escaping. The meter was taken 
 away by the servant and the pipes in the cellar were left 
 disconnected. The servant did not remove the key when 
 he left, but the key remained in the position it was left 
 by the servant, and the servant returned some ten min- 
 utes thereafter and removed the key. The person in- 
 jured perceived gas in the basement and went to the 
 cellar to open the door to let air in the cellar, and when 
 she went into the cellar it was night and she took a lamp 
 with her. And when she opened the door an explosion 
 followed and she was severely injured. The servant tes- 
 tified that he did the work properly and that the gas was 
 turned off before he entered the cellar to remove the 
 meter, and the company set up the defense that if gas 
 escaped from its mains through the service pipe, some 
 person had turned the gas on with the key during the ab- 
 sence of the servant and before he returned to remove 
 the key. The evidence showed that the gas had not been 
 turned off at the time of the explosion but the company 
 contended it was not liable because the intervening negli- 
 gence of the third person was the proximate cause of the 
 injury. The court disregarded the contention of the gas 
 company and held that the company was negligent in 
 leaving the key in the position it was, so that it may be 
 turned by others, and the turning of the key was the 
 natural result of the negligence of the company's agent 
 and that a man of ordinary judgment ought to foresee 
 that such would be the result. When the company un- 
 dertook to turn off the gas the company should do so 
 properly and it made no difference whether some third 
 person turned on the gas or whether the agent turned it 
 on when the key was taken out. And the company was 
 liable for the negligence of the agent in the discharge of 
 
Negligence of Others than Gas Company. 333 
 
 his duty. 1 So when the pipes of a gas company became 
 broken and gas escapes and enters a sewer and there are 
 other gases in the sewer at the time and the gas which 
 enters forces the other gases along the sewer and private 
 drains and thus enters the home of an individual and the 
 occupant becomes sick, the gas from the pipes of the com- 
 pany is the proximate cause of the injury because the 
 other gases would not leave the sewer if not forced out 
 by the gas from the pipes of the gas company. 2 
 
 So where there was a break in the service pipe which 
 supplied gas to a home and the gas company was notified 
 of the leak and sent their agent to repair the leak which 
 it was bound to do, and the agent took a light into the 
 cellar and an explosion followed and an infant of the 
 owner was injured, the light was held to be the direct 
 cause of the injury, although the father may have injured 
 the pipe and caused the gas to escape. The father's neg- 
 ligence will be regarded as the remote cause. 3 
 
 SEC. 4. PROXIMATE CAUSE, CONTINUED. Where a 
 subway was constructed in the streets of a city and the 
 pipes of a gas company were disturbed in the construc- 
 tion of the subway, and the company had notice of that 
 fact, and was requested to furnish an inspector to see 
 that the pipes were properly cared for and the company 
 failed to furnish an inspector and gas escaped and in- 
 jured a person, the gas company is not entitled to an in- 
 struction that the company is not liable for the damages 
 sustained if the gas which escaped had been set on fire 
 by some third person where such ignition ought to have 
 been foreseen by the gas company. 4 But where a person 
 was employed as general superintendent by a person who 
 operated a gas plant for his own private use and the 
 pipe leading to the hotel of the owner became stopped 
 or clogged so that gas would not pass through it and the 
 
 1. Louisville Gas Co. vs. Gutenkuntz, 82 Ky., 432. 
 
 2. Hunt vs. Lowell Gas Light Co., 8 Allen, 169. 
 
 3. Lannan vs. Albany Gas Light Co., 44 N. Y., 459. 
 
 4. Koplan vs. Boston Gas Light Co., 177 Mass., 15; 58 N. E., 
 
 183. 
 
334 Negligence of Owner. 
 
 superintendent was advised by the person who con- 
 structed the plant to remove the weights out of the 
 bucket attached to the gasometer and he did as was sug- 
 gested and the gasometer turned over and gas escaped 
 and was ignited by coming in contact with the furnaces, 
 the owner of the gas plant was held not liable as the 
 proximate cause of the injury was the experiment made 
 by the superintendent where there is evidence that the 
 owner employed competent workmen to put up the 
 plant and the person who advised him to make the ex- 
 periment was not in the employ of the owner. In such 
 a case, the clogging of the pipe had no connection with 
 the accident other than it led to the experiment. l 
 
 SEC. 5. PROXIMATE CAUSE OF AN INJURY, CONTIN- 
 UED. Thus where a mill took fire and there were pipes 
 running through the mill which contained gas to supply 
 the mill with light and there was a stop cock in the 
 pipe outside the mill by which the gas could be shut off 
 and the stop cock was covered up by a third person and 
 could not be used to turn off the gas during the progress 
 of the fire in the building, the owner of the building can 
 not recover against the party that caused the stop cock 
 to be covered up when the mill took fire from an inde- 
 pendent cause and the owner allowed the stop cock to 
 remain covered for more than a year, as the covering of 
 the stop cock is not the proximate cause of the injury, 
 although the damage may have been increased thereby. 2 
 But where a gas company failed to put a stop cock in 
 the pipe that conveyed gas from the street to the build- 
 ing, so that the gas could be shut off in case of danger, 
 the gas company is liable for damages, though the pipes 
 were sufficient to confine the gas but were wrongfully 
 severed by persons who entered the house to commit a 
 robbery, because stop cocks were generally used as a 
 protection and the damages were traced directly to the 
 absence of the stop cock. The liability thus imposed on 
 
 1. Taylor vs. Baldwin, 78 Cal., 517; 21 Pac., 124. 
 
 2. Cochran vs. Philadelphia & R. T. Ry. Co., 143 Pa., 565; 39 
 
 Atl., 596. 
 
Proximate Cause of an Injury from Escape of Oil. 335 
 
 the gas company is based on the common law duty of the 
 company to use due care. 1 A gas company is not liable 
 for damages caused by the explosion of gas where gas 
 had been escaping in the basement of a building for a 
 long time, and the owner was aware of the escape and 
 with the knowledge of the escape of gas, sent a servant 
 into the basement with a light and an explosion immedi- 
 ately followed as the proximate cause of the explosion 
 is the bringing of a light in contact with the gas. 2 
 
 SEC. 6. PROXIMATE CAUSE OP AN INJURY FROM THE 
 ESCAPE OF OIL. A pipe line company is not liable for 
 the destruction of a building by fire where the pipe line 
 was built along a ravine and with this line a lateral pipe 
 line connected opposite the dwelling house destroyed; 
 and at the head of the ravine there were a number of oil 
 wells and tanks filled with oil, and also wells at the head 
 of the lateral line and a fire broke out at the wells on the 
 main line and was communicated with the oil in the tanks 
 and the tanks burst from the effect of the fire and the oil 
 flowed down the ravine and carried fire along with it and 
 some parties from a village below threw up an embank- 
 ment opposite the dwelling house and confined the oil 
 which was burning in the dam, and the fire being thus 
 confined caused the lateral pipe to burst and throw a 
 spray of oil on the house, and thus set fire to the house. 
 The proximate cause of the destruction of the house was 
 the fire which originated at the oil wells. 3 So where a 
 person was some distance from the scene of an accident 
 which caused oil to be set on fire and voluntarily came 
 to the place and was injured by an explosion of oil which 
 was on fire, the proximate cause of the injury is the com- 
 ing of the party to the place where he was injured. 4 The 
 owner of a refinery who permits oil to escape is not lia- 
 ble for the destruction of a boat moored in the harbor 
 
 1. Holdings vs. Liverpool Gas Co., 3 C. B., 1. 
 
 2. Lamgan vs. New York Gas Light Co., 71 N. Y., 21. 
 
 3. Behling vs. South W. Pa. Pipe L. Co., 160 Pa., 359; 28 Atl., 
 
 777. 
 
 4. Cleveland, C. C. & St. L., 84 Fed. R., 935; 56 U. S. App., 266. 
 
336 Concurrent Negligence. 
 
 where the oil finds its way to the water and is set on fire 
 by a person negligently throwing 1 a lighted match on the 
 oil floating on the surface of the water and the fire is 
 communicated to a boat. The escape of oil was held not 
 to be the proximate cause of the loss, as it could not have 
 been foreseen in the manner it was brought about. 1 
 
 SEC. 7. CONCURRENT NEGLIGENCE. In an action 
 against a party for not having stop cocks in a pipe so 
 that the oil could be shut off in case of danger, and for 
 the removal of stop cocks which had been in the pipes 
 but were removed, without notice to the servant, the 
 master is liable to the servant for the injuries sustained 
 by the escape of the oil, although the acts of a fellow 
 servant contributed to the injury. When the oil was 
 found to be on fire in this case the injured servant went 
 to the place where the stop cocks had been, but found 
 that the stop cocks were absent and that the only means 
 to prevent the spread of the fire to tank oil cars from 
 which the oil was flowing was to disconnect the pipes 
 from the cars and then the cars could be removed from 
 the place of danger. There was a valve in the car and 
 the servant injured directed another servant to close it 
 and the servant went upon the car to close the valve and 
 others had assured the servant injured that the valve 
 was closed, and the servant then disconnected the pipe 
 and the oil flowed over him and set fire to his clothing 
 and he was badly burned because the valve was not 
 closed. It was held that it took the combined negligence 
 of both the master and the servant who attempted to 
 close the valve to produce the injury and the master was 
 liable. 2 
 
 So where the work of laying gas pipes in a street 
 was let to an independent contractor and the gas com- 
 pany had no control over the work and all the persons 
 who were performing the work in laying the pipes were 
 employed by the independent contractor, but the gas 
 company propelled gas through the pipes to test them 
 
 1. Neal vs. Atlantic Ref. Co., 4 Pa. Dist. R., 49. 
 
 2. Pullman Palace Car Co. vs. Laack, 143 111., 242; 18 L. R., 215. 
 
Contributory Negligence. 337 
 
 and the pipes were not securely joined because of the 
 negligence of the independent contractor, and the gas 
 sent through the pipes escaped and injured a workman, 
 the gas company was held liable for the injuries because 
 it was the duty of the gas company to see that the pipes 
 were in a proper condition before the gas was propelled 
 through them. The combined negligence of the inde- 
 pendent contractor and the gas company was the cause 
 of the injury, and both may be sued separately or jointly. * 
 A natural gas company is liable for injuries to a boy from 
 the explosion of gas on a public highway, although the 
 contract for constructing the gas main was let to an in- 
 dependent contractor, and the work was not yet com- 
 pleted or turned over to the gas company, but the gas 
 which passed through the pipes was being used by the 
 gas company to supply its customers and the pipes so 
 used leaked gas and caused the explosion. Both the con- 
 tractor and gas company were at fault. 2 
 
 SEC. 8. CONTRIBUTORY NEGLIGENCE. When an ac- 
 tion is brought for injuries sustained by reason of the 
 negligence of another, the party who has sustained the 
 injuries must not fail to show that he has performed his 
 duty to avoid the injury. Thus a person cannot recover 
 damages against a gas company when gas had found its 
 way to a house for ten or twelve days, and no notice was 
 sent to the gas company, and the person remained in the 
 house during all the time and became sick from the gas 
 which found its way to the house. It is the duty of the 
 person injured to give notice or move to another place 
 to live. 3 A civil engineer is guilty of contributory negli- 
 gence when he enters a sewer with a light, and he knows 
 that gas is escaping therein, and is presumed to know, 
 from his occupation, that gas mixed with common air 
 
 1. The Chicago Economic Fuel Gas Co. vs. Myers, 168 111., 139; 
 
 48 N. E., 66; The Chicago Economic Fuel Gas Co. vs. 
 Myers, 64 111. App., 270. 
 
 2. Lebanon Light, Heat & Power Co. vs. Leap, 139 Ind., 443; 39 
 
 N. E.,57; 39 L. R. A., 432. 
 
 3. Hunt vs. Lowell Gas Co., 1 Allen, 348. 
 
338 Contributory Negligence. 
 
 will explode when a light is brought in contact with it. * 
 So the owner of a building is negligent when he is aware 
 that gas is escaping in the basement of the building, but 
 has disregarded the danger and sent a servant to the 
 basement with a light, and an explosion immediately fol- 
 lowed, 2 or where gas had been escaping, and a tenant was 
 aware that the gas polluted a well, but after the water 
 was polluted he watered his horses with water taken 
 from the well, he cannot recover for injuries to the horses 
 caused by the water. 3 
 
 A person is guilty of contributory negligence which 
 will bar his representative of a right to recover for his 
 death, when he was informed that gas was present in 
 large quantities in certain rooms of a mine, and was told 
 not to enter the place, and the person injured informed 
 others of that fact, but he entered the place and was 
 killed by an explosion of the gas caused by a light being 
 brought by him in contact with the gas. 4 So where a person 
 who had knowledge of the dangers of gas brought a light 
 close to an oil well from which he knew gas was escaping, 
 from the great noise it made as well as the odor of the 
 gas, he is guilty of contributory negligence and cannot 
 recover. 5 A servant whose death was caused by inhaling 
 gas is not guilty of such contributory negligence as will 
 bar his representative of a right to recover where he was 
 directed to go to a place by the use of a ladder of a cer- 
 tain length, and he selected one much shorter. The de- 
 ceased was held bound to select a course which was freest 
 from danger if there was any difference in the two ways, 
 his negligence was to be determined by the jury. 6 So 
 where a boy was playing about a trench in which gas 
 mains on the street were being laid, and was injured by 
 on explosion of the gas, the boy was held not guilty of 
 coutributory negligence, when he was but six yedrs old, 
 
 1. Oil City Gas Co. vs. Robinson, 99 Pa., 1. 
 
 2. Lanigan vs. New York Gas Light Co., 71 N. Y., 29. 
 
 3. Sherman vs. Fall River Iron Works, 2 Allen, 524. 
 
 4. Lehigh Valley Coal Co. vs. Jones, 86 Pa., 432. 
 
 5. McClafferty vs. Fisher (Pa.), 1 Center R., 571. 
 
 6. Citizens Gas Light & Heating Co. vs. O'Brien, 118 111., 174. 
 
Negligence of Parents, Tenants and Servants. 339 
 
 and there was no evidence that he was warned of the 
 danger or that he was able to appreciate the danger. 1 
 
 SEC. 9. CONTRIBUTORY NEGLIGENCE, PARENTS, 
 TENANTS AND SERVANTS. A gas company is not liable 
 for injuries to an infant child when the gas escapes in 
 the home of the father of the child and the father is 
 guilty of negligence after the escape of the gas where 
 the negligent acts of the father contributed to the injury. 
 The negligence of the father will be imputed to the 
 child. 8 So where a husband followed a servant of the 
 gas company who came to repair a leak of the pipes in 
 the cellar and both carried a light, the negligence of the 
 husband will bar other members of the family from re- 
 covering where an explosion takes place. 8 The negli- 
 gence of a tenant will also bar the owner of the premises 
 from a right to recover when the tenant fails to give no- 
 tice to the gas company of the presence of gas in the 
 house and recklessly brings a light in contact with the 
 gas and causes an explosion. The tenant in such a case 
 represents the owner of the property. 4 So where a store 
 was left in charge of a servant and the gas pipes in the 
 street broke because the street was plowed up and the 
 pipes were thrown out of place and the gas found its 
 way into the store and the servant used a lighted match 
 to find the leak, the negligence of the servant will pre- 
 clude the owner of the building from recovering damages 
 against the gas company. The question of contributory 
 negligence is usually left for the jury to determine, but 
 where the owner alleged in his complaint and the jury so 
 finds that the servant was negligent, a verdict in favor 
 of the owner of the building cannot stand. 5 A gas com- 
 pany cannot escape liability for damages caused by the 
 explosion of gas unless the act of the servant contributed 
 
 1. Rummele vs. Allegheny Heating Co. (Pa.), 16 Atl., 78. 
 
 2. Holly vs. Boston Gas Light Co., 8 Gray, 123; 69 Am. Dec., 233. 
 
 3. Vallee, etc., vs. The New City Gas Co., 7 Am. L. R., 767. 
 
 4. Bartlett vs. Boston Gas Light Co., 117 Mass., 533. 
 
 5. Pine Bluff Water & Light Co, vs. Schneider, 62 Ark., 104; 34 
 
 S. W.,547; 33 L. R. A., 366. 
 
340 Negligence of Fellow -Servants. 
 
 to the injury. Thus, where gas had been escaping 1 for a 
 long" time and the company had notice that gas was es- 
 caping 1 in the basement of a building, and the company 
 assured the lessee that the defect would be cured by the 
 replacing of the old meter with a new one which was 
 done, but the gas continued to escape thereafter to such 
 an extent that the door at the head of the stairs leading 
 to the cellar had to be kept closed so that the gas would 
 not enter the rooms above the cellar and a servant en- 
 tered the cellar with a lighted coal oil lamp and the 
 lamp was suspended from the ceiling 1 of the cellar, and 
 the servant then proceeded to light a gasoline stove and 
 struck several matches to do so and failing 1 to light the 
 stove, she emptied the gasoline out of the cup and threw 
 it on a heap of coal, together with a basin of water, and 
 in the meantime another servant came from the upper 
 room into the basement and left the door at the head of 
 the stairs open and in the room above there were two 
 gas jets burning, not far from the head of the stairs, and 
 the servant proceeded to light the gasoline .stove for the 
 second time but failed, and some two minutes elapsed 
 after she attempted to light the stove the last time and 
 ten minutes after she entered the cellar with the lamp 
 before the explosion took place and about the time the 
 explosion happened the servant observed a bluish flame 
 near the gas jets in the room at the head of the stairs, 
 the negligence of the servant is a question of fact to be 
 determined by the jury and it cannot be said as a matter 
 of law, that the servant was guilty of negligence because 
 the evidence fails to show that the bringing of the lamp, 
 or striking the matches caused the injury when the lamp 
 continued to burn after the explosion in the place where 
 it was suspended by the servant and was uninjured and 
 the gas jets at the head of the stairs were shattered. 1 
 
 SEC. 10. NEGLIGENCE OF FELLOW SERVANTS. The 
 owner of a mine will be relieved from liability for the 
 death of a servant caused by an explosion of gas due to 
 
 1. Consolidated Gas Co. vs. Crocker, 82 Md., 113; 33 Atl., 433; 31 
 L. R. A., 785. 
 
Negligence of Foremen. 341 
 
 the negligence of a fellow- servant. 1 A gas company is 
 liable for the death of one of its employees where its su- 
 perintendent told the employee to go to a place in a gas 
 factory above the apparatus for the manufacture of the 
 gas to remove some boards which were strung on iron 
 girders and the servant went as directed, and when he 
 reached the place and was attempting to return he fell 
 by reason of being overcome with gases which had ac- 
 cumulated at that point and received injuries from which 
 he died. 2 So where there was a leak in a natural gas 
 main and a general foreman of the gas company was 
 ordered by the general superintendent to repair the main 
 and he proceeded to do so at night, and to do this a num- 
 ber of persons were ordered to dig a trench to reach the 
 gas main and the trench was dug about seven feet deep 
 and the trench was filled with gas because the valves 
 were opened and while one of the servants was at work 
 in the trench the foreman approached the place with 
 a lighted lantern and an explosion of the gas followed 
 and injured the servant at work in the trench, the gas 
 company was held liable for the act of the foreman where 
 the foreman had a right to give orders to the men at 
 work and hire and discharge them. 8 A gas company 
 was held not liable for injuries to an employee where the 
 cause of the injury was the negligence of a fellow-servant 
 in striking a match to light his pipe and the gas immedi- 
 ately exploded. The gas had escaped through the end 
 of a pipe because the plug had blown out, but the master 
 in putting up the gas plant used the best material in its 
 construction and hired competent and skillful workmen 
 to do the work and had in use all the modern appliances 
 generally used, and hired a person of great experience 
 to operate and manage the plant. The injury was held 
 
 1. Lehigh Valley Coal Co. vs. Jones, 86 Pa., 432. 
 
 2. Citizens Gas Light & Heating Co., 15 111. App., 400; Citizens 
 
 Gas Light & Heating Co. vs. O'Brien, 19 111. App., 231; 
 Citizens Gas Light & Heating Co. vs. O'Brien, 118 111., 
 174. 
 
 3. Indianapolis Gas Co. vs. Shumack, 23 Ind. App., 87; 54 N. E., 
 
 414. 
 
342 Negligence of Independent Contractor. 
 
 under these facts to result not from the escape of gas 
 but from the explosion of it caused by a fellow servant. 1 
 
 SEC. 11. NEGLIGENCE OF AN INDEPENDENT CON- 
 TRACTOR. A gas company acting under a charter from 
 the state was granted permission by the city to lay gas 
 mains on the streets for the conveyance of gas, and the 
 gas company made a contract with a third person to per- 
 form all the work and furnish the material for the con- 
 struction of the gas mains, and the contractor had com- 
 plete control over the work during its progress and until 
 it was turned over to the gas company, but the gas com- 
 pany reserved the right to test the mains during the pro- 
 gress of the work. An employee of the contractor was 
 injured by an explosion of the gas because the mains 
 were not securely connected and the gas escaped and 
 came in contact with a light. The gas company was 
 held liable, even though the contractor had complete 
 control over the gas main and the injury was caused by 
 the contractor's negligence. As far as third persons' 
 rights are involved, the contractor will be regarded as 
 an agent of the gas company because the right to lay 
 and put down the gas mains in the street was the exer- 
 cise of a right under its charter and of a permission from 
 the city, and the gas company cannot escape liability 
 for its acts by letting the contract to an independent 
 contractor. The court said: "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 power of such corporation with its assent 
 which he could not have exercised independently 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 powers by persons to whom it has permitted 
 their exercise." 2 
 
 1. Allegheny Heating Co.vs. Rohan, 118 Pa. St., 223; 11 Atl.,789. 
 
 2. Economic Fuel Gas Co. vs. Myers, 168 111., 139; 48 N. E., 66; 
 
 Chicago Economic Fuel Gas Co.vs. Myers, 64 111. App.,139. 
 
When the Owner is Liable. 343 
 
 The courts of Pennsylvania have come to an opposite 
 conclusion from the courts of Illinois. A case arose in 
 that state where a natural gas company was granted the 
 right to put down mains to convey natural gas through 
 the streets of a city and the company let the work to a 
 a contractor, and before the work was completed gas 
 escaped and exploded and injured a person. In a suit 
 against the gas company by the person injured the com- 
 pany was held not liable for the negligence of the con- 
 tractor while he was in control of the pipes. In that 
 case the court said: "It is to be regretted that corpora- 
 tions invested with the right of appropriating private 
 property and entering upon 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 responsibilities of the business by letting 
 part of the work requiring the highest degree of care to 
 an independent contractor, but the law was so settled." 
 And a judgment against a gas company in favor of a 
 person injured by reason of the negligence of the inde- 
 pendent contractor was set aside. 1 The doctrine, as laid 
 down in the Illinois cases, finds support in the courts of 
 England. Thus when a person acquired permission from 
 the proper authorities to dig a drain in a public highway 
 and such person hires an independent contractor to do 
 the work, the person who receives the permission is 
 liable for the negligence of the independent contractor. 1 
 The same rule as prevails in Illinois and England is fol- 
 lowed by the courts of many of the states. 8 So where a 
 telephone company was given the right by the local au- 
 thorities to construct a telephone line in the street, the 
 
 1. Chartiers Valley Gas. (Jo. vs. Lynch, 118 Pa., 362; 12 Atl., 
 
 435; Chartiers Valley Gas Co. vs. Waters, 123 Pa., 213; 16 
 Atl., 423. 
 
 2. Gray vs. Pullen, 5 Best & S., 970; 34 L. J. Q. B., 265; 11 L. 
 
 T. U. S., 569; 13 Week. R., 257. 
 
 3. Woodman vs. Met. Ry., 149 Mass., 335; 21 N. E., 482; 4 L. R. 
 
 A., 213; Deming vs. Terminal Ry., 63 N. Y. S., 615; 49 
 App. Div., 493; Vasbeck vs. Kellog(Minn.), 80 N. W.,957. 
 
344 Negligence of Third Person. 
 
 company did all the work itself excepting that it con- 
 tracted with plumbers to solder the joints of the wires, 
 and a plumber in soldering the joints used a benzoline 
 lamp, and to get a flare he dipped the lamp in the molten 
 solder and the lamp, being out of order, exploded and 
 injured a person passing on the street, the person in- 
 jured brought an action against the telephone company, 
 the company was held liable, because it was carrying 
 work on a public highway and it was its duty to see 
 that it was not negligently done, even though the work 
 was performed under a contract. x 
 
 SEC. 12. NEGLIGENCE OF A THIRD PERSON. A gas 
 company entered into a contract with the owner of a 
 house whereby the gas company agreed to put in service 
 pipes from its mains to convey the gas to the premises 
 of the plaintiff to a place outside the meter, located 
 in a building on the premises. Gas escaped from the 
 pipe put down by the gas company and it entered the 
 plaintiff's shop. At the time the gas was found escaping 
 a servant of a gas fitter whom the plaintiff employed to 
 put in pipes in the building, was at work in an adjoin- 
 ing room and upon learning of the leak endeavored to 
 find it. The servant entered the room and had with 
 him a lighted candle, and as soon as he entered the room 
 the gas exploded and damaged the building and stock 
 of goods stored therein. In an action against the gas 
 company for a breach of contract for failure to put in a 
 proper service pipe, the jury found that the pipe was de- 
 fective at the time it was put in and found further that 
 the servant of the gas fitter was also negligent for bring- 
 ing a light in contact with the gas. The court held that 
 the negligence of the servant of the gas fitter did not re- 
 lieve the gas company for putting in a defective pipe, 
 and entered a judgment against the gas company. 2 So 
 where the pipes of an oil company in the streets are in- 
 jured by the acts of the servants of the city and naphtha 
 
 1. Holliday vs. National Telephone Co., 68 L. J. Q. B., 1016 
 
 (1899). 
 
 2. Burrows vs. March Gas & Coke Co., L. R. ; 7 Exch., 96. 
 
Liability of the Owner. 345 
 
 escaped when pumped into the pipes and it finds its way 
 to a sewer and then to a canal which flows under a mill 
 and there exploded and injured a person, the oil company 
 was held liable for the injuries. * It is the duty of a gas 
 company engaged in transporting gas through the streets 
 to see that its mains are in good repair and capable of 
 retaining gas within them, and it is no excuse that the 
 mains were injured by third persons. 2 A gas company 
 is also liable where gas escaped from pipes which the 
 company was bound to keep in repair, and a servant of a 
 third person negligently set fire to the gas which had 
 accumulated in his master's building and the fire was 
 communicated to the building of the third person. 3 
 
 1. Lee vs. Vacuum Oil Co., 54 Hun., 162. 
 
 2. Smith vs. Boston Gas Light Co., 129 Mass., 318; Koelsch vs. 
 
 Philadelphia Co., 152 Pa., 355; 25 Atl., 522; 18 L. R. A., 759. 
 
 3. Pine Bluff Water & Light Co. vs. McCain, 62 Ark., 118; 34 S. 
 
 W., 549. 
 
Injuries Caused by Petroleum and Its 
 
 Products. 
 
 CHAPTER XIX. 
 
 SECTION 1. SALE OF PETROLEUM FOR ILLUMINAT- 
 ING PURPOSES WHEN DANGEROUS FOR SUCH USE. An 
 action may be maintained against distillers and refiners 
 of illuminating oil where they willfully make and sell oil 
 for lighting purposes when they know that the oil is 
 highly inflammable, explosive and unsafe and unfit for 
 such use. So, where a person purchased oil from a retail 
 dealer, and while he was using the oil the lamp exploded 
 and scattered oil all over him and set his clothes on fire, 
 and the explosion was caused by the low fire test of the 
 oil, the manufacturer of the oil is liable for his death. 
 The manufacturer is liable, although the oil passed 
 through the hands of several dealers before it reached 
 the consumer. A manufacturer who sells his product as 
 an illuminating oil bearing a high and safe fire test, 
 "when in fact he knows that its fire test will not exceed 
 64 or 65 degrees Fahrenheit, and that this is a most ex- 
 plosive and unsafe oil for domestic use, can plead noth- 
 ing in defense of this willful, terrible wrong to a confiding 
 community. He bears within him a heart regardless of 
 social duty, evidencing malice in a legal sense in a high 
 degree." Although the oil has passed through several 
 hands, one who knowingly makes and puts upon the mar- 
 ket for domestic use such death-dealing fluid cannot claim 
 exemption from liability because it has passed through 
 several hands. 1 In an action against manufacturers 
 who sold naphtha to a retail dealer for illuminating pur- 
 poses, and the retail dealer sold it to a customer who 
 was ignorant of its dangers and was injured by reason 
 of the naphtha exploding, it was alleged: "That the 
 
 1. Elkins vs. McKean, 79 Pa., 493. 
 
Injuries to Third Persons. 347 
 
 defendants are manufacturers of and dealers in oils and 
 Chase was a retailer in oils and fluids to be burned in 
 a lamp for illuminating 1 purposes; and the defendants, 
 knowing said Chase to be such retailer, sold and deliv- 
 ered to said Chase a certain quality, to- wit: One barrel 
 of very dangerous and explosive liquid, called naphtha, 
 for the purpose of being retailed and to be resold ~Eo~ 
 be burned in a lamp for illuminating 1 purposes, it being" 
 the purpose and the defendants knowing 1 to be the pur- 
 pose of the said Chase to retail and resell the same to 
 the public to be burned in a lamp for illuminating" pur- 
 poses, the defendants knowing the said liquid to be ex- 
 plosive and dangerous to life when used; and the said 
 Chase, not knowing the same to be dangerous and explo- 
 sive, retailed and resold a certain quantity, to- wit: one 
 pint of the same, to the plaintiff, to be burned in a lamp 
 for illuminating purposes; and while the plaintiff was 
 using the same in a lamp for illuminating* purposes, and 
 not knowing the same to be naphtha, or dangerous and 
 explosive, the same ignited and exploded," and the plain- 
 tiff was injured in person and property, etc. These alle- 
 gations show that the manufacturers violated a duty 
 toward the person who was injured, and to the public, 
 because the article was known to be dangerous and ex- 
 plosive, and the manufacturers were bound to contem- 
 plate that the article would explode and ignite and 
 injure a person who was not informed of its dangers and 
 must therefore respond in damages. 1 
 
 The party injured in such case must show by the 
 evidence that the manufacturer knew that the article 
 shipped and sold for illuminating purposes was dan- 
 geros. 2 
 
 SEC. 2. INJURIES TO A SERVANT OP A PURCHASER 
 OF GASOLINE. An oil company was engaged in the busi- 
 ness of refining petroleum and one of the products result- 
 ing from the refining of the oil was a substance known 
 as gasoline. The company had a general agent for a 
 
 1. Wellington vs. Downer Kerosene Co., 104 Mass., 64. 
 
 2. Elkins vs. McKean, 79 Pa., 493. 
 
348 Explosion of Gasoline. 
 
 part of the state when the accident complained of oc- 
 curred, and also had a local agent in the town where the 
 accident occurred. The local agent sold a drum contain- 
 ing" 110 gallons of gasoline to a man and his wife who 
 were engaged in the steam laundry business, and they 
 had in their employ a foreman and a boy 16 years of age 
 who acted as engineer. The drum of gasoline sold was 
 87 degs. gasoline and was stored in a shed at the rear end 
 of the premises and about thirty feet from where the fur- 
 naces of the laundry were located. The drum in question 
 was the second sold to the parties, and when the first 
 drum was unloaded the local agent told the parties who 
 operated the laundry that it was safe to store the gaso- 
 line at the place it was stored, and assisted in unloading 
 it. The gasoline was drawn in ten gallon lots about 
 twice a day and was taken to the laundry for use and 
 was used to heat the ironing machinery and was put in a 
 generator outside the house to operate the machinery. It 
 was the duty of the boy and the foreman to remove the 
 gasoline from the drum for use, and when they were 
 removing some of it in the month of July the gas which 
 had generated in the drum escaped and permeated the 
 atmosphere and came in contact with the fire in the fur- 
 nace and exploded and the boy received injuries from 
 which he died. The gasoline sold was the most danger- 
 ous and explosive and not in general use. No one knew of 
 its dangerous qualities excepting the oil company itself, 
 and there was no notice given of its dangerous qualities 
 when sold, and when the gasoline was sold the agent 
 represented that there was no danger in storing the gas- 
 oline where it was, and the purchaser relied upon the 
 statement of the agent. That the oil company was neg- 
 ligent in employing a person ignorant of the dangerous 
 qualities of the gasoline, and in not warning the pur- 
 chasers of the danger, was found as a fact by the court, 
 and also the boy was not negligent nor did he assume the 
 risk of handling the gasoline. The matters alleged in 
 the petition were in conformity to the facts as above 
 stated. It was held by the court: 
 
Common Law Liability of a Vendor. 349 
 
 First The gasoline was a merchandise which was 
 inherently dangerous, so no contractual relations need 
 exist between the person injured and the vendor of the 
 article. The law imposes a duty on the vendor of the 
 article to give notice of the dangerous qualities of the 
 article sold, and, where the law imposes on him such 
 a duty, he is liable to every person injured whose injury 
 is the natural and probable consequence of his miscon- 
 duct. As the defendant knew of its danger and its agent 
 did not, nor did it inform the agent or the purchaser, 
 consequently the oil company was liable for the death of 
 the boy. 
 
 Second The local agent had a right to make the 
 representations that the gasoline could be stored with 
 safety at the place it was when the agent had general 
 authority to make sales in the town where it was sold, as 
 it comes within his apparent authority and is binding on 
 the company, although such authority was not given by 
 the company. 
 
 Third The oil company was not entitled to show by 
 a general agent that it was the custom not to make any 
 representations as to the storage and use of the gasoline 
 when there is evidence that the agent in this particular 
 instance did make such representations and the pur- 
 chaser was not aware of the custom. Nor would such a 
 custom be binding, because the common law imposes it 
 as a duty on the vendor or person who may handle it to 
 notify a vendee of its dangerous qualities. 
 
 Fourth The proximate cause of the injury was the 
 failure of the oil company to give notice to the purchaser 
 of the dangerous qualities of 87 degs. gasoline and em- 
 ploying an agent ignorant of its dangerous qualities. 
 The fact that the heat from the laundry may have gene- 
 rated gas would not make the negligence of the oil com- 
 pany remote, because the oil was stored where it was 
 directed to be stored by the agent and the agent induced 
 the purchaser to make the purchase by representing that 
 it was safe and the agent knew the use to be made of it, 
 
350 When Dangers Must Be Made Known. 
 
 and the oil company shipped the gasoline directly to the 
 purchaser and must have known the use to be made of it. 
 
 Fifth The vendor of the gasoline could not escape 
 liability by employing" an agent who was ignorant of its 
 dangers in making the sale of the gasoline. 1 
 
 Under the Iowa code, which provided, "no gasoline 
 shall be sold, given away or delivered to any person in 
 this state until the package, cask, barrel or vessel con- 
 taining the same has been marked gasoline, " a dealer in 
 gasoline was held liable to a minor daughter of the pur- 
 chaser when the jug which contained the gasoline was 
 not marked as the statute provided. The statute was 
 construed to be enacted for the protection of all per- 
 sons in the state, and the label was required to warn 
 them of the substance they were handling as its use re- 
 quires extreme care, so the failure of the vendor to brand 
 the article as gasoline was negligence per se. The girl 
 who was injured took the gasoline from a jug which 
 had been used for kerosene and had no knowledge that 
 it was gasoline and put a small quantity of it in a stove 
 to light a fire, and when she lit the gasoline it exploded 
 and set fire to her clothes. The girl was not barred from 
 a right to recover, although her father knew the jug 
 contained gasoline and did not inform her of it, as the 
 negligence of the father, who was the purchaser, will not 
 be imputed to the child. 2 
 
 SEC. 3. DAMAGES RESULTING TO A VENDEE FROM 
 THE NEGLIGENT MANNER IN THE USE OP A CANDLE BY A 
 SERVANT OF THE VENDOR IN HANDLING OIL. A vendor 
 of kerosene was requested by the vendee to deliver a cer- 
 tain quantity of oil at his retail store. The vendor sent his 
 servant to make the delivery at the store. The tank into 
 which the oil was to be put was in the basement of the store 
 and a pipe extended from the tank to and above the floor, 
 and the pipe thus extending from the tank was connected 
 with a pan into which the oil was poured to fill the tank. 
 
 1. Waters-Pierce Oil Co. vs. Davis, Tex. Cir. App.; 60 S. W.,523. 
 
 2. Jones vs. Welden (la.), 87 N. W., 408. 
 
Negligence of a Servant of a Vendor of Oil. 351 
 
 The place where the pan was located was dark, and the 
 servant of the oil company asked a clerk of the vendee for 
 a candle and also a match. The vendee was absent at the 
 time from the store, the clerk furnished a candle, without 
 a candlestick, and told the servant where he could get a 
 match. The servant lit the candle and placed it upon 
 some bundles of kindling wood and attempted to fasten 
 the candle to the wood with tallow, which had melted, 
 and placed it about a foot from the oil pan. 
 
 The servant proceeded to carry in the oil from a tank 
 wagon on the street, and had made three trips and was 
 making the fourth when he discovered that part of the 
 store where the candle was placed and where the pan on 
 which the oil was poured was all in flames, and in a few 
 moments there was an explosion and the front glass in 
 the store was blown out and the store building and its con- 
 tents were damaged by the fire. No claim was made by 
 either party that a lighted candle, if properly placed and 
 fastened, could not be used with safety or that it was care- 
 lessness to use a naked candle to light the place to pour 
 oil in the pan. The plaintiff or his servant was not guilty 
 of contributory negligence if the light he furnished could 
 be used with safety, and the plaintiff was not guilty of 
 any contributory negligence if the servant of the vendor 
 of the oil was acting for the vendor at the time he ad- 
 justed the candle on the wood. The negligence of the 
 vendor's agent in using the candle as he did was a ques- 
 tion of fact to be determined by the jury. 1 
 
 SEC. 4. INJURIES TO SERVANTS CAUSED BY DEFEC- 
 TIVE APPLIANCES. An oil refining company is liable 
 for injuries sustained by a servant of the company when 
 the injury was caused by an explosion of a defective still 
 in the refinery of an oil refining company. The company 
 is liable although the stills were built by an independent 
 contractor and placed in the refinery of the oil company 
 where the president of the oil company furnished plans 
 for the construction of the oil tanks. The court stated 
 
 1. Dore vs. Babcock, 72 Conn., 408; 44 Atl., 736; Aridisco Oil Co. 
 vs. Gilson, 63 Pa. St., 146. 
 
352 Defective Appliances. 
 
 the rule in the following language : "If I employ a well- 
 known and reputable machinist to construct a steam en- 
 gine and it blows up from bad materials or unskilled 
 work, I am not responsible for any injury which may re- 
 sult, 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 its construction. The machinist then becomes 
 my servant and respondeat superior is the rule." 1 A dis- 
 tiller of crude pretroleum is liable for the death of an em- 
 ployee where in the manufacture of crude oil large quan- 
 tities of gas were generated, and when the stills were in 
 operation the gas escaped into a running room, but when 
 not in operation and the stills were empty some of the 
 gas which escaped from the pipes to the running room 
 would find its way back into the stills because there 
 were no stop cocks in the pipes to shut off the gas, and 
 the employee went into the still to repair it, and it was 
 necessary to have a light, and when the light came in 
 contact with the gas in the still the gas exploded and 
 killed the employee. The master was negligent in not 
 furnishing safe appliances and a safe place for the em- 
 ployee to work. The defective condition of the appli- 
 ances may be shown by a conversation which a former 
 employee had with the superintendent of the refinery.* 
 But an oil refining company was held not liable for dam- 
 ages to a servant who was injured by gas from an oil 
 still and the gas came in contact with a light and ex- 
 ploded, when the servant was aware of the danger and 
 had been at the same work for over a year, and was em- 
 ployed to do the work which he was doing when he was 
 injured, and he had no need of the light near the still. 3 
 So where a servant was employed by an oil refining com- 
 pany to manufacture varnish by a process which was not 
 known to any other person but the employee, and naph- 
 tha was used in the manufacture of the varnish, and the 
 grounds of recovery were that the appliances and struc- 
 
 1. Aridisco Oil Co. vs. Gilson, 63 Pa. St., 146. 
 
 2. Nicholas vs. Bush, 6 N. Y. Supp., 601; 53 Hun., 137. 
 
 3. Benfleld vs. Vacuum Oil Co., 27 N. Y. Supp., 16; 75 Hun., 204. 
 
Escape of Naphtha from Pipes. 353 
 
 ture for the manufacture were defective, and that the 
 place where the work was done was unsafe because there 
 was a furnace close to the place, and the fumes or gases 
 from the naphtha would reach the fire and explode, as 
 it did in that case, and the defendant oil company had 
 notice of these defects, the master was held not liable 
 where the servant designed the appliances and there 
 were doors which could be closed so that the gases from 
 the naphtha could not reach the fire in the furnace, 
 which was in an adjoining room, and the servant had 
 full charge of the work and was skilled in the art, and 
 the defendant was owner but a week and the servant 
 was there for many months in the service of another com- 
 pany from which the defendant purchased the plant. * 
 
 SEC. 5. PERSONAL INJURIES RESULTING FROM THE 
 ESCAPE OF NAPHTHA FROM THE PIPES OF AN OIL RE- 
 FINING COMPANY. An oil refining company was en- 
 gaged in refining oils from crude petroleum and one of the 
 products resulting from refining the oil is a fluid sub- 
 stance called "naphtha," which at a low temperature of 
 13 degs. Fahr. gives off a gas which is inflammable and 
 explosive, the explosive power being estimated at 140 
 pounds to the square inch. The laws of the state au- 
 thorized pipes to be laid for the conveyance of petroleum 
 and its products, and in pursuance of said law a pipe 
 line was laid between the place of refining the oil and a 
 gas works about one and one half miles distant. The 
 pipes were three inch, wrought iron and were at one 
 point laid in the streets of a city near a sewer. The gas 
 company consumed about 30,000 gallons of naphtha per 
 month and the naphtha was delivered every two weeks. 
 The gas company had a tank at the gas works to hold 
 the naphtha and it was necessary to pump the naphtha 
 from the refinery to the gas works on account of the 
 grade. A pump was stationed at the refinery and it 
 would take about four hours to fill the tank at the gas 
 works every two weeks. In the meantime when no 
 pumping was being done, some naphtha stood in the 
 
 1. Hank vs. Standard Oil Co., 56 N. Y. Supp., 273. 
 
354 Degree of Care Required. 
 
 pipes. On the day of the accident two of the servants 
 of the refining- company were directed to deliver 15,000 
 gallons of naphtha to the g^as company; one of the serv- 
 ants was to operate the pump at the refinery and the 
 other was to go to the receiving 1 tank at the gas works to 
 measure the tank and open the stop cocks to permit the 
 naphtha to flow into the tank. A precise time was agreed 
 upon between the servants as to when the naphtha 
 would commence to be pumped. The stop cocks were 
 opened and the pumps commenced to work at the time 
 agreed upon and the servant at the receiving tank re- 
 mained there for two hours and over and no naphtha 
 came through the pipes, and then he notified an officer 
 of the gas company, who in turn notified the parties at 
 the pump and operations ceased. Two weeks previous 
 to this time the city was constructing" a sewer and in 
 blasting some rocks in the street, broke the pipe of the 
 refining company which conveyed the naphtha to the 
 gas works and the naphtha so pumped into the pipes 
 escaped and found its way into a sewer. Several explo- 
 sions followed the escape of the naphtha and in one of 
 them a building was blown up and a person was killed, 
 and his representatives brought an action against the 
 oil company for damages. The pipes were of the best 
 material and were in good order until broken by the city 
 contractor. The court laid down the following rules as 
 applicable to the facts: 
 
 First In view of the danger likely to arise from the 
 use of broken pipes for the conveyance of naphtha, a 
 case was made for the consideration of a jury under 
 proper instructions as to the law applicable to the facts. 
 When the safety of human life is in question a very high 
 degree of care is required in conducting a lawful busi- 
 ness, and an escape of naphtha from its pipes along 1 
 any part of the line of pipe would be dangerous to life 
 and property. 
 
 Second If the pipes were laid under a rig-ht granted 
 by the state, and if proper material was used and laid in 
 a proper manner, the pipe line itself was not a nuisance 
 
Benzine Used to Make Paint. 355 
 
 either in fact or in law, and the liability of the oil com- 
 pany could not be determined on the ground that the oil 
 company maintained a nuisance in fact or in law. 
 
 Third It was a question to be considered by the 
 jury whether the oil company was not guilty of negligence 
 in not ascertaining that the pipes were in good order 
 by actual inspection or by other means before the naph- 
 tha was allowed to be pumped into them. Whether or 
 not the servants were guilty of negligence in not ap- 
 plying the pumps before the stop cocks were open at the 
 receiving tanks to determine whether the pipes were in 
 good order or not was for the jury. 
 
 It was also a question to be determined whether or 
 not the servant of the oil company was not negligent in 
 waiting so long before notice was sent to the parties 
 operating the pumps that no naphtha was being dis- 
 charged at the receiving tank. 
 
 Fourth The defendant was not entitled to an in- 
 struction that if the pipes were broken by a third person 
 and the defendant had no notice of the break, and that 
 the break caused the escape of the naphtha, where it was 
 admitted that a third person broke the pipe, and the de- 
 fendant had no notice and the action was prosecuted on 
 other grounds. 1 
 
 SEC. 6. INJURIES TO SERVANTS IN THE USE OP 
 PAINT OP WHICH BENZINE is AN INGREDIENT. A master 
 is not liable for the injuries received by a servant who 
 went into a water tank about twelve feet deep and ten 
 feet in diameter to paint the tank, and the paint fur- 
 nished by the master was in common use for about 
 twelve years, and had been used by the person injured, 
 and the master did not know that the paint was danger- 
 ous. The paint which caused the injury was supposed 
 to contain a quantity of benzine, and when the cans were 
 opened and the paint applied to the sides of the tank 
 the paint gave off a quantity of gas which came in contact 
 with the light used by the painters and exploded. The 
 
 1. Lee vs. Vacuum Oil Co., 7 N. Y. Supp., 426; 54 Hun., 156. 
 
356 Duty of the Master Toward Servants. 
 
 master is only required to provide material and imple- 
 ments as are ordinarily used by persons in the same busi- 
 ness, and is not required to secure the best known 
 material or subject the material to a chemical analysis 
 to discover some remote or possible hazard incurred by 
 their use, and, as the paint was in common use for the 
 purpose for which it was used, the master was not 
 liable. 1 The same rule was laid down in Mass, in a like 
 case. 8 
 
 SEC. 7. INJURIES TO SERVANT FROM HANDLING PE- 
 TROLEUM. An oil company, engaged in the business of 
 handling, transporting and vending oil, turpentine, gas- 
 oline, kerosene and other products of petroelum, is liable 
 for the death of a boy who was engaged as a servant of 
 the oil company and was inexperienced in the dangers con- 
 nected with the business and the master failed to instruct 
 him as to the danger. Thus, where the oil comgany had 
 three rooms leased in a certain town, and one of the rooms 
 was below and two above, and the windows in the rooms 
 above were some distance from the ground, and the 
 door had a defective lock, and could not be opened at 
 times, and the boy did most of the work outside, and 
 after working outside for some time he was instructed 
 by the superintendent in charge to go to the office and 
 get warm, and the boy's clothing was saturated with the 
 oils which he had been handling, and the boy went to 
 the office as directed, and in the office was a hot stove, 
 and the boy's clothing caught fire, and he could not go 
 out through the door as the lock would not work, and he 
 jumped through a window in the room above and received 
 injuries from which he died, the oil company was held to 
 be liable for the death of the boy, because it was the duty 
 of the master to warn the boy of the danger, on account 
 of the condition of his clothes. 8 
 
 SEC. 8. DAMAGES RESULTING PROM THE ESCAPE OF 
 OIL. An oil refining company is not liable for damages 
 
 1. Allison Mfct. Co. vs. McCormick, 118 Pa., 519; 12 Atl., 273. 
 
 2. Lyons vs. Boston T. & L. Co., 163 Mass., 143; 39 N. E., 800. 
 
 3. Wallace vs. Standard Oil Co., 66 Fed. R., 260. 
 
Presumption of Negligence. 357 
 
 where an explosion takes place in the refinery and the 
 oil escapes and flows down along* a pipe line and sets 
 fire to a lighter in a harbor which had been used for the 
 conveyance of oil, and the lighter exploded and set fire 
 to a vessel moored in the harbor, and the evidence does 
 not show that the oil company was negligent in the 
 operation of its works and the explosion at the refinery 
 was caused by such negligence. The bare fact that 
 there was an explosion at the factory will not raise a 
 presumption that the oil company was negligent, though 
 the oil company does not account for the explosion. The 
 reason given for such a rule is: "That there is a general 
 disposition among men to preserve their property and 
 escape liability, and ordinarily their motives will secure 
 that degree of care and caution which the safety of the 
 public demands; and, hence the presumption of duty 
 performed which in cases of fire will protect him until 
 the facts be proven from which negligence can be in- 
 ferred." 1 Other courts have held, however, that there is 
 a presumption of negligence where an explosion occurs 
 and this presumption must be overcome by evidence. 
 The rule is based upon the principle that accidents and 
 injuries "which do not ordinarily happen when reason- 
 able 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 reasonable care 
 was taken to avoid the accident; and also upon the prin- 
 ciple of evidence that he who has peculiarly within his 
 power the means of producing evidence of reasonable 
 care shall be required to produce it." 2 
 
 The presumption of negligence is overcome when 
 there is evidence that due care was used and that proper 
 rules were laid down to govern the workman and that 
 only a few lights were used and they were far away and 
 below the rims of the tanks, and that no smoking was 
 
 1. Cosulick vs. Standard Oil Co., 122 N. Y., 118; 25 N. E., 
 
 259. 
 
 2. Ware vs. Davis Oil Co., 61 Fed. R., 631; Judson vs. Giant 
 
 Powder Co., 107 Cal., 549; 29 L. R. A., 718. 
 
358 Rescue of One in Danger. 
 
 allowed about the factory and only a part of the oil 
 stills had been in use on the day of the accident. 1 
 
 SEC. 9. DEATH OR INJURY RESULTING FROM GO- 
 ING TO THE ASSISTANCE OF ONE IN DANGER. An oil 
 company guilty of no negligence is not liable for the 
 death of a person who lost his life in attempting to 
 rescue a servant who was in danger of losing his life be- 
 cause of the presence of gas in an oil tank into which 
 the servant went in the performance of his service for 
 the oil company, when the oil company was guilty of no 
 negligence toward the servant or the person who lost 
 his life. 2 The rule in such case is: The party against 
 whom the action is brought must be guilty of negligence 
 toward the person who was in danger or to the person 
 who went to the person who was in danger in order 
 to hold the party claimed to be negligent liable. 8 A 
 city, however, is liable for the death of a boy where 
 the city dug a trench in the street and left it open 
 for many days and the men who had worked in the 
 trench had to abandon it because large quantities of 
 deadly gases accumulated in the trench and there were 
 cross pieces in the trench which extend from side to 
 side and thus made almost a perfect ladder from the top 
 to the bottom, and no watchman was placed to guard 
 the ditch or warn people of the danger of the gases 
 below and no warning sign was posted, and the place 
 where the trench was dug was in a populous part of the 
 city and near a church and a public school, and boys and 
 men were accustomed to congregate near the public 
 school because there was a vacant lot connected with 
 the school and the lot was used as a play ground, and 
 some boys had been engaged in playing ball and the ball 
 had rolled into the trench, and the boy who lost his life 
 went to get the ball for other boys, but when he got to the 
 
 1. Ware vs. Davis Oil Co., 61 Fed. R., 631. 
 
 2. Jackson vs. Standard Oil Co., 98 Ga., 497; 26 S. E., 60. 
 
 3. Donahue vs. Wabash, St. L. & P. Ry., 83 Mo., 560; Gramlich 
 
 vs. Winst, 86 Pa., 74; Pennsylvania Co. vs. Langendorf , 48 
 Ohio St., 316; 28 N. E., 172; 13 L. R. A., 190. 
 
Business Negligently Conducted. 359 
 
 place of descent another boy had gone into the trench, 
 and as he was partially up he was overcome with gas 
 and fell to the bottom and the other boy who lost his 
 life went to his rescue. 1 The city was held to be negli- 
 gent and was bound for the consequences of its neglect, 
 though these consequences were not and could not by 
 any ordinary prudence have been anticipated. So where 
 the negligence of the party against whom the action is 
 brought is established, negligence would not be charged 
 to the boy who lost his life in attempting to rescue the 
 one in peril, and although the acts of the boy may seem 
 to be reckless and rash, yet these acts must be consid- 
 ered with the circumstances that the boy had no time to 
 think but must act at once, and that others had gone to 
 the bottom of the trench before and returned safely and 
 the boy whom he went to rescue returned after recover- 
 ing from the effects of the gas, and above all he went to 
 the rescue of a human being who was in great and immi- 
 nent danger and consequently should not be charged 
 with errors of judgment resulting from the excitement 
 and conclusion of the moment. 2 The doctrine laid down 
 in the case above is almost universally recognized. 3 
 
 SEC. 10. NEGLIGENCE FROM THE NEGLIGENT MAN- 
 NER OF CONDUCTING THE BUSINESS OF HANDLING OIL. 
 An oil company engaged in the business of storing and 
 vending of petroleum is bound to keep its premises in 
 such a condition that it will not endanger the property 
 of others by reason of fires starting on its premises on 
 account of the inflammable condition of the premises and 
 
 1. Corbin vs. Philadelphia, 195 Pa., 461;45 Atl., 1070; 49 L. R. A., 
 
 715. 
 
 2. Corbin vs. Philadelphia, 195 Pa., 461; 45 Atl., 1075; 49 L. R.A., 
 
 715. 
 
 3. Eckert vs. Long Island Ry., 43 N. Y., 503; Spooner vs. Del., 
 
 L. & W. Ry., 115 N. Y., 22; 21 N. E., 696; Gibney vs. 
 State, 137 N. Y., 1; 33 N. E., 142; 19 L. R. A., 365; Pey- 
 ton vs. Tex. & Pac. Ry., 41 L. A. Am., 861; 6 So. 690; 
 Maryland Steel Co. vs. Mooney, 88 Md., 482; 42 Atl., 60; 
 42 L. R. A., 842 ; Pennsylvania Co. vs. Langendorf, 48 Ohio 
 St., 316; 28 N. E., 172; 13 L. R. A., 190. 
 
360 Sale of an Article Not Ordered. 
 
 surroundings. Thus, when an oil company permitted the 
 floors and walls of a building" in which oil was kept to 
 become saturated and allowed the ground about the 
 building in which oil was kept to become in the same 
 condition and also allowed large quantities of jackets 
 used on cans and barrels to accumulate about the prem- 
 ises, the oil company was held guilty of negligence and 
 was liable where the premises were set on fire by a pass- 
 ing train and the fire was communicated to a building 
 which was destroyed. The fact that the house was built 
 and used by the oil company and several fires had oc- 
 curred before the house of the plaintiff was built near 
 by did not affect the plaintiff's rights as he assumed no 
 risks by building where he did. 1 A person would as- 
 sume no risk even though the person was the vendor of 
 the land and had notice of the manner in which the 
 defendant conducted its business was dangerous. 1 
 
 In an action to recover damages caused by fire being 
 communicated from a building in which the products of 
 crude petroleum were stored because of the negligent 
 manner of keeping the premises and storing the products, 
 evidence of the custom and usage of well appointed and 
 managed companies engaged in the same business is 
 competent evidence on the question of care and diligence 
 required in the proper care and conduct of the business, 
 but evidence of the custom and usage of one particular 
 concern engaged in the same business is not competent, 
 nor is a witness competent to testify as to the custom 
 and usage of such concerns where he is acquainted only 
 with the management of one concern. 3 
 
 SEC. 11. SALE OF A DIFFERENT FLUID THAN THE ONE 
 ORDERED BY THE PURCHASER DECEPTION IN BRANDING 
 THE FLUID. A vendee ordered a barrel of puroline from 
 
 1. Waters-Pierce Oil Co. vs. King, 6 Tex. Cir. App., 73; 24 S. W., 
 
 700. 
 
 2. Judson vs. Giant Powder Co., 107 Col., 549; 40 Pac., 1020; 29 
 
 L. R. A., 718. 
 
 3. Standard Oil Co. vs. Swan, 89 Tenn., 334; 14 S. W., 928; 15 S. 
 
 W.,1068; 10 L. R. A., 366. 
 
Injuries to a Servant in the Use of Petroleum as a Fuel. 861 
 
 a vendor of oils and the vendor, instead of giving the 
 vendee the article ordered, filled the order by giving the 
 vendee gasoline at 74 degrees gravity and branded the 
 package as "puroline." Puroline and gasoline were both 
 sold for illuminating purposes and both are the products 
 of petroleum, and both are gas bearing fluids. Evidence 
 of chemists and experts and dealers in the fluids showed 
 that there was scarcely any more danger in the use of 
 gasoline at 74 degrees than in the use of puroline, and if 
 there was any difference in the danger it was so slight 
 that it could not be measured. All purchasers were 
 inlormed through circulars that 74 degrees gasoline was 
 the same as puroline, and that both were non-explosive, 
 but both produced a gas which was inflammable and 
 would ignite when brought near a flame. And it appeared 
 that an agent of the purchaser who ordered the package 
 bought a package of the dealer previous to this one and 
 the order was filled in this way and a bill sent for the 
 price of the article which was stated to be 74 degrees 
 gasoline. The plaintiff's mill was burned and he claimed 
 the damages were the result of the substitution. The 
 dealer was held not liable for the substitution of gaso- 
 line for puroline under the circumstances as the differ- 
 ence existed only in name and not in the goods, and this 
 is especially true when the package was marked "Ex- 
 plosive and Dangerous" by an inspector of such fluids, 
 as was required by a state statute. 1 
 
 So where the servants of the owner of the premises 
 drew the gasoline from the package at night and used a 
 lantern as a light and the dealer in the oils warned the 
 purchasers not to draw the fluid at night and the gases 
 which escaped from the package caught fire from the 
 lantern and burned the building, the vendor of the fluid 
 is not liable. 2 
 
 SEC. 12. INJURIES TO SERVANT IN THE USE OF PE- 
 TROLEUM AS A FUEL. A user of crude petroleum as a 
 
 1. Socala vs. Chess Corley Co., 39 La., 344; 1 So., 824. 
 
 2. Socala vs. Chess Corley Co., 39 La., 344; 1 So., 824. 
 
362 Question for a Jury. 
 
 fuel is liable for injuries received by a servant of the 
 user when the master was negligent in not having- a suf- 
 ficient number of stop cocks in the pipes, so that the oil 
 could be shut off in case of danger, and the pipes had 
 been changed without notice to the servant, and the num- 
 ber of stop-cocks in the pipes were less in the new pipes 
 than had been in the old pipes. Thus, where oil was used 
 for burning brick, and the servant had been employed to 
 assist in the work, and there was a small pipe which 
 entered the kiln, and where the burner was placed there 
 was a stop cock, and the burner and small pipe was con- 
 nected with a rubber tube, which often bursted, and there 
 was also a valve in the feed pipe and also a valve in the 
 tank, and the latter valve could be turned only by the 
 use of a wrench, and the new pipe put in had no stop 
 cock in the feed pipe, and the rubber tube bursted, and 
 the oil escaped and enveloped the stop cock in the small 
 pipe with fire, and the stop cock could not be used, and 
 the servant went to where the stop cock was in the old 
 pipe and found the new pipe had none, and then he called 
 the assistance of servants to shut off the valve in the 
 tank, and a servant went upon the tank, and the ser- 
 vant who was at the place where the pipe was connected 
 with the tank below, was assured repeatedly by other 
 servants that the valve in the tank was adjusted, and 
 the servant below unscrewed the pipe so that the tank 
 of oil could be removed, so as to prevent an explosion 
 and the spread of fire, and the valve in this tank was not 
 adjusted, and when the pipe was unscrewed the oil flowed 
 upon him and caught fire and he was badly burned, the 
 court held that: First, the question of negligence as to 
 the absence of the stop cock was a question of fact to be 
 determined by the jury, and that a legal duty vested 
 upon the master to notify the servant as to the change 
 made in the pipes. 
 
 Second: Whether the servant who undertook to turn 
 the valve was negligent or not, the fact that he was a 
 fellow-servant and negligent would not bar him from a 
 right to recover. The injury was caused by reason of the 
 
Escape of Oil Into Sewers. 363 
 
 master in not furnishing proper appliances and giving no- 
 tice to the servant of the change in appliances, combined 
 with the negligence of the fellow-servant to cause the 
 injury. The negligence of the fellow-servant was not a 
 new and efficient cause of the injury, but was an incident 
 of the original negligence set in motion by the master, 
 and these are questions of fact to be determined byar- 
 jury properly instructed by the court. 
 
 Third: Whether the servant was negligent in going 
 under the tank to uncouple the pipe so the car could be 
 moved, under the circumstances was a question of fact 
 for the jury. The servant was not guilty of negligence 
 in going under the tank to uncouple the pipe, and in so 
 doing left a place of safety when there was no apparent 
 danger at the time he went to the place, but an unfore- 
 seen danger arose thereafter. 1 So where a person was 
 employed to put on a tin roof on part of a building, and 
 other men employed to put on a shingle roof on other 
 parts of the same building, and the person employed to 
 put on the tin roof used a gasoline fire pot, and as the 
 fire was blowing hard he put up some shingles on both 
 sides to prevent the wind from blowing the flame, but 
 the shingles caught fire and he replaced the shingles 
 with two pieces of tin, and the tin became hot and re- 
 flected the heat of the fire pot on the gasoline tank which 
 supplied the fire pot, and the tank exploded and injured 
 an employee who was putting on the shingles, and the 
 employee who was putting on the tin roof knew that 
 gasoline was explosive when heat was applied to it, the 
 employee was held to be negligent, and he and the mas- 
 ter were held jointly liable for the injuries which the 
 servant sustained. a 
 
 SEC. 13. DAMAGES RESULTING FROM THE ESCAPE 
 OF OIL INTO SEWERS. A party who has stored upon his 
 premises petroleum is liable for damages, when the pe- 
 troleum was permitted to escape to the soil from the tank 
 
 1. Pullman Palace Car Co. vs. Laack, 143 111., 242; 32 N. E., 
 
 285; 18 L. R. A., 215. 
 
 2. Evans vs. Hoggatt, 9 Kan. App., 540; 59 Pac., 381. 
 
364 Explosion of Gas Formed from Petroleum. 
 
 in which it was stored and the petroleum then percolated 
 through the soil and found its way to a sewer built by the 
 city and gases were formed from the oil in the sewer and 
 found their way to where a bakery was being- conducted 
 and the gases contaminated the atmosphere and injured 
 the products manufactured by the baker. The fact that 
 the sewer conveyed the oil and gases to the premises of 
 the baker, and they would not have reached the prem- 
 ises but for the sewer, will not make the negligence of 
 the owner of the oil remote, because the sewer was a 
 condition rather than a cause, and was not an independent 
 cause of the injury, so as to make it the proximate cause 
 of the injury. 1 But a company which had stored on its 
 premises oil is not liable for damages caused by an explo- 
 sion of gases from oil which had been turned into a sewer 
 by the chief of the fire department of the city, althoug-h 
 the oil escaped from the premises of the oil company, but 
 oil escaped because a fire broke out on the premises of 
 the oil company and escaped during" the progress of the 
 fire, and the evidence did not show the oil company was 
 negligent in causing the fire, and that the oil would not 
 find its way into the sewer in which it was at the time 
 of the explosion, but the chief caused a trench to be cut 
 so that the oil would flow into the sewer, and no person 
 or officer of the company gave the men any direction as 
 to the digging of the trench to turn the oil into the sewer, 
 nor was the trench dug on the premises of the oil com- 
 pany. 1 A city, however, is liable for the death of a per- 
 son which was caused by an explosion of gases which 
 arose from crude petroleum turned into the sewer which 
 had escaped from the premises of a person during a fire. 
 The courts will take judicial notice that inflammable 
 gases arise from crude petroleum, and the circumstances 
 that crude oil was turned into a sewer and formed gases 
 which exploded and killed a person are evidence of some 
 
 1. Brady vs. Detroit Steel & Spring Co., 102 Mich., 277; 60 N. 
 
 W.,687; 26 L. R. A., 175. 
 
 2. Fuchs vs. St. Louis, 133 Mo., 168; 31 S. W., 115; 34 L. R. A., 
 
 118. 
 
Liability of an Oil Inspector. 365 
 
 neglect on the part of the city in caring- for the sewer 
 and should go to the jury. l 
 
 SEC. 14. LIABILITY OF OIL INSPECTOR FOR FALSELY 
 BRANDING OIL AS SAFE FOR ILLUMINATING PURPOSES. 
 A statute provided for an oil inspector of all illuminating 
 oil made from petroleum and the inspector was to pro- 
 vide himself with instruments for making the test and 
 an oil tester which was approved by the board of health 
 was to be used and the inspector and his deputies did 
 provide themselves with testers recommended and ap- 
 proved by the board of health. All oils which were fit 
 for illuminating purposes were to be branded: "Approved; 
 
 flash test degrees" and those unfit for illuminating 
 
 purposes were to be branded: "Rejected for illuminating 
 
 purposes; flash test degrees," the blanks were to be 
 
 filled with the degrees. All oil which would emit a com- 
 bustible vapor at a temperature of 105 degrees standard 
 Fahr. closed test were to be rejected for illuminating 
 purposes. The inspector and his deputies were re- 
 quired to make bonds for the due performance of their 
 duties. The statute also provided: "If any inspector 
 or deputy shall falsely brand or mark any barrel * * * 
 or be guilty of any fraud, deceit, misconduct or culpa- 
 ble negligence in the discharge of his official duties he 
 shall be deemed guilty of a misdemeanor and upon a con- 
 viction thereof shall be fined not to exceed $100 or im- 
 prisoned not to exceed thirty days and be liable to the 
 party injured for all damages resulting therefrom." A 
 certain quantity of oil was inspected by the deputy oil 
 inspector and the barrels branded: "Approved; flash 
 test, 106 degrees." A certain quantity of the oil was 
 sold to a merchant and again sold by him to a consumer, 
 who was injured by an explosion of the oil while using 
 it in a lamp and the person brought an action against 
 the oil inspector and the deputy for injuries and dam- 
 ages resulting from the explosion. The party injured 
 alleged that the oil was not equal to the standard re- 
 
 1. Fuchs vs. St. Louie, 133 Mo., 168; 31 S. W., 115; 34 L. R. A., 
 118. 
 
366 Oil Inspectors Duties are Statutory. 
 
 quired by law and the fire and explosion were caused 
 thereby and the brand placed on the barrels was false 
 and fraudulent. It was held by the court: 
 
 First The liability of the inspector and his deputies 
 and their bondsmen were wholly statutory because "the 
 duties of the inspector and his deputies are prescribed 
 by statute and by rules and regulations adopted by vir- 
 tue of the statute; and the obligation of their sureties is 
 ascertained from the statute, the rules and regulations 
 adopted pursuant thereto, and the conditions of the 
 bonds they have signed." 
 
 Second The statute made the inspector and his 
 deputies liable both criminally and civilly and was there- 
 fore a penal statute and must be construed strictly. To 
 commit a crime one must have a guilty intent as a gen- 
 eral rule and the word "false" or "falsely" as used in 
 the statute means more than inaccurate, erroneous or 
 faulty. The word includes not only the element of error 
 but also an intentional wrong and the inspector or his 
 deputies were not liable without intentional wrong or 
 culpable negligence on their part. Where the inspection 
 was made according to law and the rules prescribed by 
 the state board of health and the oil flashed at a tem- 
 perature of 106 degrees closed test and the test was 
 made with a thermometer recommended and furnished 
 by the board the inspector or his deputies are not liable 
 although the closed test may be below 105 degrees. 
 
 Third When the oil inspector or his deputies used 
 instruments which had been approved and furnished by 
 the state board of health and the inspector or his depu- 
 ties had no reason to believe that the instrument or in- 
 struments were not in good order and if the instrument 
 was used with due care as the statute and rules of the 
 board provided and the oil was correctly branded as 
 shown by the test, the inspector or his deputies were not 
 liable for any error though the inspector or his deputies 
 act in a ministerial and not in a judicial capacity in test- 
 ing the oil. 
 
Shooting Oil and Gas Wells. 367 
 
 Fourth An oil inspector or his deputy is not liable 
 if when oil was branded by him it came up to the stand- 
 ard required by statute when it was in fact below the 
 standard required by statute if an explosion of the lamp 
 in which the oil was used was not caused by the low 
 grade of oil but was the result of other causes. * 
 
 SEC. 15. INJURIES AND DAMAGES TO THIRD PER^ 
 SONS FROM SHOOTING OIL AND GAS WELLS INJUNCTION 
 AGAINST SHOOTING A WELL. A company was engaged 
 in the manufacture of explosives and in cleaning out oil 
 and gas wells by shooting 1 explosives therein. The ex- 
 plosives used were highly dangerous. The company was 
 hired by the owner to supply the explosives and set 
 them in place in the well and also the owner claimed 
 that the explosives were to be fired off by the company. 
 The explosives were set in place to be exploded in the 
 well by the company and the company also supplied an 
 instrument called a "go-devil" to be dropped into the 
 well to fire off the explosives. The company contended 
 that the owner of the well was in control of it and 
 that the owner was instructed by an ag*ent of the com- 
 pany not to let the "go-devil" into the well until the 
 next morning, but that the owner let the "g^o-devil" into 
 the well at 7:30 p.m. It appeared that the well was sit- 
 uated in a village and that the fires and lights were burn- 
 ing at that time in the evening because it was in the 
 month of September and was dark and cold. It was 
 well known that w T hen a well was shot that larg'e quan. 
 tities of g'as would escape from the well and would settle 
 near the ground under certain conditions of the atmos- 
 phere and would explode if it came in contact with a 
 flame. It was also in evidence that a certain engine was 
 near the well and was fired up at the time. When the 
 well was shot the gas did escape and exploded and en- 
 wrapped a boy in the flames and he received permanent 
 injuries therefrom. 
 
 A person who had followed the business of shooting- 
 wells for many years, and was acquainted with the du- 
 
 1. Hatcher vs. Dunn, 102 la., 411; 71 N. W., 343; 66 N. W., 905. 
 
368 Injuries to Third Persons. 
 
 ties of one called to shoot a well, and knew the prevail- 
 ing custom in that regard, may be asked the question 
 that, if the shooter of a well brings 100 quarts of nitro- 
 glycerine to a well, and the nitro-glycerine had been 
 placed in shells and lowered into the well, and the well 
 logged in, and the derrick boarded up except the open- 
 ing facing toward the engine and belt house, and the 
 well was a distance of from 80 to 200 feet from residences 
 and buildings of a village and surrounding the well, and 
 the village contained about 1,200 people, and the condi- 
 tion of the atmosphere was such that the gas liberated 
 from the well would settle near the earth: Would the 
 hour of 7:30 p.m. on September 7 in any year, when 
 darkness had intervened so that fires and lights are lit 
 in residences and business houses, be in his opinion 
 a proper time to shoot such well; that is to say, ex- 
 plode such torpedo therein?" To which question the wit- 
 ness answered: "It is not a proper hour." The fact 
 called for by such a question was not an ultimate fact in 
 issue and was not a subject of common knowledge or one 
 that the jury could as well judge as the witness. So the 
 question and answer were proper because the expert 
 knew all the dangers incident to the explosion at such a 
 place and hour with the surroundings, and the jury may 
 be aided in forming an opinion by one familiar with the 
 danger, otherwise the jury may not be able to draw a 
 correct conclusion from the proof of the facts from which 
 the conclusion was drawn by the expert. The torpedo 
 company was not released from liability because after 
 placing the torpedo in the well the owner told the ser- 
 vant of the torpedo company that he would drop the 
 "go-devil" to explode the torpedo and the owner did ex- 
 plode the torpedo. In such a case the question of negli- 
 gence depended upon the entire transaction and was a 
 question of fact for the jury. 
 
 The torpedo company was liable for the injuries sus- 
 tained if the torpedo company was hired to shoot the well, 
 although the owner of the well dropped the "go-devil" 
 into the well because the services of the company in shoot- 
 
Injunction to Prevent Shooting of Oil or Gas Wells. 369 
 
 ing" the well did not end until the torpedo was exploded 
 and the act of the owner was the act of the company, and 
 the company was resposible for selecting" a wrong hour or 
 for delaying 1 the shooting" until darkness set in. The 
 company would not be liable if the duties of the company 
 ended by putting- the torpedo into the well and the owner 
 had full control over the well and power to decide when 
 the well should be shot. 
 
 If the owner and the torpedo company were both 
 engaged jointly in shooting the well, and both are made 
 defendants, one defendant cannot shift the liability ex- 
 clusively on the other when a third person was injured 
 from the negligent manner in doing- the work, for either 
 or both of them are liable. 1 
 
 A gas company which bored a well in a thickly popu- 
 lated city, and hauled nitro-glycerme to the well to be 
 used in shooting- the well to increase the flow of gas, will 
 be enjoined from carrying its work into execution where 
 the lives of the people of the city would be jeopardized 
 by such an act. The company must be content with the 
 natural flow of gas when it selected a populated city as 
 a place to bore a gas well. 2 
 
 1. Ohio & Indiana Torpedo Co. vs. Fishburn, 61 Ohio, 608; 56 N. 
 
 E., 457. 
 
 2. Peoples Gas Co. vs. Tyner, 131 Ind., 277; 31 N. E., 59; 16 L. 
 
 R. A., 443. 
 
TRANSPORTATION OF OIL. 
 
 CHAPTER XX. 
 
 SECTION 1. INJURIES TO THE GOODS OF ANOTHER 
 SHIPPER. An oil refining company may recover the value 
 of a certain quantity of refined oil which was turned over 
 to a common carrier to be shipped to a certain point, and 
 the oil so shipped was burned, because, on the same train, 
 there was a car of crude petroleum and the car caught 
 fire and the part of the train on which the refined oil was 
 stored could not be separated from the car which con- 
 tained the crude petroleum, and which was on fire be- 
 cause the cars could not be uncoupled on account of a 
 defect in the coupling's. The duty of a common carrier 
 is to provide a vehicle in all respects adapted to the pur- 
 poses of carriage, and so constructed to encounter the 
 ordinary risks of transportation, and where merchandise 
 is shipped on the same train with highly combustable 
 materials it is the duty of the carrier to take every avail- 
 able precaution against the communication and spread 
 of fire if it should occur. 1 
 
 SEC. 2. THE FACTS AS STATED BY THE COURT IN 
 RENDERING ITS DECISION AND THE RULING OF THE 
 COURT IN THE CASE OF GOODLANDER MILL, Co. vs. 
 STANDARD OIL Co. 24 U. S. APP., 7; 27 L. R. A., 583. 
 The facts, as found by the court, were as follows: 
 "That in November, 1889, the Standard Oil Company 
 shipped a tank car of crude petroleum containing 6000 
 gals, from Lima, Ohio, to the Fort Scott Gas Co., of 
 Fort Scott, Kansas. The tank car had a discharge pipe 
 in the bottom and about the center of the tank some four 
 inches in diameter and projecting about six inches below 
 the bottom. The projection was threaded to receive a 
 
 1. Empire Transp. Co. vs. Wamsutta Oil Co., 63 Pa. St., 14. 
 
Facts in the Goodlander Case. 371 
 
 heavy cap screw. Within the tank the discharge pipe is 
 fitted with a heavy valve to prevent the escape of oil. 
 The valve rests upon a shoulder in the upper part of the 
 discharge pipe. Below the shoulder there are four con- 
 caves made in the valve, to permit the flow of oil upon 
 raising the valve. An inflexible iron rod is attached to 
 the valve, extending through the dome on top of tfie 
 tank and projecting a foot or more above it. Within the 
 tank at the top there is a coiled wire spring arranged to 
 hold the rod down and keep the rod in position, clos- 
 ing the outlet. To discharge the contents of the car 
 through the lower discharge pipe the cap is unscrewed 
 and the pipe coupling attached. The valve, by means 
 of the rod is then lifted and the oil permitted to flow 
 through the outlet into the pipe and conducted to the 
 reservoir provided for its reception. The tank car ar- 
 rived at Fort Scott on the 17th day of November and 
 was received by the consignee on the next day. The gas 
 company caused the car to be removed from the yard of 
 the railroad company, where it was delivered and to be 
 placed on the switch track of another company located 
 in a street a half mile away between 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 pe- 
 troleum contained in the tank into the reservoir of the 
 gas company, located beyond the mill and upon the far- 
 ther side of an intercepting street. The railroad track 
 upon which the tank car stood was three feet distant 
 from the furnace room of the mill, the 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 18th and 
 before or at the time of the removal of the car on that 
 day, it was observed by the engineer of the switch en- 
 gine 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 November two servants of the 
 gas company undertook to discharge the oil into the res- 
 ervoir of the gas company, through a pipe laid from the 
 
372 Facts in the Goodlander Case. 
 
 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 position. The other went under the car with a 
 wrench to remove the cap and attach the pipe leading" to 
 the reservoir. He observed that the cap was loose and 
 removed it with his hand; and it is stated in the brief of 
 the counsel of the plaintiff in error without reference 
 to the record for verification of the statement that the 
 man observed as he went under the car for the purpose 
 of removing 1 the cap and attaching the coupling 1 , that the 
 oil was leaking 1 some, but he did not deem that fact of 
 moment, supposing that the valve was in proper posi- 
 tion, 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 prevent it and before the car could 
 be removed from its position, the oil flowed down the 
 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, whereby the mill 
 and its contents were destroyed and property of the 
 value of $107,000 consumed. After the fire and upon ex- 
 amination of the tank, it was discovered that it contained 
 no valve; that it was removed, but how, or when, it is 
 not disclosed by the evidence, but presumably before the 
 tank car was filled with oil for shipment. The evidence 
 established that crude petroleum will give off a vapor or 
 gas which will flash at a temperature of 90 degrees, ig- 
 niting by contact with fire, and explosive upon its igni- 
 tion; that is in common use for fuel purposes; that it is 
 as volatile as turpentine. The action against the Stand- 
 ard Oil Company by the mill owner is predicated upon 
 negligence in omitting to have a proper valve in the out- 
 let of the tank. At the trial of the cause and upon a 
 conclusion of the evidence for the plaintiff, the court di- 
 rected the jury to find a verdict for the defendant." The 
 above were the facts on which the court instructed the 
 jury to find the defendant not guilty. 
 
Duty of the Carrier to Furnish a Safe. 373 
 
 SEC. 3. DUTY TO FURNISH A SAFE VEHICLE CON- 
 TINUES ONLY WHILE THE OIL is IN THE COURSE OF 
 TRANSPORTATION PETROLEUM NOT A DANGEROUS 
 AGENCY CONTINUING NEGLIGENCE. In discussing- the 
 duties and liability of the company toward the public 
 the court said: "We are thus brought to the question 
 whether crude petroleum may properly be classified-as- 
 a 'dangerous agency within' the meaning- of the rule. 
 It is an extensive article of commerce, transported by 
 rail to all parts of the land, shipped by steamers and 
 sail vessels to all parts of the world. It is innocuous of 
 itself. It is dangerous only when in considerable quan- 
 tity it is broug-ht in contact with fire. It is in general use 
 for fuel and other purposes. It is no more volatile than 
 turpentine, no more explosive than gas; does not neces- 
 sarily, in handling, involve 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 with 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 pe- 
 troleum in all respects adapted to the purpose of carri- 
 age and able to encounter the usual risks of transporta- 
 tion reasonably to be anticipated. We think that to be 
 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 the shipment of explosives, the char- 
 acter of the shipment being concealed. Here the contents 
 of the tank was declared by the peculiar construction of 
 the car. The properties of the petroleum were known 
 to the consignee and to the public equally with the de- 
 fendant. They are matters of common knowledge. There 
 was here no disguise and no concealment." If the court 
 in the above quotation laid down a correct rule as to the 
 duty of the shipper to provide a safe vehicle so that the 
 oil would not be exposed to dangers of ignition while in 
 the hands of the carrier for transportation, the shipper 
 
374 Proximate Cause of Injury. 
 
 did not provide a safe vehicle because the statement of 
 facts by the court shows that the oil was escaping- from 
 the car while yet in -the hands of the carrier, and the 
 court, in the opinion, said that: "The company (the gas 
 company) was chargeable with the knowledge * * * 
 the oil was leaking from the discharge pipe and this 
 prior to the removal of the car from the yard of the car- 
 rier." The tank continued to leak after it passed into 
 the hands of the consignee and up to the time the cap 
 screw was removed, so the danger was a continuing one 
 and the negligence of the oil company a continuing neg- 
 ligence, and all that the gas company did was to make 
 the oil flow in a greater volume or increase the flow. 
 Again, what was to be gained by the public in knowing 
 the properties of petroleum when the public or the mill 
 company had no control over the tank car? 
 
 SEC. 4. THE ABSENCE OF THE VALVE NOT THE 
 PROXIMATE CAUSE OF THE DESTRUCTION OF THE MILL. 
 The shipper was held not bound to provide a valve so 
 that the contents of the car may be discharged by the 
 ordinary methods as far as third persons may be con- 
 cerned, because the petroleum was not in or of itself 
 "essentially dangerous." "The omission of the valve did 
 not render it dangerous. If not interfered with, the omis- 
 sion of the valve had no tendency whatever to produce 
 the injury complained of," said the court. But the oil 
 escaped from the car before the servants of the gas com- 
 pany undertook to remove the oil from the tank, and it 
 escaped while yet in the hands of the carrier, and the 
 statement of facts by the court contains the following: 
 "Within the tank the discharge pipe is fitted with a heavy 
 valve to prevent the escape of oil." The escape of the 
 oil had a tendency to imperil property generally in the 
 city of Ft. Scott and whatever threatened the property 
 generally was a menace to this particular property and 
 this took place before the car left the yards of the car- 
 rier and before the servants of the gas company inter- 
 fered with the car, so the car was dangerous to the pub- 
 lic and to the Goodlander Mill Co. as one of the public 
 
Absence of a Valve. 375 
 
 because the car leaked, and it leaked because of the ab- 
 sence of the valve which was provided "to prevent the 
 escape of oil." The oil itself is of such a character that 
 if not confined it will flow upon another's premises and 
 do damages. So the person who provides the means to 
 confine it ought to be held liable for damages because of 
 the insufficiency of such means. 1 
 
 The court said further: "The petroleum was subject 
 to ignition and its ignition at the time and place pro- 
 duced the injury. That was caused by subjecting it to 
 heat and fire." Was it the absence of the valve or the 
 removal of the cap screw which caused the injury? The 
 statement of facts says: "The tank car had a discharge 
 pipe in the bottom and about the center of the tank some 
 four inches in diameter and projecting about four inches 
 below the bottom. The projection was threaded to re- 
 ceive a heavy cap screw. To discharge the contents of 
 the car through the lower discharge pipe, the cap is un- 
 screwed and the pipe coupling attached. The valve by 
 means of a rod, is then lifted and the oil permitted to 
 flow through the outlet into the pipe and conducted 
 through the pipe to the reservoir provided for its recep- 
 tion." Then the discharge pipe was not placed on^the 
 bottom of the car for the purpose of confining the oil but 
 for the purpose of having a hose attached so that the oil 
 may be conveyed to a reservoir, and in the construction 
 of a tank it was not intended that the oil should be be- 
 low the valve in the discharge pipe, for after removing 
 the cap screw the valve had to be lifted to permit the oil 
 to flow through the opening. If the valve was there, no 
 oil would be below the valve and the oil would not escape 
 as it did, and it was the fault of the shipper that it was 
 not there and the oil escaped into the discharge pipe, at 
 least, because it was not there. Is it negligence for a 
 bailee of a chattel to use it as it was bailed to be used? 
 
 1. Swords vs. Edgor, 59 N. Y., 28; Sternberg vs. Wilcox, 96 
 Term., 113; Heaven vs. Fender, L. E. 11 Q. B. Div., 506; 
 Melchey vs. Methodist Religious Soc., 125 Mass., 487; 
 Caughrty vs. Globe Woodenware Co., 56 N. Y., 124. 
 
376 Duty of Bailors. 
 
 The gas company simply used the discharge pipe as it 
 was intended to be used when it was bailed to it and if 
 it should be used differently, the oil company gave it no 
 notice. The defect was not obvious to the gas company 
 and only slight leakage was observed by the servants of 
 the gas company, but the servants of the Standard Oil 
 Company knew that the valve was absent or it was their 
 duty to know and the court held the oil company to be 
 negligent in sending out a car in that condition. The 
 Standard Oil Company was a dealer in petroleum for 
 profit and as a means of increasing its profits and pro- 
 moting its business, it had provided itself with tank cars 
 so that the oil could be conveyed directly in its own cars 
 to the purchaser, and the defect was in the car when it 
 was turned over to the gas company and the defect was 
 obvious when the tank was empty, so the Standard Oil 
 Company knew of the defect and the bailee did not. If 
 a person leases his real estate or bails his personal 
 property, which is so out of order as to injure third per- 
 sons the lessor or bailor is liable. 1 And when a person 
 leases a premises for a particular purpose or bails per- 
 sonal property or buys it for a particular purpose and 
 the property is unfit for that purpose, the lessor or bailor 
 is liable to the lessee or bailee or third persons. 2 And if 
 such lessor or bailor is liable to the lessee or bailee the 
 lessee or bailee cannot be said to be guilty of contribu- 
 tory negligence, and if not guilty of such negligence in 
 reference to the lessor or bailor, how can the lessor or 
 bailor setup such negligence to defeat a recovery against 
 him by a third person. In all these cases the person who 
 was injured went upon the premises or chattel which was 
 defective and caused the injury, but the person whose 
 property was injured in this case was not an actor in 
 any way, but the oil which escaped invaded the premises 
 and then caused the damages. The oil company was the 
 active creator of the nuisance and the authorities are 
 strong enough to hold it liable. 
 
 1. Nugent vs. Boston C. & M. Ry., 80 Me., 62. 
 
 2. Godley vs. Hogerty, 20 Pa., 387; Carson vs. Godley, 26 Pa., 111. 
 
Defect in an Article Baled. 377 
 
 SEC. 5. THE BAILOR OF AN ARTICLE Is LIABLE FOR 
 INJURIES TO A THIRD PERSON WHEN THE ARTICLE Is 
 UNSUITABLE FOR THE PURPOSE FOR WHICH IT Is IN- 
 TENDED. The court sought to distinguish Haven vs. Pen- 
 der, L. R. , 11, Q. B. , 506, and like case from the case on hand, 
 and said : "There is a class of cases holding the building of 
 a scaffolding to be used by workmen and negligently con-~ 
 structed, rendering it unsafe, liable for an injury occur- 
 ring from its use. These cases recognize the rule that 
 the liability of the builder is generally to the person 
 with whom he contracted, but rest the liability to third 
 persons upon the ground that the defect was such that 
 it rendered the article in itself immediately dangerous, 
 and that serious injury was the natural and probable 
 consequence of its use. " 
 
 The case of Haven vs. Fender was one where a dock 
 owner provided a scaffolding to be used by a ship owner 
 in painting the ship, and the ship owner let the contract 
 to paint the ship, and the contractor hired a servant who 
 was injured in using the scaffolding, and the servant 
 brought an action against the dock owner. Now, the 
 scaffolding was not immediately dangerous to the ser- 
 vant or any other person, and only became dangerous 
 when the servant went upon it and was using it for the 
 purpose for which it was intended. So it was with the 
 tank car. It became dangerous when the appliances 
 were used for a purpose for which they were intended, 
 and caused the damages when so used. 
 
 The reasons given by the court for its decision that 
 when the dock owner furnished the ship owner the stag- 
 ing, the dock owner did so because it was to his interest 
 to do so, since the ship was received at the docks for 
 repair, and were provided with the staging, and the 
 work was to be done at the docks, so any person who 
 used the appliances provided by the dock owner did so 
 under an implied invitation, as all such appliances were 
 incident to the use of the docks, and the dock owner 
 owed a duty to such persons to provide safe appliances. 
 The dock owner received the ship in the harbor for the 
 
378 Injury to Third Person. 
 
 purpose of repair, and placed staging around the ship so 
 that it may be repaired, and received compensation for 
 allowing the work to be done, and the fact that the 
 owner did not retain control of the staging did not re- 
 lease him from liability in such a case because the stag- 
 ing was supplied to be used immediately in painting the 
 ship, and the liability is the same as if articles were fur- 
 nished to be used on the ship then in course of construc- 
 tion, and such articles proved defective, and the persons 
 so using them would not have the time or opportunity to 
 discover the defect. The same rule applies to the case 
 of the oil company because it furnished the tank car and 
 did so as bailor and for profit, and the defect was in the 
 car when delivered to the gas company, and the servants 
 of the gas company could not discover the defect by or- 
 dinary inspection, and the oil was to be removed imme- 
 diately, and the appliances proved defective when put 
 to the use for which they were intended, and an injury 
 resulted to a third person, one who had no opportunity to 
 discover or remedy the defects. 
 
 In Massachusetts, the owner of a building, when he 
 undertook to furnish a scaffolding, was held to be under 
 an obligation to furnish an absolute safe staging for a 
 building, and was liable for injuries to a servant of a 
 contractor to whom absolute possession was given of the 
 staging, but the defect existed before a delivery of the 
 staging which the owner furnished to the contractor. ' 
 
 The same rule was laid down in New York, where a 
 firm of contractors made an agreement with the owner of 
 a building to put a cornice on the building, and agreed 
 to put up a staging for the contractors free of cost, if any 
 was needed, and a staging was put up and one of the 
 servants of the contractors was injured by reason of a 
 defect in the staging. The owner of the building was 
 bound to furnish a safe staging, and his liability was the 
 same as if he had put up an insecure building which fell 
 and injured a person lawfully on the premises. 2 
 
 1. Melchey vs. Methodist Religious Soc., 125 Mass., 487. 
 
 2. Caughtry vs. Globe Wooden Co., 56 N. Y., 124. 
 
Liability of a Bailor to a Third Person. 379 
 
 The court seems to have lost sight of the fact that 
 the gas company was but a temporary bailee of the tank 
 car, and for that reason rights growing out of bailment 
 will be discussed further, to a limited extent, though it 
 may seem somewhat out of place. 
 
 SEC. 6. LIABILITY OP THE KEEPER OF HORSES AND 
 CARRIAGES FOR HIRE FOR INJURIES TO THE PERSON WHO 
 HIRES THEM AND THIRD PERSONS. Thus, where the 
 owner of a livery barn hires a horse to a husband and the 
 wife is injured because the horse had a vicious habit of 
 kicking and running away, the owner of the horse was 
 held liable. "It was the duty of the defendant to furnish 
 a horse that had no vicious habit, and if he knew of the 
 existence of the habit, or if by the exercise of reasonable 
 care he could ascertain that the horse was not suitable 
 for the use of hire, he ought to have known that the horse 
 was dangerous, he is liable for such injuries from his 
 wrongful conduct. ' 51 The wife in this case was a stranger 
 to the contract, yet the owner was liable, and the ground 
 of the decision is that it was not suitable for the purpose 
 for which it was kept and hired. 
 
 So where the owner of a coach hires it to a third per- 
 son and the third person's guest is injured in the use of 
 the coach and the injuries were caused by defects in the 
 coach when hired, 2 or if the person who bails a chattel 
 knows the use to which it is to be put and there are 
 secret defects which are liable to cause injury and no 
 information of such defects is given to the bailee, the 
 bailor is liable for injuries. 8 
 
 There are many well considered cases which lay 
 down the rule that the bailor of horses and carriages for 
 hire warrants that the horses and carriages are reasona- 
 bly fit and suitable for the purpose for which they are 
 hired. 
 
 Thus, where the horse had the habit of running away 
 and the hirer ought to have known of that fact, he is lia- 
 
 1. Lynch vs. Richardson, 163 Mass., 160; 39 N. E., 801. 
 
 2. Glenn vs. Winters, 17 Misc., 597. 
 
 3. Caughlin vs. Gillison, 1 Q. B., 149 (1899). 
 
380 Defective Vehicles. 
 
 ble to the wife 1 of the person who hired the horse as well 
 as to the hirer; 8 and is liable without regard to any con- 
 tract of bailment where the horse is vicious and the 
 owner had notice and the person injured has no notice. 8 
 
 So where the harness breaks and an occupant of the 
 vehicle is injured, the bailor is liable where the harness 
 was old and defective and consequently unsuitable for 
 the purpose for which the harness were used. 4 The bailor 
 of a carriage is liable where he lets a defective carriage 
 which causes injury if the defect could have been discov- 
 ered by reasonable care and skill. 5 So where a bolt 
 proves defective and gives way and results in an injury 
 to the occupant the bailor is liable; 9 and where a seat is 
 not properly secured and an injury is caused thereby to 
 the occupant, the bailor cannot escape liability for 
 such injuries. 7 
 
 The owner of a rig is liable, although the person who 
 procures the rig selects it from among the rigs kept for 
 hire, and thus had an opportunity to examnie the rig be- 
 fore it was used but failed to do so, for the law does not 
 impose on the bailee a duty to examine the rig. 8 The 
 doctrine as to the liability of the bailor as laid down by 
 Story in his work on bailments is that the bailor for hire 
 generally warrants the suitableness of the thing let. 9 
 
 There is no reason why the doctrine of these cases 
 should not apply to the bailor of an oil tank as well as 
 to the bailor of a horse, harness or carriage, and thus 
 charge the Standard Oil Company, as owner of the tank, 
 
 1. Lynch vs. Richardson, 163 Mass., 160; 39 N. E., 801. 
 
 2. Hume vs. Meakin, 115 Mass., 326. 
 
 3. Copeland vs. Draper, 157 Mass., 328; Comm. vs. Pierce, 138 
 
 Mass., 165; Dickson vs. McCoy, 39 N. Y., 400. 
 
 4. Hadley vs. Cross, 34 Vt., 586. 
 
 5. Jones vs. Page, 15 L. R. N. S., 619; Hyman vs. Nye, L. R., 16 
 
 Q. B. Div.,685. 
 
 6. Hyman vs. Nye, L. R. 16 Q. B. Div., 685. 
 
 7. Erickson vs. Barber, 83 la., 367; 49 N. W, 838. 
 
 8. Jones vs. Page, 15 L. R. N. S., 619. 
 
 9. Story on Bailments, Sects. 383, 390; Harrington vs. Snyder, 3 
 
 Barb., 380. 
 
Contributory Negligence. 381 
 
 with the duty to have it fit and suitable for the purpose 
 for which it was intended. 
 
 SEC. 7. WERE THE SERVANTS OP THE GAS COMPANY 
 GUILTY OF CONTRIBUTORY NEGLIGENCE IF THE INJURY 
 WAS TO THEM? When the shipper of an article under- 
 takes to furnish a vehicle by which an article is to be^ 
 transported and the vehicle is to be unloaded by the con- 
 signee, the duty of the shipper toward a servant of the 
 consignee is well stated by an eminent court in Elliott v. 
 Hall, L. R. 15 Q. B. 315, in the following language: 
 
 "This appears to me to be a much stronger case in 
 favor of the plaintiff than the case of Haven v. Fender. 
 The question is whether the defendant who had entire 
 dominion over the truck is liable to the plaintiff in re- 
 spect to its defective condition. It was clearly a part of 
 the contract for the sale of the coal to plaintiff's em- 
 ployees that it should be conveyed in a truck to the 
 buyer; and that it must necessarily have been contem- 
 plated that when it arrived at its destination, the truck 
 would have been unloaded by the buyer's servants. I 
 think that it is plain that under the circumstances a duty 
 arose on the part of the defendant toward the plaintiff. 
 If the vendor of goods forwards them to the purchaser 
 and for that purpose supplies a truck or other means of 
 conveyance for the carriage of the goods, and the goods 
 are necessary to be unloaded from the means of convey- 
 ance by the purchaser's servants, it seems to me per- 
 fectly clear that there is a duty on the part of the vendor 
 toward those persons who necessarily have to unload or 
 otherwise deal with the goods to see that the truck or 
 other means of conveyance is in good condition and re- 
 pair so as not to be dangerous to such persons." If any 
 one was guilty of negligence in removing the oil from 
 the tank in the Goodlander case, it was the servants of 
 the gas company and if an injury occurred to them, no 
 recovery could be had under the ruling of the court, but 
 if it was the duty of the oil company to furnish a safe 
 and suitable tank for them as was required in the case 
 of Elliott v. Hall, then did not the law require of it to as- 
 
382 When Notice Must be Given. 
 
 certain that the tank was in good condition so that the 
 property of another would not be injured and not relieve 
 the author of the defect from liability in case the ser- 
 vants fail to do so? The servants were not required to 
 examine the tank for their own safety for the law im- 
 posed no such duty upon them. * 
 
 SEC. 8. MEASURE OP DUTY WHEN NOTICE MUST 
 BE GIVEN. The care required of the owner of a chattel 
 bailed to a bailee is measured by the dangers to be ap- 
 prehended from the use of the chattel and when the thing 
 bailed is not dangerous when in an ordinary state of re- 
 pair it is the duty of the bailor to give notice of any de- 
 fects which might cause injury from its use. 2 It was the 
 duty of the oil company not to lead the gas company into 
 a trap without notice. 8 Then, again, the valve was put 
 in the tank for the purpose of keeping the oil in the tank 
 and it was once there and the servants of the gas com- 
 pany had a right to presume that it was still there, be- 
 cause when things have once existed in a particular state 
 they are presumed to continue so until the contrary is 
 known. 4 Hence the duty of the oil company to furnish a 
 safe and suitable vehicle intended for the purpose for 
 which it was to be used; its negligence in loading the 
 tank with oil without a valve; its failure to give notice 
 to the consignee of the absence of the valve; and the 
 leakage of the oil from the tank while yet in the hands 
 of the carrier ought to be sufficient at least to warrant 
 the submission of the case to a jury when the only notice 
 of any defect to the agents of the gas company was the 
 leak of the tank but the agents had a right to presume 
 that the valve which was designed to hold the oil in the 
 tank was there. This ought to be more especially true 
 where the party who was injured was in no way respon- 
 sible for the destruction of his property, and it was not 
 
 1. See section 6, supra. 
 
 2. King vs. National Oil Co., 81 Mo. App., 155. 
 
 3. Baker vs. Tibbitts, 102 Mass., 466; 39 N. E., 350. 
 
 4. Metzger vs. Schultz, 16 Ind. App., 454; 45 N. E., 619; Smith 
 
 vs. Railroad Co., 43 Barb., 225. 
 
Unloading Oil at a Place of Danger. 383 
 
 shown that it was within his power to prevent the in- 
 jury. The oil company owed a duty to the public and to 
 the owners of the mill as a member of the public not to 
 place it within the power of the gas company to do in- 
 jury to the public by the use of defective appliances fur- 
 nished to the gas company by the oil company. If a gas 
 company negligently permits gas to escape and after the" 
 gas has escaped a responsible third person applies a 
 match to the gas and the gas explodes and destroys the 
 building of another person, the gas company is liable; yet 
 the gas would do no harm but for the acts of such person. 
 The liability of the oil company ought to be measured 
 by the same standard. * 
 
 SEC. 9. NEGLIGENCE IN BRINGING THE CAR IN CLOSE 
 PROXIMITY TO THE MILL WHERE AN ENGINE AND BOILER 
 AND HOT ASHES WERE IN THE BASEMENT OF THE MILL. 
 The court also deemed it an act of negligence on the part 
 of the servants of the gas company to place the car 
 within three feet of the boiler and engine, and within eight 
 feet of hot ashes, which was below the grade of the track 
 and near an open window. In discussing this feature of 
 the case the court said: "With the 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, undertook 
 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 proba- 
 
 1. Pine Bluff Water & Light Co. vs. McClain, 62 Ark., 118; 34 S. 
 W., 549; see Moon vs. Northern Pac. Ry. Co., 46 Minn, 106; 
 48 N. W, 679; Pennsylvania Ry. Co. vs. Snyder, 55 Ohio, 
 342; 45 N. E., 559; Hansen vs. St. Paul Gas Light Co., 82 
 Minn.,84;84N.W.,727. 
 
384 Concurrent Negligence. 
 
 bly resulting from the omission of the valve, it would, 
 as we conceive, appear unlikely and abnormal that this 
 injury should result. We are of the opinion that the in- 
 tervening and independent act of the gas company was 
 the 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. " The supreme court of Illinois, in Pullman Pal- 
 ace Car Company vs. Laack, 143 111., 242; 18 L.R.A., 215, in 
 response to a proposition that "the negligence of the 
 fellow-servant intervening as an efficient cause of the 
 injury, the negligence of the master, if any, is attribu- 
 table, became the remote and not the proximate cause," 
 said: "The fallacy of the proposition lies in the assump- 
 tion of the fact that the negligence of the fellow-servant, 
 was in and of itself a new and efficient cause of injury. 
 Whether the negligence of the defendant was the proxi- 
 mate cause of the injury was a question of fact, also, to 
 be determined by the jury under proper instructions from 
 the court," and the cases which hold it to be a question 
 of law are "in the teeth of almost numberless decisions 
 and as unsupported by reason, " and that "if at the time 
 of the negligence the wrongdoer might, by the exercise 
 of ordinary care, have foreseen that some injury might 
 result from his negligence," he is liable. In such a case 
 it is not necessary that the wrongdoer could have fore- 
 seen that a particular injury might result from the act, 
 but it is sufficient if some injury might result. 
 
 "If the wrong of the appellant put in motion the 
 destructive agency, and the result is directly attributable 
 thereto, and there was no intervention of a new force or 
 power of itself sufficient to stand as the cause of the 
 mischief, the negligence of the appellant must be consid- 
 ered the proximate cause of the injury, if it could have 
 been foreseen by the exercise of ordinary care that in- 
 jury might or would result from the negligence. The 
 negligence of the fellow-servant, whether it be treated 
 as creating a condition merely or as a cause, was not an 
 intervening efficient cause, as to break the casual con- 
 
Negligence of a Fellow Servant. 385 
 
 nection between the negligence of the appellant and the 
 injury. The destructive agency set in motion by the 
 negligence of the appellant increased in extent by the 
 flow of burning oil, igniting whatever was in its way that 
 was combustible. This followed as a natural and inevi- 
 table sequence, and, coming in contact with the oil on 
 appellant's clothing, ignition followed as a natural ~re-- 
 suit. " 
 
 "It therefore required the combined negligence of the 
 appellant and the fellow servant to produce the conse- 
 quences resulting in the appellee's injury. It is well 
 settled that where the injury is the result of the negli- 
 gence of the defendant and that of a third person, or of 
 the defendant and an inevitable accident, or an inani- 
 mate thing has contributed with the negligence of the 
 defendant to cause the injury, the plaintiff may recover, 
 if the negligence of the defendant was the efficient cause 
 of the injury. In such a case the negligence of two inde- 
 pendent persons resulting in injury to the third, where 
 neither is sufficient within itself, both are treated in com- 
 bination as the proximate cause of the injury." 
 
 The negligence in the Laack case was a failure to have 
 a valve in a supply pipe which fed crude petroleum to a 
 brick kiln so that the oil could be shut off in case of an 
 accident and there was a valve in a pipe previously used 
 and a new pipe was put in which had no valve and the 
 servant had no notice of the change. The negligence of 
 the fellow servant was his failure to adjust the valve in 
 the tank to shut off the flow of oil, and the servant in- 
 jured went under the tank and unscrewed the feed pipe 
 and the oil flowed over him and caught fire because the 
 valve in the tank was not adjusted. It became necessary 
 to do this on account of the absence of the valve in the 
 feed pipe. So when a gas company permits gas to escape 
 and the gas finds its way to a greenhouse and destroys 
 part of the flowers, the gas company is liable for value 
 of the flowers that were not destroyed when they could 
 not be sold, because it was necessary to have the flowers 
 that were destroyed to blend with them to suit the peo- 
 
386 Manufacture of Dangerous Articles. 
 
 pie's taste. The negligence of the gas company and not 
 the people's taste was the proximate cause of the loss. 1 
 
 SEC. 10. INJURIES TO THIRD PERSONS ON ACCOUNT 
 OF THE ORIGINAL, DEFECTS IN THE ARTICLE. In the 
 Goodlander Mitt Co. v. Standard Oil Co. the rights of the 
 mill company were considered by the court in the same 
 light as if title had passed to the gas company. There 
 are many well considered cases which lay down the rule 
 that where there is a defect in the article sold and that 
 the manufacturer or the vendor, as the case might be, 
 knew of such defect or could have known by the exercise 
 of reasonable care, the manufacturer or vendor is re- 
 sponsible to third persons for damages, caused by such 
 defect. Thus, when refiners and vendors of oil place the 
 same on the market and the oil is below the test required 
 by law, and the oil is sold to a retail dealer, and the 
 retail dealer sells the same to third persons, and the oil 
 exploded when used in a lamp for illuminating purposes 
 and caused the death of a person, the refiners and ven- 
 dors were held responsible for damages. 8 So, where a 
 vendor of naphtha sold the same to a grocer as kerosene, 
 and the grocer sold the same to a person who bought it 
 to be used in a lamp, and the original vendor knew that 
 the vendee intended to sell the oil to his customers, the 
 vendor was held responsible for the damages resulting 
 from the use of the naphtha. 3 
 
 So, in a case where the manufacturer of ladders con- 
 structed one of defective material and the material used 
 was obviously defective, and the ladder was put among 
 his general stock and was sold to a retail dealer, and the 
 retail dealer sold the ladder to a customer who received 
 injuries by reason of the original defects, the manufac- 
 turer was held liable for the injuries received by the 
 purchaser from the retail dealer. The defect was not 
 obvious to the purchaser because the t ladder was oiled 
 and varnished and the defects were covered up. No con- 
 
 1. Hansen vs. St. Paul Gas Light Co., 82 Minn. 84; 84 N.W., 727. 
 
 2. Elkins vs. McKean, 79 Pa., 493. 
 
 3. Wellington vs. Dawner Kerosene Co., 104 Mass., 64. 
 
Liability of a Shipper. 387 
 
 tract relations existed between the purchaser and the 
 manufacturers of the ladder, nor did the latter know that 
 the purchaser received the defective ladder because it 
 could not have been distinguished from the others in 
 stock, but "the question of the defendant's liability reaches 
 back to the time of manufacturing and putting into its 
 stock of goods for sale an article then known to be dan- 
 gerously defective," and, though there was no wrong at 
 the time the ladder was delivered, because the defects 
 could not then be seen and the wrong, if any, was at the 
 time it was put in the general stock, but it would not 
 change their real relations as cause and effect, nor so 
 qualify that relation that the law would regard the 
 injury as being so remote from the wrong that for that 
 reason responsibility should cease. When the defendant 
 manufactured and put the dangerously faulty article in 
 his stock for sale, it is to be deemed to have anticipated 
 that, in the ordinary course of events, it would come into 
 the hands of a purchaser, either directly from the de- 
 fendant or from some intermediate dealer, for actual use, 
 and with the consequences which actually were suf- 
 fered. 1 These cases illustrate the principle of the rule 
 that a wrongdoer is responsible for the probable conse- 
 quences of his acts and is liable although no contract 
 relations exist. 
 
 SEC. 11. LIABILITY OF THE SHIPPER TO THE SER- 
 VANT OF THE CARRIER. The shipper of naphtha is lia- 
 ble for an injury to a servant of a railroad company 
 who was injured by a stream of naphtha which came in 
 contact with the flame of the lamp while the servant, 
 with others, in the night time, was in the act of remov- 
 ing the naphtha, which was confined in a barrel, from 
 among some other barrels in the car, which were also 
 filled with naphtha, because the barrel was leaking. 
 The liability of the shipper rested upon the facts that 
 naphtha was an extremely dangerous explosive, and that 
 it was the duty of the shipper to so brand the barrels 
 that the servants of the railroad company would know 
 
 1. Schubert vs. Clark & Co., 49 Minn., 331; 15 L. R. A., 818. 
 
388 Injuries to Passengers. 
 
 or be put on their guard with respect to the dangers 
 connected with it. In this case the only warning the 
 servant had was that the heads of the barrels which con- 
 tained the naphtha, and which were painted white, had 
 written across the head the words: "Unsafe for illumin- 
 ating purposes." This inscription was held to be insuffi- 
 cient where the freight bill of the car, which contained 
 thirty barrels of ordinary illuminating oil and thirty-five 
 barrels of naphtha, showed that the contents of the bar- 
 rels was carbon oil. The brand on the barrels and the 
 freight bill were not sufficient to apprise the servant of 
 the dangers connected with the article. 1 Where the 
 shipper sets up contributory negligence on the part of 
 the servant in going into the car with a lighted lamp it 
 is competent for the person injured to show by persons 
 familiar with illuminating oil that there was no danger 
 in going into a car with a lighted lamp if the oil was 
 ordinary illuminating oil, which the person injured be- 
 lieved it to be. 8 The defendant may show that wooden 
 barrels are safe and that naphtha was ordinarily shipped 
 in that way by prudent business men. 8 The shipper was 
 not relieved from liability because the officers of the rail- 
 road company and the shipper agreed that the naphtha 
 may be shipped in that way. 4 
 
 SEC. 12. INJURIES TO PASSENGERS FROM AN EX- 
 PLOSION OF NAPHTHA AND OIL CAUSED BY A WRECK OF 
 A FREIGHT TRAIN. The facts on which an action was 
 brought by a passenger were as follows: A freight train 
 on the road became separated, and the part which be- 
 came detached from the engine and other cars consisted 
 of two tank cars of naphtha, one of kerosene oil, a car 
 of coke and a caboose, and was wrecked and set on fire 
 
 1. Standard OilCo. vs. Tierney, 92 Ky., 367; 17 S. W., 1025; 14 
 
 L. E. A., 677. 
 
 2. Standard Oil Co. vs. Tierney, 95 Ky., 633; 96 Ky., 89 27; S. 
 
 W., 983. 
 
 3. Standard Oil Co. vs. Tierney, 92 Ky., 367; 17 S. W., 1025; 14 
 
 L. R. A., 677. 
 
 4. Standard Oil Co. vs. Tierney, 92 Ky., 367; 17 S.;W. 1025. 
 
Injury to Passenger. 389 
 
 and was in a dangerous condition. The person who was 
 injured was a regular passenger on the railroad, and 
 when the train came near the place of the wreck he was 
 informed of the wreck and that the train on which he 
 was aboard could not proceed beyond the wreck, but 
 that in a short time another train would come to a place_ 
 beyond the wreck and that he and the other passengers 
 would be transferred to the other train so they may pro- 
 ceed on their journey. The passengers were requested 
 to retain their places in the cars until the other train 
 arrived, but the passengers would not remain in the cars 
 and were then transferred to a place of safety beyond 
 the wreck. A gap was opened in the fences along the right 
 of way so that the passengers would be a safe distance 
 from the burning oil and naphtha, and were transferred 
 in safety to a distance beyond the wreck which was free 
 from danger. The person injured passed by the burning 
 naphtha and oil, which were burning fiercely and made 
 a loud noise, but after the passenger entered the gap 
 upon the right of way after passing beyond the burning 
 oil and naphtha he went back along the railroad track 
 toward the wreck, about two-thirds the distance from, 
 the gap, and stood there about one-half hour before the 
 naphtha and oil exploded. The passenger was injured 
 and contended that the railroad company was negligent 
 in not warning him. The evidence of the railroad com- 
 pany tended to show that the agents of the company in- 
 dicated a place where the passengers should remain until 
 the other train arrived and that the place was safe if he 
 had remained there, but that he left the place of safety 
 of his own accord. The court held: 
 
 First That the oil and naphtha were still burning 
 fiercely and made a loud roaring noise and that the flames 
 from the wreck shot high in the air, hence the passen- 
 ger should have taken notice of the danger as they "gave 
 clear and emphatic warning to the humblest intelligence 
 of the impending danger from the burning tank of oil." 
 
 Second The plaintiff was in an open country and 
 without any restraint, and it was his duty to avoid the 
 
390 Ordinary Care Only Required. 
 
 dangers which were so apparent, and the defendant had 
 a right to assume that the passenger would occupy the 
 place to which he was conducted and that he would not 
 expose himself to such obvious danger. 
 
 Third The special findings of the jury that, the offi- 
 cers of the railroad company "in the exercise of ordinary 
 prudence should have known of the plaintiff's position 
 in time to warn him of the dangers which threatened on 
 account of the burning tank," and "in the exercise of 
 reasonable care they ought to have anticipated that the 
 plaintiff would go nearer to the burning tank and incur 
 unnecessary danger," were contradictory with the finding 
 that he would not have been injured if he remained in 
 the place designated, and that from "motives of curiosity 
 and pleasure" he went from the place indicated "much 
 nearer the burning tank," and a verdict in favor of the 
 plaintiff should be set aside. 
 
 Fourth The plaintiff could not recover if his acts 
 contributed to the injury complained of, and that it was 
 not negligence on the part of the railroad company not 
 to restrain him from approaching the burning tank. 
 
 Fifth- -The relation of carrier and passenger still 
 existed, although actual transit for the time was inter- 
 rupted, as he had a right to complete his trip on the de- 
 fendant's cars, and the taking up of the dangerous posi- 
 tion near the burning tank of oil may bar him from a 
 right to recover damages for his injuries, but that does 
 not affect his rights as a passenger. 
 
 Sixth The defendant did nothing to invite him to 
 the place of danger so he had to exercise ordinary care 
 for his own safety. 
 
 Seventh An instruction is erroneous which tells the 
 jury "that it was the duty of the carrier to exercise ex- 
 traordinary vigilance, aided by the highest skill, and to 
 exercise the highest degree of care to prevent the inter- 
 position of any obstacle to expose the plaintiff to danger 
 while waiting for the train to arrive," as the defendant 
 was required to exercise only ordinary care and pru- 
 dence. 
 
Injury to a Third Person on the Right of Way. 391 
 
 Eighth The question of negligence on the part of 
 the plaintiff, as well as the defendant, was for the jury 
 to determine under proper instructions from the court, 
 so the court granted a new trial. 1 
 
 SEC. 13. INJURIES TO PERSONS WHO CAME UPON 
 THE RIGHT OF WAY OF A RAILROAD COMPANY AND ARE 
 INJURED BY AN EXPLOSION OF PETROLEUM. A collision 
 took place between a locomotive engine and a train of 
 cars which were running over the defendant's railroad 
 and a train of cars standing on the sidetrack of the rail- 
 road. The train on the sidetrack was laden with tank 
 cars containing petroleum or gasoline. The plaintiff set 
 up that the oil was inflammable and explosive when ex- 
 posed to the heat and fire, and that the cause of the col- 
 lision was the negligence of the servants of the defend- 
 ants in leaving open a switch which lead from the main 
 track to the sidetrack, or the negligence of the servants 
 in running the train which ran into the sidetrack. The 
 collision caused some of the oil tanks to burst, and the 
 escaping oil was set on fire by sparks or fire from the 
 defendant's locomotive engine. The oil ran along the 
 cars and was communicated to oil tanks which had not 
 been burst open by the collision or exposed to the fire 
 when it first started. Some two hours had taken place 
 after the explosion before the person was injured, and 
 the defendant could have put the fire out if proper efforts 
 were made or could have removed the tank cars to a 
 place of safety. The plaintiff claimed also that proper 
 warning was not given of the danger, and that at^the 
 time of the accident he was in the exercise of proper 
 care for his own safety, and that he was at the time of 
 the injury assisting to put out the fire at the request of 
 one of the servants of the railroad company. 
 
 It appeared that at the time of the accident the plain- 
 tiff was two miles away from the scene and that he and 
 his cousin came to the place, and that at the time of 
 their arrival the fire was burning fiercely and that the 
 
 1. Conroy vs. Chicago, M. & 0. Ry., 96 Wis., 243; TON. W., 
 468; 38 L. R. A., 419. 
 
392 Injury to a Licensee. 
 
 oil on fire made a loud noise like steam escaping from 
 an engine, and that he did not come upon the premises 
 at the request of the defendant but of his own free will. 
 
 The court held that petroleum was not in itself a 
 dangerous agency but became so when exposed to heat 
 and fire. That the plaintiff was not a trespasser but was 
 engaged in a laudable work in assisting to prevent the 
 spread of fire, and that if he exercised due care and cau- 
 tion the defendant was liable for negligence in leaving 
 the switch open and in not stopping the fire or removing 
 the cars so that fire could not be communicated to them, 
 and in not giving proper and sufficient warning to the 
 person injured. 1 
 
 Another person who was injured in the same accident 
 and who went with plaintiff, Henry, to the place and was 
 injured whilst assisting in preventing the spread of the 
 fire, brought an action against the company and recov- 
 ered, and the company took the case to the court of ap- 
 peals and that court reversed the judgment below and 
 remanded the case. In passing upon the case the court 
 held that, ' 'negligence, to be actionable, must occur in 
 breach of legal duty arising out of contract or otherwise, 
 or owing to the person sustaining the loss," and defined 
 "legal duty" to be, "that which the law required or for- 
 borne to a determinate person, or to the public at large, 
 and as correlative to a right vested in such person or 
 public at large." The person injured was at least no 
 more than a mere licensee and his rights were no greater 
 than a fireman who may enter a person's premises to ex- 
 tinguish a fire. In such a case the licensee must take 
 the premises as he finds them. The negligent act of leav- 
 ing a switch open was the breach of no duty toward the 
 person injured when such a person was several miles 
 away at the time of the accident and voluntarily came 
 to the scene, so the company was not liable for the con- 
 dition of the premises or the mishap of leaving the switch 
 open. 2 The fact that he was assisting the servants to 
 
 1. Henry vs. Cleveland, C.C. & St.L. Ry., 67(C.C.),Fed. R., 426. 
 
 2. Cleveland, C. C. & St. L. Ry. vs. Bellentine, 84 Fed. R., 835; 
 
 see Gibson vs. Leonard, 143 111., 182. 
 
Defective Gar Furnished a Shipper. 393 
 
 prevent the spread of the fire, and may have the rights 
 of a servant of the company, did not make the company 
 liable, because the dangers were obvious and he should 
 have used care and caution for his own safety. * 
 
 SEC. 14. INJURIES CAUSED BY DEFECTS IN THE 
 CARS WHILE IN THE CONTROL OF THE SHIPPER TO BS 
 LOADED. In an action brought against a railroad com- 
 pany, which was the owner of a certain tank car used for 
 the shipment of oil, for damages for the destruction of a 
 house, the company was held liable where the defects 
 were in the car at the time it was delivered. The facts 
 on which the action was determined were as follows: 
 The railroad company left two oil tank cars to be filled 
 by a servant of the oil company with oil belonging to the 
 oil company, and the cars were connected together when 
 left by the railroad company. The cars were filled at 
 the top by oil from a tank by means of a pipe from the 
 tank to the car. When one of the cars was filled it was 
 found necessary by the servant of the oil company, who 
 was inexperienced in the handling of cars, to move the car 
 which was filled forward so the other might be placed 
 under the pipe from the tank. Both cars could not be 
 moved, so the servant uncoupled the cars and then moved 
 the car which was filled and then mounted the car to set 
 the brake, but was unable to do so because the brake 
 was in a defective condition. The direction the car was 
 going was a steep down grade and the servant jumped 
 from the car, and about a mile or so from where the car 
 was started the car collided with an engine which had 
 been standing on the track some time opposite the plain- 
 tiff's house, and the fire in the engine ignited the oil in 
 the tank car and burned the plaintiff's house, which was 
 some twenty feet from the railroad track. The servant 
 had no notice of the defective condition of the brake, 
 and the cars were placed in his charge for the purpose 
 of being filled with oil. The court held that the probable 
 necessity of the movement of this car must have been 
 
 1. Cleveland, C. C. & St. L. Ry. vs. Bellentine, 84 Fed. R., 835. 
 
394 Storing Oil Contrary to a Statute. 
 
 known to the defendant and the railroad company fur- 
 nished no assistance, although the person was without 
 experience and the brake was defective, were sufficient 
 to charge the company with negligence. The servant 
 was not required to move both cars together, and could 
 uncouple them and the company could not say that these 
 acts were unauthorized, because he had full charge of 
 the cars for the purpose of filling them. The fact that 
 the servant was in the employ of the oil company would 
 not defeat a recovery, because the servant of the oil com- 
 pany while filling the cars would be regarded as a ser- 
 vant of the railroad company, as far as third persons 
 were concerned, 1 
 
 SEC. 15. INJURIES WHEN PETROLEUM is STORED 
 AT A RAILROAD STATION IN VIOLATION OF A STATUTE. 
 An action was brought against a railroad company for 
 damages which were the result of a fire started at the 
 station of a railroad company. Thirty barrels of oil were 
 stored on the platform of the company, some of the bar- 
 rels were empty, some partially filled, and others were 
 entirely full of kerosene oil. The platform was old, about 
 four feet from the ground, and the platform and rubbish 
 and ground beneath were saturated with oil. The fire 
 was started by a man engaged in the draying business, 
 and who stubbed his toe and knocked some tobacco out 
 of his pipe and he relighted the pipe with a match and 
 then threw the lighted match down, and it was assumed 
 that the fire started from the match. The oil had been 
 on the platform longer than forty-eight hours, although 
 there was a statute which provided that oil composed 
 wholly or in part of the products of petroleum shall not 
 be allowed to remain on the grounds of a railroad com- 
 pany in a town for a longer time than forty-eight hours, 
 without a special permit from the select men. No per- 
 mit was given to keep the oil longer than forty- eight 
 hours in the town. The court assumed that the company 
 was at fault in keeping the oil there for a longer time 
 
 1. Oil Creek & Allegheny River Railroad Co. vs. Keighorn, 74 
 Pa. St., 316. 
 
Proximate Cause of an Injury. 395 
 
 than forty-eight hours and that the accident would not 
 be so disastrous if it was not so kept. 
 
 The teamster who started the fire was not connected 
 with the railroad company in any way, but came upon 
 the grounds with a load of goods, and he had a right to 
 do so under the law, so the railroad company was not 
 responsible for any act of his. The first question de~ 
 termined by the court was: "Whether the act of Casserly 
 (the teamster) in starting the fire was such a consequence 
 of the defendant's original wrong in allowing the oil to 
 remain upon the platform, that the defendant is respon- 
 sible to the plaintiff for it." The court would not look 
 back beyond the last sufficient cause in fixing the re- 
 sponsibility for the damages, and the acts of the teamster 
 in starting the fire was held to be the proximate cause 
 of the injury, because the defendant could not anticipate 
 that a responsible person would throw a lighted match 
 in the place he did and start the fire. The court held 
 that there was no question of fact in the case to be sub- 
 mitted to a jury. The negligence of the defendant was 
 held not to be concurrent with the negligence of the 
 teamster, as the negligence of the company preceded 
 that of the teamster and was an existing fact when his 
 negligence intervened. 
 
 The illegal acts on the part of the defendant were 
 not enough to hold it responsible for the remote conse- 
 quences of the acts. * But to keep an article for a longer 
 time at a place contrary to an ordinance or a statute has 
 been held to be a public nuisance, and as the courts have 
 said: "If an illegal act is done, the party doing or caus- 
 ing the act to be done is responsible for all consequences 
 resulting from the acts." Under this rule the railroad 
 company would be held liable for the damages caused 
 by the oil.* 
 
 1. Stone vs. Boston & H. Ry., 171 Mass., 536; 41 L. B. A., 794; 
 
 51 N.E., 1. 
 
 2. Laflin & B. Powder Co. vs. Tearney, 131 111., 322; 7 L. B. A., 
 
 262; Wright vs. Chicago & N. W By. Co., 27 111. App., 200. 
 
Nuisance Created by Oil and Gas. 
 
 CHAPTER XXL 
 
 SECTION 1. DAMAGES TO OTHER LANDS RESULTING 
 FROM THE DEVELOPMENT OP THE LAND ITSELF AND DAM- 
 AGES RESULTING FROM THE BUSINESS CONDUCTED ON 
 THE LAND. An owner of land has a right to develop 
 the land by operating 1 for coal, oil, gas or iron; and if in 
 the progress of his development of the land an injury 
 occurs to the land of another owner and the injury is not 
 the result of negligence, no action can be maintained for 
 such injuries. Thus where an owner of a coal mine pumps 
 water from the mine and the water was contaminated 
 by substances in the mine and the water was permitted 
 to flow away in its natural course to the sea, any injury 
 which the contaminated water might do would not make 
 the owner of the mine liable because the land of the 
 owner was coal lands and it was necessary to free the 
 mine from water to develop it, hence the injury resulted 
 from the natural development of the land and no action 
 would lie. = But a person is not engaged in the natural 
 development of his land when he conducts petroleum 
 through pipes and the petroleum escapes and penetrates 
 the soil and finds its way to the well of a neighbor and 
 pollutes the water therein and the oil which thus escaped 
 was brought from distant lands. 2 So an operator of coke 
 ovens is liable for damages done to the crops of an ad- 
 joining owner destroyed by gases from coke ovens if the 
 coal which was used was brought from other lands be- 
 cause the burning of the coke is not a development of 
 the lands. 8 
 
 1. Pennsylvania Coal Co. vs. Sanderson, 113 Pa., 126; 6 Atl., 453. 
 
 2. Hauck vs. Tide Water Pipe Line Co. , 153 Pa. , 26 ; 366 Atl. , 644 ; 
 
 20 L. R. A., 642. 
 
 3. Robb vs.Carnegie Bros., 145 Pa.,324;22Atl.,649;14L.R.A.,329. 
 
Nuisance. 397 
 
 SEC. 2. WHEN DAMAGES RESULT FROM THE USE OF 
 LAND IN A CERTAIN WAY THE QUESTION is ONE OP 
 NUISANCE. A person who stores oil in pipes, tanks 
 and reservoirs is guilty of maintaining- a nuisance if the 
 oil escapes and does injury to the lands of an adjoin- 
 ing owner without any regard as to whether he was 
 guilty of negligence or not. 1 Some things are nuisance's 
 per se while others may become so only in fact. A nui- 
 sance per se is that which is a nuisance in itself and 
 which therefore cannot be conducted or maintained as to 
 be lawfully carried on or permitted to exist. A business 
 lawful in itself cannot be a nuisance per se although such 
 a business may become a nuisance in fact. 2 Thus an oil 
 well from which oil was taken at the time became a nui- 
 sance in fact when the well was located a short distance 
 from the residence of a person and his family and the 
 gas escaped from the well and permeated the air about 
 the residence and the fire used at the house had to be put 
 out at times because of the danger from an explosion of 
 gas and a tank of oil from the well stored within 80 
 feet of the residence. 3 When the oil or gases from the 
 oven escape and invade the premises of another the 
 owner is liable even though he used due care when the 
 use made of the land was not a natural development of 
 the land. 4 
 
 SEC. 3. DAMAGES RESULTING FROM THE ESCAPE OF 
 OIL BECAUSE OF THE POLLUTION OF THE ATMOSPHERE. 
 Slight evidence is sufficient to make out a case for sub- 
 mission of the question of damages to a jury. Thus evi- 
 dence that an oil company spilled some oil on its own 
 premises and a residence was located on an adjoining lot 
 and when the wind blew from the direction of the premises 
 
 1. Hauck vs. Tide Water Pipe Line Co., 153 Pa., 366; 26 Atl., 
 
 644; 20 L. R. A., 642. 
 
 2. Windfall Mfct. Co. vs. Patterson, 148 Ind., 414; 47 N. E., 2; 
 
 37 L. R. A., 381; McGregor vs. Camden, 47 W. Va., 193; 
 34 S. E.,936. 
 
 3. McGregor vs. Camden, 47 W. Va., 193; 34 S. E., 936. 
 
 4. Hauck vs, Tide Water Pipe Line Co., 153 Pa., 366; 26 Atl., 644; 
 
 20 L. R. A., 642. 
 
398 Pollution of Streams and Wells. 
 
 of the oil company toward the residence the occupant 
 and his family suffered some in consequence is sufficient 
 to go to the jury. * The fact that an oil refining company 
 is carrying" on a lawful business is no defense to a suit 
 by an owner of a house in which the owner and his family 
 reside where the owner charged the refining- company 
 with maintaining a nuisance by permitting 1 the waste 
 oil to escape into the ground which found its way into 
 ditches and sewer and some of the oil saturated the 
 ground near his residence and that the stench and 
 smells were so strong 1 and offensive that he and his fam- 
 ily were made sick and that he was deprived of the full 
 use and enjoyment of his residence. The question of 
 nuisance or no nuisance must be submitted to a jury where 
 the party charged of maintaining a nuisance denies the 
 commission of the acts. 2 If the value of the premises was 
 decreased because oil was permitted to escape from the 
 premises of another and the owner of the premises suf- 
 fered from the noxious gases and physical discomforts 
 the owner of the oil must compensate him not only for 
 the damages to the land but also for any discomforts 
 brought about by the escape of the oil; 3 and must com- 
 pensate a person for damages to his business 4 but where 
 the loss is to one's business there must be evidence to 
 show of what the loss consisted. 5 An owner of oil is 
 also liable for the pollution of a spring of water which 
 had been used for domestic purposes even though the 
 veins which supply the spring 1 are hidden and unknown. 
 If the owner of the oil owned the premises through which 
 the water which supplied the well flowed he could ap- 
 propriate all the water to his own use but such an owner 
 has no right to poison or contaminate the water which 
 he does not use and which finds its way to the spring of 
 
 1. Fishburn vs. Standard Oil Co., 66 MinD., 277; 68 N. W., 1090. 
 
 2. Gavigan vs. Atlantic Ref. Co., 186 Pa., 604; 40 Atl., 834. 
 
 3. Berger vs. Minneapolis Gas Light Co., 60 Minn., 296; 62 N. 
 
 W.,336. 
 
 4. Brady vs. Detroit Steel Spring Co., 102 Mich., 277; 60 N. W., 
 
 687; 26 L. R. A., 175. 
 
 5. Matthews vs. Mahonay, 143 Pa., 276; 22 Atl., 759. 
 
Injunction to Prevent a Nuisance. 399 
 
 a neighbor. The owner of the oil is liable in such a case 
 although he did not know that it injured the well of his 
 neighbor. 1 But it was held in Dillon v. Acme Oil Co., 49 
 Hun, 565, that an oil refining company was not liable for 
 the oil which escaped from tanks into the ground and 
 the oil found its way to the wells of an adjoining land 
 owner and rendered them unfit for domestic use because 
 the oil company was using its land for legitimate pur- 
 poses or the oil company could appropriate the streams 
 which flowed through its land and thus destroy the wells 
 on the adjoining land in that way and no recovery could 
 be had. 
 
 SEC. 4. INJUNCTION TO PREVENT THE CONSTRUC- 
 TION AND OPERATION OF OIL AND GAS WELLS. A com- 
 plaint to prevent the sinking of a gas well which alleges 
 that a certain party had commenced boring a gas well 
 and the gas well was within 150 feet of the residence of 
 the complainant, and that the well when completed would 
 make a roaring and continuous loud noise, and such noise 
 would annoy the complainant, and that gas was explos- 
 ive and dangerous, and that the pipe for the conveyance 
 of gas would leak and the gas thus escaping would make 
 the atmosphere disagreeable and dangerous because of 
 explosions, and the gas was to be conveyed at rock pres- 
 sure, and the gas attacted the electric fluid called light- 
 ning, and that the construction of the gas well would 
 endanger his property as well as the lives of the com- 
 plainant and his family, and further that the well might 
 produce oil, gas or water, and the person drilling it could 
 not control it, was held to be insufficient. No danger 
 was to be apprehended from the construction of the well 
 and if any danger was to be apprehended it was from the 
 gas, oil or water which might come from the well, there- 
 fore the danger was not so imminent as to warrant a re- 
 straining order from the construction of a gas well. In 
 any event a gas, oil or water well is not a nuisance per se 
 or the pipes for the conveyance of oil, gas or water, nor 
 
 1. Kennard vs. Standard Oil Co., 89 Ky., 468; 12 S. W., 937; 7 
 L. R. A., 451. 
 
400 Nuisance Created by Gas Works. 
 
 are a gas well and the pipes for the conveyance of gas 
 and a brick and tile factory in which the gas is used a 
 nuisance per se, but on the contrary the business is law- 
 ful, and if located in the proper place and conducted and 
 maintained in a proper manner, neither the plant or the 
 well can be treated as a nuisance. Courts will not inter- 
 fere with an individual to produce on his land what he 
 pleases unless injuries to another person are inevitable 
 and are undoubted and certain to occur. Possible in j uries 
 are not sufficient grounds. 1 An oil well located about 70 
 feet from a residence and a tank of oil about 80 feet are 
 not a nuisance per se, but if gas is permitted to escape 
 and fill the atmosphere about the residence so the domes- 
 tic fires must be put out at times to prevent explosions, 
 the well will become a nuisance in fact and such a mode 
 of operating the well will be enjoined. 2 
 
 SEC. 5. NUISANCE ARISING FROM THE OPERATION 
 OF GAS WORKS. Smells, smoke and soot caused by the 
 manufacture of gas come properly under the denomina- 
 tion of a private nuisance where such smells, smoke and 
 soot permeate the atmosphere which floats over the 
 premises of another. 3 So where a person maintains on 
 his premises a brick kiln, and in the manufacture of the 
 brick certain gases are produced, and the gases there 
 produced killed the grain growing in a near by field, the 
 gases thus produced amount to a private nuisance, and 
 the person who is responsible for their production may 
 be held liable for the grain destroyed. 4 A person engaged 
 in the manufacture of coke from coal which was brought 
 from a distance will be held liable for damages caused 
 by the gas passing over the lands of an adjoining owner, 
 thus rendering his place uncomfortable as a home and 
 
 1. Windfall Mfct. Co. vs. Patterson, 148 Ind., 414; 47 N. E., 2; 
 
 36 L. R. A., 381. 
 
 2. McGregor vs. Camden, 47 W. Va., 193; 34 S. E., 936. 
 
 1. Ottawa Gas Light & Coke Co. vs. Thompson, 39 111., 598. 
 
 2. Fogarty vs. Junction City Pressed Brick Co., 50 Kan., 478; 31 
 
 Pac., 1152; 18 L. R. A., 756; Campbell vs. Seaman, 63 N. 
 Y.,568; 20 Am. Rep., 567. 
 
Action Against Chartered Gas Companies. 401 
 
 rendering- the farm less productive. * It amounts to a pri- 
 vate nuisance where a gas company permits offensive 
 substances and materials and oils to percolate through 
 the soil and find their way to the well of an adjoining 
 land owner and render the water unfit for domestic pur- 
 poses. 2 And the owner of the gas works will be liable 
 for damages sustained by the owner of the well, 8 and a 
 person who has a verbal license to take water from the 
 well can maintain an action for a disturbance of his ease- 
 ment, but not for the distruction of the well. 4 A gas com- 
 pany is also liable where a tank for the storage of naph- 
 tha is erected near the residence of a person and the 
 naphtha contained in the tank gives off offensive odors 
 and makes the place uncomfortable as a home. 6 A gas 
 company which maintains a nuisance need not be guilty 
 of negligence in order to maintain an action against it, 
 but will be liable for damages if it maintains a nuisance 
 without regard to care or negligence on its part. Nor 
 will the charter it receives from the state release it from 
 liability to a third person. The charter will only protect 
 the gas company from being proceeded against by the 
 public. 6 
 
 1. Robb vs. Carnegie, 145 Pa., 324; 22 Atl., 649; 14 L. E. A., 644; 
 
 2. Ottawa Gas Light Co. vs. Thompson, 39 111., 598; Pattstown 
 
 Gas Co. vs. Murphy, 39 Pa., 257. 
 
 3. Pattstown Gas Co. vs. Murphy, 39 Pa., 257. 
 
 4. Ottawa Gas Light Co. vs. Thompson, 39 111., 598. 
 
 5. Bohan vs. Port Jarvis Gas Co., 122 N. Y., 18; 25 N. E., 246; 
 
 9L. R. A..711 and note. 
 
 6. Pattstown Gas Co. vs. Murphy, 39 Pa., 257; Bohan vs. Port 
 
 Jarvis Gas Co., 122 N. Y., 18; 25 N. E., 246 9; L. R. A., 
 711; Rosenheimer vs. Standard Gas Light Co., 36 App. 
 Div. 1; People vs. New York Gas Light Co., 64 Barb., 55; 
 Pattstown Gas Co. vs. Murphy, 39 Pa., 257. 
 
Use of Oil and Gas Affecting Insurance. 
 
 CHAPTER XXII. 
 
 SECTION 1. LIABILITY OF ACCIDENT INSURANCE FOR 
 DEATH CAUSED BY INHALING GAS NEW YORK CASES. 
 An accident insurance company was held liable for death 
 caused by the involuntary inhalation of gas while asleep 
 under the following provision of a policy, to- wit: "The 
 person insured is indemnified 'against loss of time, not 
 exceeding twenty-six consecutive weeks, from the hap- 
 pening of such accident and injury as shall independently 
 of all other causes, immediately and wholly disable and 
 prevent him from the prosecution of any and every kind 
 of business by reason of bodily injuries, through external, 
 violent and accidental means; or, in the event of death, 
 occasioned by bodily injuries received as aforesaid when 
 resulting within ninety days from the happening thereof 
 and in such event will pay only the sum of $3,000, provided 
 always that the insurance shall not extend to any bodily 
 injury of which there shall be no external and visible 
 sign upon the body of the insured, nor to death or dis- 
 ability which may have been caused * * * by 
 hernia, bodily infirmities * * * nor by the taking of 
 poison, contact with poisonous substances, or of inhal- 
 ing of gas or by any surgical operations, or medical 
 treatment, nor to any case except where the injury" is 
 the proximate and sole cause of the disability or death. J 
 
 The death occurred in the decedent's sleeping apart- 
 ments and the decedent was found in his bed like a man 
 asleep without any outward signs or indications that he 
 was dead, and without any external or visible signs of 
 injury to his body. The accident occurred at a hotel and 
 
 1. Paul vs. Travelers Insurance Co., 112 N. Y., 472; 20 N. E., 347; 
 3 L. R. A., 443; Catlin vs. Springfield Fire Ins. Co., 1 Sum- 
 mer, 440. 
 
Accident Insurance. 403 
 
 the cause of the accident was that the gas became turned 
 on after the decedent went to sleep, and the room, which 
 was tightly closed, became filled with the illuminating 
 gas and the death was caused by breathing the atmos- 
 phere of the room full of illuminating gas. The insur- 
 ance company refused to pay the policy on the ground 
 that death resulting from inhaling illuminating gas was 
 excepted under the provision of the policy, and thus re- 
 lieved the company from liability. 
 
 The court held that the policy must be construed 
 liberally in favor of the person insured and strictly 
 against the insurer. 
 
 That the person insured came to his death by acci- 
 dental means and was within the terms of the policy. And 
 the provision in the policy which excepted the company 
 from liability unless visible signs on the body of the in- 
 sured appeared, applied and referred only to that part of 
 the policy which provided for the payment of loss when 
 death did not occur. When the insured was injured from 
 breathing gas involuntarily, the company was not released 
 from the payment of the loss, and the company would be 
 relieved only when the insured voluntarily inhaled the 
 gas. The insured was held not to inhale the gas, for to 
 inhale gas requires an act of volition on the person'.s part 
 before the danger is incurred, and "to hold that death of 
 the plaintiff's intestate was caused by the inhaling of 
 gas, within the meaning of the policy, would be to con- 
 strue its terms contrary to the usual import of language." 
 ' 'Gas in the atmosphere as an external cause, was a vio- 
 lent agency, in the sense that it worked upon the intes- 
 tate so as to cause his death. " It was said by the lower 
 court: "Was the death of the intestate caused by or 
 through external violent or accidental means within the 
 language of the policy. * * * We should say the 
 death was due to external and violent means as clearly as 
 drowning 1 . The cause of death came from outside a s surely 
 as would a rifle ball or water in the case of drowning." 
 
 The escape of gas into a room was violent in the 
 same sense that would be the flow of water into a wrecked 
 
404 When Not Exempt. 
 
 vessel. In each case the external means constitute the 
 cause which produces death. It is a violent death, pro- 
 duced by external power, not natural. 1 So a policy 
 which provided as follows: "This policy does not in- 
 sure against death or disablement from accidents, that 
 bear no external and visible marks * * * nor against 
 death or disablement arising from anything accidentally 
 taken, administered or inhaled, contact of poisonous sub- 
 stance, inhaling gas, or any surgical operation or ex- 
 haustion consequent thereof," does not relieve the acci- 
 dent insurance company for death caused by breathing 
 the air permeated with gas by a person while asleep. 
 The admitted facts were practically as they were in the 
 Paul case, and that the death of the decedent was caused 
 purely by accidental means so the provision in the pol- 
 icy applied only to cases when gas was voluntarily taken. 
 The court said: "That provision of the policy clearly 
 implies voluntary action on the part of the insured or 
 some other person. The insured must take and inhale 
 and another must administer. The manifest purpose of 
 the provision is to exempt the insurer from liability 
 where the insured has voluntarily and conscientiously 
 but accidentally, taken or inhaled or something has been 
 voluntarily administered which was injurious or destruct- 
 ive to life. That is made more apparent by that portion 
 of the provision which relates to something 'adminis- 
 tered,' as it cannot be reasonably construed as referring 
 to a thing involuntarily and conscientiously adminis- 
 tered. " 
 
 The fact that the decedent met death by breathing 
 illuminating gas, and that when artificial respiration 
 was produced, illuminating gas emanated therefrom to 
 the perception of the person producing the artificial res- 
 piration, and that in the room where the decedent lay 
 dead gas was perceived to be escaping, and that on in- 
 spection of the body life was extinct, were sufficient evi- 
 dence of an external and visible character, so that the 
 company was not exempt under the provision of the 
 
 1. Paul vs. Travelers Ins. Co., 45 Hun., 313. 
 
Inhalation of Gas. 405 
 
 policy that the company did not insure against death or 
 disablement from accidents that shall bear no external 
 and visible works. ' The doctrine in the Paul case has been 
 approved in other cases in the same state. 8 
 
 SEC. 2. LIABILITY OF ACCIDENT INSURANCE COM- 
 PANY FOR INJURY CAUSED BY INHALING GAS PENNSYL,^ 
 VANIA DOCTRINE. Where an accident insurance company 
 issued a policy for the sum of $5,000 and the policy pro- 
 vided that the company would pay to the legal repre- 
 sentatives the said sum after due notice and satisfactory 
 proof that the insured has during the continuance of the 
 policy, sustained such violent and accidental injuries as 
 shall externally be visible upon his person, and which 
 alone shall have caused his death; and on the back of 
 the policy and which was a part of it there were the fol- 
 lowing provisions: "The insured agrees to use due dili- 
 gence for personal safety and protection." "This insur- 
 ance shall not cover * * * injury resulting from or 
 attributable partially or wholly to any of the following 
 causes: * * * "taking of poison, contact with poison- 
 ous substance, inhalation of gas," * * * the insurance 
 company was liable under the terms of the policy for the 
 accidental death of the insured resulting from the inhala- 
 tion of gas. It appeared in that case that the insured 
 went into a well about twelve feet deep to repair a pump 
 which had been leaking and shortly after he went into 
 the well his lifeless body was found in the well. The sur- 
 face of his body presented a livid, bluish color, and there 
 were many other indications on his body that he met 
 death by suffocation. There was no dispute but that 
 there was gas in the well and that it caused the deced- 
 ent's death for others who removed the body from the 
 well almost met his fate. On these undisputed facts the 
 court directed a verdict for the plaintiff. The insurance 
 company insisted that it was not liable for death caused 
 
 1. Mennerlley vs. Employers Liability Assn. Corp., 148 N. Y., 
 
 596; 43 N.E., 54; 31 L.E.A., 686. 
 
 2. Bacon vs. United States Mut. Ace. Assn., 123 N.Y., 304; 25 
 
 N.E.,399;9L.R.A., 617. 
 
406 Accidental Death. 
 
 by inhalation of gas, but the court held that his death 
 was accidental and "was caused by external, violent and 
 accidntal means and without any conscious or voluntary 
 act on his part," and was "as much so as if he had 
 been suddenly and unexpectedly engulfed in water and 
 drowned. The deadly but invisible gas by which he was 
 unconsciously and accidentally enveloped was undoubt- 
 edly the external and violent cause of his injury and 
 death," and the effect of the gas was apparent on his 
 vital organs and body. "The deceased was accidentally, 
 violently and fatally asphyxiated by the unknown pres- 
 ence of a fluid foreign to his person. If that fluid had 
 been oil, smoke, water or molten metal the result would 
 have been substantially the same. Death, caused not so 
 much by the inhalation of the fluid as by its action in 
 excluding life supporting air, would have inevitably re- 
 sulted. A fair construction of the policy leads to the 
 conclusion reached by the court below, that death result- 
 ing from causes such as killed the intestate is not within 
 any of the exceptions relied on by the company." 1 The 
 doctrine of the Paul case was approved and followed. * 
 
 SEC. 3. LIABILITY OF ACCIDENT INSURANCE COM- 
 PANIES CAUSED BY THE INHALATION OF GAS ILLINOIS 
 DOCTRINE ALSO VIRGINIA. An accident insurance com- 
 pany was held liable on a policy of insurance which pro- 
 vided: "This insurance does not cover * * * injuries, 
 fatal or otherwise, resulting from poison, or anything 
 accidentally or otherwise taken, administered, absorbed 
 or inhaled," where the person insured met death in his 
 sleeping apartments in a hotel and death was caused by 
 breathing illuminating gas into his lungs and the gas 
 escaped by reason of defective fixtures. By such a clause 
 the company was exempt from liability, only in case 
 where the person comes to his death by the voluntary 
 inhalation of the gas. The cases in New York and Penn- 
 sylvania were referred to and approved and that the ad- 
 
 1. Pickett vs. Pacific Mutual Life Ins. Co., 144 Pa. St., 79-91; 22 
 
 Atl. 871. 
 
 2. Paul vs. Travelers Ins. Co., 112 N. Y., 472. 
 
Doctrine of the Federal Courts. 407 
 
 ditional word "absorbed" in the policy in question had 
 no application because since the word had reference to 
 something taken in through the pores of the body. The 
 words ''inhaling" or "inhalation" or "inhaled" as used 
 in the exceptions contained in these policies of life and 
 accident insurance implies a voluntary and an intelligent 
 act. "Read in the light of the decision the words now~ 
 in question do not mean otherwise," said the court, "than 
 if they explicitly read: poison or anything accidentally 
 or otherwise conscientiously and by an act of volition 
 drawn into the system by respiration." 1 
 
 So in Virginia, where the policy contained similar 
 provisions and the insured met death by the inhalation 
 of gas, the policy was construed strictly against the in- 
 surer and in favor of the insured; and when the policy 
 required that visible marks should be on the body to 
 make the company liable it was a question of fact for 
 the jury to say whether blood on different parts of the 
 body and red spots appearing on the surface of the body 
 and froth from the mouth mixed with blood were sufficient 
 visible marks as required by the policy. 2 
 
 SEC. 4. LIABILITY OP ACCIDENT INSURANCE COM- 
 PANIES FOR DEATH CAUSED BY INHALING GAS DOC- 
 TRINE OF THE FEDERAL COURTS. An accident insurance 
 company is not exempt from the payment of a loss caused 
 by inhaling illuminating gas under a provision of a pol- 
 icy: "This insurance does not cover * * * injuries 
 fatal or otherwise resulting from poison or anything ac- 
 dentally, or otherwise taken, administered or inhaled." 
 The liability of the company was not placed on the 
 ground that the company was strictly liable under the 
 terms of the policy but that the courts of New York in 
 the Paul case and the Mennerley case and the courts of Illi- 
 nois in the Waterman case and Pennsylvania in the Pickett 
 case placed a construction on policies which were the 
 
 1. Fidelity & Casualty Co. vs. Waterman, 161 111., 632; 32 L.R. A.. 
 
 654. 
 
 2. United States Mut. Ace. Assn. vs. Newman, 84 Va.,52; 3 S.E., 
 
 805. 
 
408 Loss Caused by Oil and Gasoline. 
 
 same or almost alike and found against the insurance 
 companies on similar facts and that the findings of these 
 courts at least placed a doubt as to the true construction 
 of these provisions, and when the true construction or 
 meaning of the provision of the policy is in doubt it must 
 be resolved in favor of the person insured." The above 
 case was passed upon by the U.S. Court of Appeals which 
 affirmed a decision of the lower court. l 
 
 Other Federal Courts have placed a different con- 
 struction on this exemption. Thus: 
 
 Where a policy of insurance contained a provision 
 like that in the Paul case and the insured met death by 
 inhaling gas while asleep in his room and the inhalation 
 was purely accidental, the insurance company was held 
 not liable, under the provisions of the policy. * In speak- 
 ing of the cases arising in the courts of New York, Penn- 
 sylvania and Illinois heretofore cited the Supreme Court 
 of Wisconsin said: "Numerous cases may be found to 
 the effect that the clause excepting death caused by in- 
 haling gas, accidentally or otherwise, only covers cases 
 of voluntary conscious inhalation. * * * The rule 
 itself is by no means free from criticism, nor has it passed 
 without criticism from respectable courts." The Court 
 then referred to the last case above cited. a 
 
 SEC. 5. KEEPING PETROLEUM AND ITS PRODUCTS 
 ON PREMISES CONTRARY TO THE TERMS OF THE POLICY. 
 An insurance company is not liable for a loss to prop- 
 erty caused by the use of gasoline on the premises in- 
 sured where the policy forbids the use of gasoline on the 
 premises. 4 So when a tenant keeps naphtha on the prem- 
 ises and damages result from the keeping of the naphtha, 
 the landlord cannot recover on a policy of insurance held 
 
 1. Fidelity & C. Co. vs. Lowenstein, 97 Fed. R., 17; Lowenstein 
 
 vs. Fidelity C. Co., 88 Fed. R., 474. 
 
 2. Richardson vs. Travelers Insurance Co., 46 Fed. R., 843. 
 
 3. Kosten vs. Interstate Casualty Co., 99 Wis., 73; 74 N. W., 534; 
 
 40 L. R. A., 651. 
 
 4. German Fire Insurance Co. vs. Shawnee Co., 54 Kan., 732; 39 
 
 Pac.,697. 
 
Prohibition Against Keeping on the Premises. 409 
 
 by him on the premises. * And where a policy prohibits the 
 keeping* of gasoline on the premises and the gasoline was 
 put temporarily in a store to be used in apartments above 
 the store, the keeping of the gasoline in the store will avoid 
 the policy. 2 An insurance policy which provided that if 
 the risk is made more hazardous the policy will become 
 void is avoided by the insured putting up a frame build- 
 ing near the one insured and in the building an incubator 
 was placed and the incubator was kept heated by the use 
 of gasoline or kerosene as a fuel. 8 An insurance policy 
 is not void where the printed portion of the policy pro- 
 hibits the use of benzine and gasoline but attached to the 
 policy is a slip permitting the premises to be used and 
 occupied for the purpose of hazardous and extra hazard- 
 ous purposes. 4 An insurance policy is avoided which per- 
 mits the use of kerosene for lights but stipulates that 
 the lamps must be filled during the light of day where 
 a lessee draws kerosene from the place where kept for 
 the purpose of loaning it to a third person and an ex- 
 plosion took place and the property was destroyed. 5 
 A policy was void if petroleum or its products were kept 
 on the premises, but provided: "Privileged to use kero- 
 sene oil for lights, lamps to be filled and trimmed by day- 
 light only", the words "for lights" restricted the use 
 of kerosene oil for the purpose of lighting the prem- 
 ises and the words "by day light" were construed to pro- 
 hibit the use of artificial lights at the time the oil was 
 drawn. 6 So where it is written on the margin of the pol- 
 icy that the insured may keep not exceeding five barrels 
 of oil on the insured premises, such permit does not ab- 
 rogate a printed portion of the policy regulating the 
 
 1. Badger vs. Platts, 68 N. H., 222; 44 Atl., 296; 5 and 6 infra. 
 
 2. Boyer vs. Grand Rapids Fire Ins. Co., 124 Mich., 455; 83 N.W., 
 
 124. 
 
 3. Yentzervs. Farmers Mut. Ins. Co., Pa., ; 49 Atl., 767. 
 
 4. Russell vs. Manufacturers & B. Fire Ins. Co., 50 Minn., 409; 
 
 52 N. W.,906. 
 
 5. Gunther vs. Liverpool & L. & G. Ins. Co., 34 Fed. R., 501. 
 
 6. Gunther vs. Liverpool & L. & G. Ins. Co., 134 U. S., 110; 116 
 
 U. S., 130. 
 
410 What Acts Will Not Avoid a Policy. 
 
 mode of handling" the oil. * So where the policy provided 
 that the policy would become void if naphtha was used 
 on the premises, the policy becomes void upon the use 
 of naphtha. 2 So where an insurance company made no 
 inquiries as to whether gasoline was used on the prem- 
 ises at the time the policy was issued an explosion of a 
 gasoline stove will avoid the policy, although it was used 
 at the time the policy was issued when the policy pro- 
 hibits its use. 3 An insurance policy becomes void where 
 the insured keeps a barrel of crude petroleum within five 
 or six feet from a furnace and the barrel is connected 
 with a pipe which runs to the furnace and the crude pe- 
 troleum is used as a fuel to heat a boiler and the policy 
 provides that the policy will be void if petroleum is kept 
 on the premises even if the petroleum did not cause the 
 loss." 4 So where there is a provision in a policy of in- 
 surance prohibiting the bringing or depositing of gaso- 
 line on the premises, the policy becomes void where the 
 gasoline is used in the house where the goods are kept, 
 although the tank where the gasoline is kept was in the 
 barn. 5 
 
 SEC. 6. WHAT ACTS WILL, NOT AVOID A POLICY. 
 The keeping of gasoline some distance from the insured 
 building or an occasional use of it to kill bugs will not 
 avoid the policy. 6 So where naphtha was used in a woolen 
 mill and its use was necessary in the business and had 
 been at the time the policy was issued, a continued use 
 of naphtha will not avoid the policy, although a written 
 portion of the policy so provided that it would avoid the 
 policy where the fire was not occasioned by the use of 
 naphtha. 7 So where a person operated a laundry and used 
 
 1. Gunther vs. Liverpool & L. & G. Ins. Co., 134 U. S., 110. 
 
 2. Wheeler vs. Travelers Ins. Co., 62 N. H., 326-450. 
 
 3. McFarlandvs. Fire & Marine Ins.Co., 46 Minn., 519; 49 N.W., 
 
 253. 
 
 4. White vs. Western Assurance Co., Pa., ; 6 Atl., 113. 
 
 5. Penn. Ins. Co. vs. Faires, 13 Civ. App., Ill; 35 S. W., 55. 
 
 6. LaForce vs. Williams City Fire Ins. Co., 43 Mo. App., 518. 
 
 7. Wheeler vs. Travelers Ins. Co., N. H., ; 1 Atl., 293; 
 
 Davis vs. Pioneer Furniture Co., 102 Wis., 394; 78 N.W., 596. 
 
Insuring the Prohibited Article. 411 
 
 gasoline in the operation, the insured may recover on a 
 policy, although the policy prohibited its use when the 
 custom of using gasoline was general at the place the pol- 
 icy was issued and the proof of such custom is not barred 
 because the policy contains a provision any custom of 
 trade or manufacture notwithstanding, since the running^ 
 or operation of a laundry is not a trade or manufacture. * 
 So where the use of gasoline was prohibited with the 
 added clause: "Any usage or custom of trade or manu- 
 facture to the contrary notwithstanding," the provision 
 does not apply where gasoline was used for domestic 
 purposes and the insurance covered the gasoline stove. 2 
 So where the written description as it appeared in 
 the policy was as follows: "A stock of merchandise, 
 consisting of drugs, stationery, liquors, tobaccos, toys 
 and fancy articles, paints, oils, chemicals and such other 
 goods, not more hazardous than such as is usually kept 
 for sale in a drug store;" and the printed portion of the 
 policy provided that the policy would be void if benzine 
 was kept on the premises, the insurance policy was held 
 to cover small quantities of benzine kept in stock, and 
 was covered by the general written description, hence 
 the keeping of benzine did not make the policy void. 3 
 Where a furniture store and shop was insured under the 
 description: "Four hundred dollars on the stock of fur- 
 niture, upholstery goods, and other merchandise not 
 more hazardous, usual to a retail furniture store," the 
 policy was not made void by the continued use of benzine 
 in the shop where benzine was generally used in such 
 stores or shops, although a printed portion of the policy 
 prohibited its use with the added phrase: "Any usage or 
 custom of trade or manufacture to the contrary notwith- 
 standing." 4 An insurance company will be held to have 
 
 1. Northern Ass. Co. vs. Crawford, (Tex. Civ. App.) 59 S. W., 
 
 916. 
 
 2. American Ins. Co. vs. Green, 16 Tex. Civ. App., 531; 41 S.W., 
 
 74. 
 
 3. Phoenix Ins. Co. vs. Flemming, 65 Ark., 54; 44 S. W., 464; 
 
 39 L. R. A., 789. 
 
 4. Faust vs. American Fire Ins. Co., 91 Wis., 158; 30 L. R. A., 783. 
 
412 Loss Not Caused by the Prohibited Article. 
 
 waived the printed portion of the policy by inserting 1 a 
 contrary written clause in the policy. ' To carry gasoline 
 through a store to be delivered to customers at once is 
 not keeping 1 or using" gasoline on the premises, 2 nor is it 
 kept on the insured premises where it is kept in a sepa- 
 rate building but on the same lot. 3 
 
 SEC. 7. WHEN THE Loss is NOT CAUSED BY THE 
 PROHIBITED ARTICLE. Although an insurance policy pro- 
 vided that the insurer shall not be liable if the use of kero- 
 sene is permitted on the premises the insurer will be 
 liable for a loss when the loss was not occasioned by the 
 use of kerosene. 4 So where an insurance policy provided 
 that "if the building described shall be appropriated to 
 any other purpose than herein specified * * * or the risk 
 increased * * * by any means within the knowledge 
 or control of the insured, or if petroleum or any of its 
 products are under any circumstances in the building, 
 * * * this policy shall become absolutely void," and 
 the buildings' when insured consisted of a dwelling house 
 and barn and were afterwards converted into a canning 
 factory by the insured, and a tank of gasoline was buried 
 in the ground some distance from the buildings and gas 
 was generated in the tank and passed through pipes to 
 to the building, and at the time the property was insured 
 no flame or jet of any kind was used in the barn, but the 
 canning factory ceased operation at the time the buildings 
 were destroyed, the use of gasoline was held not to avoid 
 the policy and the policy became effective again when 
 the insured discontinued the more hazardous use, although 
 the policy provided that it would become absolutely void 
 
 1. Phoenix Ins. Co. vs. Flemming, 65 Ark., 54; 39 L.R. A., 789; 
 
 Faust vs. American Fire Ins. Co., 91 Wis., 158. 
 
 2. Landon & Lloyd F. Ins. Co. vs. Fischer, 92 Fed R., 500. 
 
 3. Firemans Fund Ins. Co. vs. Shearman, 20 Tex. Civ. A., 343; 
 
 50 S. W., 598; Landon, etc. vs. Fischer, 92 Fed. R., 500. 
 LaForce vs. Williams Ins. Co., 43 Mo. App., 518; Ran vs ; 
 Winchester Fire Ins. Co., 36 App. Div. (N. Y.), 179. 
 
 4. Jones vs. Howard Ins. Co., 117 N. Y., 103; 22 N. E., 578. 
 
Temporary Breach. 413 
 
 by such a use. 1 In such a case expert testimony is ad- 
 missible to show whether the risk has become more haz- 
 ardous by a change in the use of the premises. 2 The 
 company will not be relieved from the payment of a loss 
 for a temporary breach where the policy does not become 
 forfeited by its own terms or by the acts of the company 
 during- such breach and there was no breach of the policy 
 at the time of the fire. 8 The insurer will not be released 
 by the temporary use of benzine when used to renovate 
 the furniture and carpets, although the risk may be in- 
 creased thereby contrary to the terms of the policy. 4 
 
 So where insurance policies provided that in case 
 the premises shall become unoccupied the insurance shall 
 cease and be void and of no force and effect, and the in- 
 sured left the premises unoccupied and the buildings 
 while so unoccupied were destroyed by fire, and the insur- 
 ance companies paid the losses to the mortgagee as the 
 policies provided, and the companies then took an as- 
 signment of the notes and mortgage and filed a bill in 
 equity to foreclose the mortgage, and thereupon the in- 
 sured brought action at law against the insurance com- 
 panies to recover the loss covered by the insurance and 
 the insurance companies had the insured enjoined from 
 prosecuting such action by a supplemental bill, and the 
 evidence in the proceedings to foreclose the mortgage 
 failed to show that the property would not be destroyed 
 if the premises were occupied, the court held that as the 
 
 1. Traders Ins. Co. vs. Catlin, 163 Ills., 256; 45 N. E., 256; 
 
 35 L. E. A., 595; New England Fire & M. Ins. Co. vs, 
 Wetmore, 32 111., 221; Germania Fire Ins. Co. vs. Klewer. 
 129 111., 599. 
 
 2. Traders Ins. Co. vs. Catlin, 163 111., 256; Cornish vs. Farm 
 
 Building Fire Ins. Co., 74 N. Y., 295; Planters Mut, Ins. 
 Co. vs. Rowland, 66 Md., 236; Luce vs. Dorchester Mut. F. 
 Ins. Co., 105 Mass., 297; Merriam vs. Middlesex Ins. Co., 1 
 Peter., 170. 
 
 3. Phoenix Assur. Co. vs. Munger, Tex., Civ. App. ; 49 
 
 S. W., 271; Ausable Lumber Co. vs. Detroit Ins. Co., 
 89 Mich., 407; Hickley vs. Germania F. Ins. Co., 140 
 Mass., 38. 
 
 4. Bently vs. Lumberman's Ins. Co., 191 Pa., 276; 43 Atl., 209. 
 
414 Explosion. 
 
 proceeding's were in a court of equity the rights of the 
 parties must be determined on the principles applied in 
 a court of equity, and that one of these principles is, a 
 court of equity will never enforce either a penalty or a 
 forfeiture, and to entitle the companies to enforce a mort- 
 g'ag'e and notes the companies must show that the prop- 
 erty was destroyed because unoccupied, and as the com- 
 panies did not show by the evidence that the property 
 way destroyed for that reason, they were not entitled to 
 enforce the mortgage and notes. l 
 
 SEC. 8. EXEMPTION IN INSURANCE POLICIES FROM 
 EXPLOSIONS. An insurance company is not liable for an 
 explosion of g"as which had escaped in the basement of a 
 store and which was ignited by bringing a lighted match 
 in contact with the g*as and the explosion caused the 
 floor of the building to give way, and the g~oods in the 
 store fell into the cellar and were soiled and otherwise 
 damag'ed, where the insurance policy provided: "This 
 company shall not be liable by virtue of this policy * * 
 for any loss caused by explosion of gunpowder, nor any 
 explosive substance, nor by lightning or explosion of any 
 kind, unless fire ensues, and then for the loss or damage 
 by fire only." The only fire complained of was the lighted 
 match which was unintentionally ignited, but this was 
 not a fire as contemplated by the fire insurance policy. 2 
 So an exception in a policy "for any loss or damage oc- 
 casioned by or resulting 1 from any explosion whatever" 
 will relieve an insurance company for damages resulting 1 
 from an explosive vapor coming in contact with a burn- 
 ing gas jet. The burning 1 gas jet "was not such a fire as 
 was contemplated by the parties as the peril insured 
 ag'ainst. The gas jet, though burning 1 was not a destruc- 
 tive force, against the immediate effects of which the 
 policy was intended as a protection. Although it was 
 a possible means of putting 1 such a destructive force in 
 
 1. Traders Ins. Co. vs. Race, 142 111., 338. 
 
 2. Heuer vs. Northwestern Nat. Ins. Co., 144 111., 393; 33 N. E., 
 
 411; 19 L. R. A., 594; Heuer vs. Winchester Fire Ins. Co., 
 44111., A., 429. 
 
Proximate Cause. 415 
 
 motion, it was no more the peril insured against than a 
 friction match in the pocket of an incendiary." 1 An in- 
 surance company is not liable for any kind of an explo- 
 sion under a provision against "any loss or damages by 
 fire which may happen" and "occasioned by explosions 
 of any kind, by means of invasions," etc., and the pro- 
 vision is not limited to invasions. 2 So where a policy 
 exempted a company under a provision "for loss caused 
 by explosions of any kind unless fire ensues and then for 
 loss or damage by fire only" an explosion of vapors which 
 came in contact with a burning lamp was within the ex- 
 ception, and that the burning lamp was not a fire within 
 the policy, hence there was no fire prior to the explosion. 8 
 So where an insurance policy exempts a company for 
 explosions except for "gas," the exception applies only 
 to illuminating gas and all other explosive gases are 
 within the exemption for damages. 4 So where an insur- 
 ance company provided against liability for damages 
 against explosions in the following language: "This in- 
 surance does not apply to or cover * * * any loss 
 caused by explosion unless fire ensues, and the loss or 
 damage by fire only," and upon the policy was pasted a 
 written slip providing that the insurance covered loss 
 caused by lightning to the amount the property was in- 
 sured. The damages to the insured were caused by an 
 explosion of gunpowder stored on an adjoining lot, and 
 the immediate cause of the explosion was the result of 
 the building being struck by lightning. The loss was 
 occasioned by the explosion and the insurer was not 
 liable. 5 
 
 SEC. 9. WHEN is AN EXPLOSION THE PROXIMATE 
 CAUSE OF AN INJURY TO PROPERTY WHERE THE POLICY 
 EXEMPTS THE COMPANY PROM LIABILITY CAUSED BY 
 
 1. United States F. & M. Ins. Co. vs. Foote, 22 Ohio St., 340; 10 
 
 Am. Rep., 735. 
 
 2. Smiley vs. Citizens Fire & Marine Ins. Co., 14 W. Va., 33. 
 
 3. Briggs vs. Citizens Ins. Co., 53 N. Y., 446. 
 
 4. Stanley vs. Western Ins. Co., 3 Exch., 71. 
 
 5. German Ins. Co. vs. Roost, 55 Ohio St., 581; 45 N. E., 109; 36 
 
 L. R. A., 236. 
 
416 When Company is Not Liable. 
 
 EXPLOSIONS. In giving- construction to exemption from 
 liability for damages the question often arises as to 
 whether the loss is attributable to the fire or to the ex- 
 plosion, or whether the fire is an incident to the explo- 
 sion, or whether the explosion is an incident to the fire. 
 If a fire breaks out and during the progress of the fire an 
 explosion occurs, the effects of the explosion as well as 
 the fire will be included and covered by a policy which 
 insures against a loss caused by fire. The fire in such a 
 case is regarded as the efficient cause of the loss and the 
 explosion as a mere incident. 1 So, where a fire was 
 burning a building, and during the progress of the fire 
 some combustible material took fire and a stream of 
 water was turned on the material and an explosion took 
 place, the fire was the efficient cause of the loss and the 
 explosion but a mere incident. 2 The proximate cause is 
 the efficient cause the one that necessarily sets the 
 other causes in operation. The causes that are merely 
 incidental or instruments of a superior or controlling 
 agency are not the proximate causes and the responsible 
 ones, though they may be nearer in time to the result. 
 It is only where the causes are independent of each other 
 that the nearest fs, of course, to be charged with the dis- 
 aster. 3 So, where combustible material while in the pro- 
 cess of combustion produced an explosion, the effects are 
 the natural results of the combustion of combustible ma- 
 terial; and, as a combustion is the action of fire, the fire 
 must be held to be the proximate cause of the loss. 4 
 
 An insurance company was held not liable for the 
 destruction of a building where the policy exempted the 
 company for damages caused by explosives, although 
 there was a written slip attached to the policy providing 
 
 1. Heuer vs. Northwestern Ins. Co., 144 111., 393; 33 N. E., 41: 
 
 Briggs vs. North American & M. Ins. Co., 53 N. Y., 446; 
 United Life, F. & M. Ins. Co. vs. Foote, 22 Ohio St., 340. 
 
 2. American Steam Boiler Ins. Co. vs. Chicago Sug. Ref. Co., 57 
 
 Fed. R., 294; 21 L. R. A., 572. 
 
 3. Aetna Ins. Co. vs. Boon, 95 U. S., 117. 
 
 4. Scripture vs. Lowell Mut. F. Ins. Co., 10 Cush., 356; Wash- 
 
 burn vs. Farmers Ins. Co., 2 Fed. R., 304. 
 
Remote Cause. 417 
 
 to indemnify for any loss caused by lightning and the 
 lightning set fire to a building seventy feet awa}^, and the 
 fire was communicated to some explosive material in the 
 building and the material exploded and caused the dam- 
 ages. The lightning was regarded as the remote cause 
 of the damages under the provisions of the policy. * The 
 general rule is, however, that if the fire starts and is in 
 progress, any explosion which may take place during the 
 progress of the fire will be regarded but as a mere inci- 
 dent to the fire and the insurance company will not be 
 exempt from liability. 2 So, where a policy provided that 
 the company would not be liable "for explosions of any 
 kind whatever," the company was liable for any loss by 
 fire which followed the explosion. 8 Where the policy 
 only provided that the company shall not be liable for 
 damages caused by an explosion, the company will be 
 liable for damages by fire which was caused by the ex- 
 plosion. 4 But, in such a case, the damages will be lim- 
 ited to the injuries caused by the fire. 5 There are cases, 
 however, which hold that no liability attaches when the 
 fire was the result of the explosion under a policy ex- 
 empting the company from any liability occasioned by 
 an explosion. 8 So, where the 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 collision." 
 The insurer was not liable where a collision of railroad 
 trains loaded with petroleum occurred and the oil took fire 
 and caused the goods to be consumed. 7 It has been said 
 
 1. Germana Fire Ins. Co. vs. Roost, 55 Ohio St., 581; 45 N. E., 
 
 1097. 
 
 2. Trans-Atlantic Fire Ins. Co. vs. Dorsey, 56 Md., 70; LaForee 
 
 vs. Williams, 43 Mo. App., 518; Washburn vs. Miami Val- 
 ley Ins. Co., 2 Fed. R., 633; Washburn vs. Farmers Ins. 
 Co., 2 Fed. R.,304. 
 
 3. Heffron vs. Kittaning Ins. Co., 132 Pa., 580. 
 
 4. Boalmans Fire & Marine Ins. Co., 23 Ohio St., 85. 
 
 5. Commercial Ins. Co. vs. Robinson, 64 111., 265; Stanley vs. 
 
 Western Ins. Co., L. R.; 3 Exch., 71. 
 
 6. St. John vs. American Mut. Fire Ins. Co., 11 N. Y., 516; Lou- 
 
 isiana Mut. Ins. Co. vs. Tweed, 7 Wall., 44. 
 
 7. Imperial Fire Ins. Co. vs. Fargo, 95 U. S., 227. 
 
418 Using Prohibited Article. 
 
 by a court in a well considered case that "it is a well set- 
 tled principle of law of insurance that the proximate, 
 and not the remote, cause of the loss must be regarded, 
 in order to ascertain whether the loss is covered by the 
 policy or not;" and, "where a lighted match is applied to 
 a keg of powder, or to illuminating gas confined in a 
 room, and an explosion thereby occurs, which causes 
 damages but is not followed by combustion, the explo- 
 sion is the proximate cause of the injury, and the lighted 
 match is only the remote cause. In such a case fire does 
 not reach the property injured, but the concussion result- 
 ing from the explosion damages it." 1 So, where fire 
 broke out some distance from a building and an explo- 
 sion took place, and the building was damaged by the 
 concussion, "it would be going into the causes of causes 
 to say that this was an injury caused by the fire to the 
 property insured. 2 
 
 Where a policy does not exempt the company from 
 loss caused by an explosion the company will be liable, 
 although the fire may be the remote cause. 3 
 
 SEC. 10. DESTRUCTION OF BUILDING BY BRINGING 
 MATERIAL ON THE PREMISES WHICH is PROHIBITED BY 
 THE POLICY. Where the insured occupied a building 
 with a stock of wood and willow ware at the time a pol- 
 icy was issued on the stock, and thereafter the insured 
 leased a porch on the outside and rear of the building to 
 a third person, and such third person drove a nail in the 
 wall on the outside of the building and hung a gasoline 
 lamp filled with gasoline on the nail, and the gasoline 
 lamp exploded and destroyed the building, and a fire was 
 started by the explosion, the company was not liable for 
 the damages to the stock where the policy provided that 
 
 1. Heuer vs. Northwestern Nat. Ins. Co., 144 111., 393. 
 
 2. Everett vs. London Assn. Co., 19 C. B. N. S., 126; Caballero 
 
 vs. Home Mut. Ins. Co., 15 La. Ann., 217. 
 
 3. Renshaw vs. Missouri Ins. Co., 103 Mo., 595; Renshaw vs. 
 
 Firemans Ins. Co., 33 Mo. App., 394; Waters vs. Merchants 
 L. Ins. Co., 11 Pet., 213; Scripture vs. Lowell Mut. F. Ins. 
 Co., lOCush.,359. 
 
Waiver by the Insurer. 419 
 
 no gasoline shall be kept, used or allowed on the prem- 
 ises, even if the insured did not know that the third per- 
 son was using- the gasoline lamp. His ignorance was 
 no excuse for failure to keep the covenant in the policy 
 that no gasoline would be kept or used on the premises. 1 
 
 SEC. 11. WHERE THE INJURY is NOT CAUSED BY THE 
 KEEPING OR USE OF THE PROHIBITED ARTICLE. An in- 
 surance company is liable for the destruction of a build- 
 ing by fire where the policy provides that petroleum, 
 benzine, gasoline, etc., shall not be kept, used or allowed 
 on the premises, excepting kerosene of the legal stand- 
 ard, which shall be used for lights only, provided that 
 the oil shall be drawn and the lamps filled and trimmed 
 in the day time. Although the insured used oil in mak- 
 ing a fire in a stove, but the use of the oil in such a 
 manner did not cause the fire. a 
 
 An insurance company cannot defeat the payment of 
 a loss caused by fire where the policy prohibited the 
 keeping and use of gasoline on the premises when the 
 loss was not occasioned by the keeping and use of the 
 gasoline; and this is more especially true where the in- 
 surance company inspected the premises and was fully 
 aware of the business that was carried on and there is 
 proof that the use of gasoline was necessary in the con- 
 duct of the business. 3 
 
 SEC. 12. WAIVER. If the prohibited articles are on 
 the premises at the time the policy is issued and the 
 agent of the company was cognizant of the way the 
 building was kept and used at the time the policy was 
 issued, the company waives the provision in the policy 
 as to the keeping of the prohibited articles on the prem- 
 ises. 4 So it is an implied waiver of a condition in an in- 
 
 1. Kohlman vs. Selvage, 54 N. Y. Supp., 230. 
 
 2. Snyder vs. Dwelling House Ins. Co., 59 N. J. L., 544; 37 Atl. 
 
 1022. 
 
 3. Fraim vs. National Fire Ins. Co., 170 Pa., 151; 32 Atl., 613; 
 
 Fraim vs. Manchester Fire Assn. Co., 170 Pa., 166; 32 Atl., 
 616; American Car Ins. Co. vs. Green, 41 N.W., 77. 
 
 4. Kenton Ins. Co. vs. Downs, 12 Ky. L. R., 115; 13 S.W., 882. 
 
420 Prohibited Article Necessary. 
 
 surance policy against the keeping- of gasoline on the 
 insured, premises where the policy insures against the 
 goods usually kept in "a general store" and the gasoline 
 was one of the articles usually kept, 1 and if a policy per- 
 mits gun powder to be kept and kerosene not to exceed 
 five barrels, the policy is not avoided because three 
 boxes of squibs were kept on the premises, contrary to a 
 printed clause in the policy when the insurance was on a 
 general store and the insurance covered such articles as 
 were usually kept. 2 So where an insurance policy cov- 
 ered a factory and its machinery, but prohibited the use 
 of petroleum in and about the factory, the company was 
 held liable on the policy where the insured used petro- 
 leum for lubricating purposes. The keeping and the use 
 of petroleum would not release the company from dam- 
 ages where the evidence showed that it was appropriate 
 and customary article when used for lubricating pur- 
 poses and kept solely for that purpose; and that the in- 
 surance company, when it placed the policy on the build- 
 ing, knew that it was used in the factory and to operate 
 the factory it was necessary to use machinery and that 
 the machinery must be oiled; and that if petroleum was 
 usual and necessary the company must be supposed to 
 have contracted with reference to such use as an ordi- 
 nary incident to the business and the use must have been 
 contemplated though prohibited in the printed portion 
 of the policy. 8 Where a policy provided that it would 
 become void if benzine was kept, used or allowed on the 
 premises, and at the time the policy was issued the as- 
 sured owned a furniture store and repair shop con- 
 nected therewith which was covered by the insurance 
 and used benzine at the time the policy was issued, and 
 continued to use it thereafter and the benzine was an ar- 
 ticle usually and necessarily kept in operating the re- 
 pair department of a furniture store, the policy was not 
 
 1. Barnard vs. National Fire Ins. Co., 27 Mo. App., 26. 
 
 2. Mechanics & T. Ins. Co. vs. Floyd, 20 Ky. L. Rep., 1538; 49 
 
 S. W., 543. 
 
 3. Carlin vs. Western Assn. Co., 57 Md., 515; 40 Am. R., 440. 
 
Insuring Prohibited Article. 421 
 
 forfeited by the use of the benzine, * 'because when a con- 
 tract of insurance by the written portion, covers prop- 
 erty to be used in conducting a particular business, the 
 keeping- of an article necessarily used in such business 
 will not avoid the policy, even though expressly prohib- 
 ited in the written portion of the contract." 1 So where a 
 policy covered a jewelry stock and described as "watches, 
 jewelry, etc., and watch-makers' materials" and the de- 
 scription was in writing, and the printed portion of the 
 policy contained a condition that if benzine, gasoline, or 
 petroleum or crude earth or coal oils are kept or used on 
 the premises without written consent, the policy would 
 become void, and the evidence showed that it was neces- 
 sary to use kerosene in cleaning clocks and that benzine 
 was on hand and used to clean watches and that the in- 
 sured was engaged in the business at the time the policy 
 was issued and that the insured had kerosene and ben- 
 zine in the building when it was destroyed by fire, the 
 insured was entitled to recover the value of the stock 
 destroyed because the kerosene and benzine were insured 
 under the terms "watchmakers' materials." If the ar- 
 ticles are insured, the insurance company cannot say the 
 keeping of them avoided the policy. And if the kerosene 
 or benzine were not insured yet if the articles were em- 
 ployed by the insured in the conduct of the particular busi- 
 ness and the use of such articles is a necessary incident 
 to the conduct of the business, "the parties will be pre- 
 sumed to have contracted with reference thereto, and at 
 the time the insurance policy was issued the insurer will 
 be presumed to have in contemplation the use of these 
 substances by the assured when he assumed the risk; 
 and under such circumstances will be presumed to have 
 waived the condition under which the use of the sub- 
 stances would render the policy void." 2 "The issuance 
 of a policy of insurance with knowledge of facts which 
 
 1. Faust vs. American Fire Ins. Co., 91 Wis., 158; 64 N. W., 883. 
 
 2. Marl vs. Conn. F. Ins. Co., 95 Ga., 604; 23 S. E., 463; 30 L. 
 
 R. A., 835; Harper vs. New York City Ins. Co., 22 N. Y., 
 441; Hall Insurance Co., 58 N. Y., 292. 
 
422 Prohibited Article Used by a Tenant. 
 
 by the terms of the policy, render it void will be treated 
 as a waiver of a ground of forfeiture. * So where a policy 
 of insurance provided that the company would not be 
 liable if kerosene was kept on the premises insured, but 
 the agent told the insured that the provision of the 
 policy would not affect the rights of the insured and the 
 kerosene was kept on the premises at the time the policy 
 was issued the acts of the ag^ent bind the company and 
 the waiver will operate on a renewal of the policy.* 
 And where a person owned and operated a paint shop 
 and had the same insured and benzine was a necessary 
 article of use in the business a condition in a policy that 
 the policy is void if benzine is kept or used on the premises 
 will not prevent a recovery on the policy, though ben- 
 zine was used. 8 So where an insurance policy prohibits 
 the use of petroleum or its products on the premises, but 
 a printed slip permitted the property to be used for haz- 
 hazardous or extra-hazardous purposes, the policy will 
 not be void because the insured used the prohibited arti- 
 cles on the premises. 4 
 
 SEC. 13. LIABILITY OF INSURANCE COMPANY TO THE 
 OWNER WHEN THE TENANT KEEPS AND USES THE PRO- 
 HIBITED ARTICLES ON THE PREMISES. Where the pro- 
 hibited articles were brought on the insured premises by 
 a lessee the acts of the lessee is binding on the lessor and 
 the policy will become void. B And if a policy provides 
 that a company shall be released from all liabilty in case 
 naphtha is kept or used on the premises, the insurance 
 
 1. Phoenix Ins. Co. vs. Flemming, 65 Ark., 54; 39 L. R. A., 789; 
 
 44 S. W., 484; Yack vs Home Mut. Ins. Co., Ill Cal., 503; 
 34 L. R. A., 857; Hears vs. Humbolt Ins. Co., 92 Pa., 15; 
 Harper vs. Albany Ins. Co., 17 N. Y., 197; Archer vs. Mer- 
 chants, etc. Ins. Co., 43 Mo., 434; Phoenix Ins. Co. vs. 
 Taylor, 5 Minn., 492; Whitemash vs. Conway Fire Ins. Co., 
 16 Gray 359; Viele vs. Germania Ins. Co., 26 la., 9. 
 
 2. Kruger vs. Western F. & M. Ins. Co., 72 Cal., 91; 13 Pac., 156. 
 
 3. Mascott vs. First Nat. Ins. Co., 69 Vt., 116; 37 Atl., 255. 
 
 4. Russell vs. Manufacturers & B F. Ins. Co., 50 Minn., 409; 52, 
 
 N. W.,906. 
 
 5. Kohlman vs. Selvage, 34 (N. Y.) App. Div., 380. 
 
Right of a Mortgagee. 423 
 
 becomes forfeited by the keeping- or use of the prohibited 
 article by a tenant of the insured, although the insured 
 had no knowledge of the keeping 1 or use of the naphtha 
 by the tenant. 1 There are authorities which hold that 
 the increase of the risk by the tenant cannot affect the 
 rig-hts of the landlord. 8 Where, however, an adminis- 
 trator of a deceased wife took out a policy on a house 
 and furniture belonging- to the deceased and the husband 
 and the children of the deceased remained in possession 
 and occupied the house after the death of the wife, and 
 the husband brought a threshing machine near the house 
 which, as the insurance company claimed, increased the 
 risk contrary to the terms of the policy and the house 
 and its contents were destroyed by reason of sparks from 
 the engine of the machine setting straw on fire, but the 
 record did not show what sort of a contract, if any, ex- 
 isted between the husband and the administrator as to 
 the occupany of the house, so the court presumed that 
 the husband had absolute custody of the premises and 
 had perfect freedom to use the house in the conduct of 
 his business as he had charge of the house in the interest 
 of the estate, the administrator was held bound by the 
 acts of the husband; and, "if the act which increased 
 the insurer's risk was that of the tenant, unknown to the 
 landlord, it was no excuse for the inf ring-erne nts of the 
 covenants of the policy. If the husband occupied the 
 premises under the circumstances indicated as inferable 
 from the record, he would probably be clothed with more 
 power and dominion over the property than the case of 
 an ordinary tenant who had no interest in the title; and 
 his acts of negligence would be binding on the assured. " s 
 A mere temporary use of a prohibited article by a ten- 
 ant will not per se work a forfeiture. 4 
 
 1. Badger vs. Platts, 68 N. H., 222; 44 Atl., 296; Gunther vs. 
 
 London, etc. Ins. Co , 134 U. S., 110; see also Insurance 
 Co. vs. Gunther, 116 U. S., 113; Association vs. Williamson, 
 26 Pa. St., 196. 
 
 2. Adair vs. Southern Mut. Ins. Co., 107 Ga., 297; 33 S. E., 78. 
 
 3. Adair vs. Southern Mut. Ins. Co., 107 Ga., 297; 33 S. E., 78; 
 
 45 L. R. A., 204. 
 
 4. Adair vs. Southern Ins. Co., 107 Ga., 297; 33 S. E., 78. 
 
424 Prohibited Article Used by Employes. 
 
 No act of a tenant can affect the rights of a mort- 
 gagee where the insurance policy provides that in case 
 of loss the amount of the loss not to exceed the mortgage 
 debt or the amount of the policy shall be paid to the 
 mortgagee, although the tenant brought naphtha on the 
 premises contrary to the terms of the policy and the 
 building was destroyed. 1 
 
 Where the agents of the owners of a building employ 
 persons to paint the building and the persons employed 
 use naphtha torches to burn off the old paint, and such 
 agents acquiesce in having the paint taken off in this 
 way, the acts of the agents are binding on the insured. 8 
 
 SEC. 14. LIABILITY OF AN INSURANCE COMPANY FOR 
 A DESTRUCTION OF A BUILDING WHERE THE EMPLOYES 
 OF THE OWNER KEEP AND USE THE PROHIBITED ARTICLE 
 ON THE PREMISES. Where an insurance policy provided 
 that "this policy, unless otherwise provided by agree- 
 ment endorsed thereon, or added hereto, shall be void if 
 the hazard shall be increased by any means within the 
 control or knowledge of the insured, or if there be kept, 
 used or allowed on the above described premises, ben- 
 zine, naphtha or other explosives;" and the persons in 
 charge of the building, a court house, made an agreement 
 with a person to paint the court house some time before 
 the policy was issued, and after the policy was issued, 
 the painter began to remove the old paint and gasoline 
 torches were used to blister the paint so that it may be 
 removed preparatory to that of applying the new paint. 
 The painter was engaged in removing the paint from the 
 tower and cornice when the fire occurred. The tower 
 and the cornice were covered with a metal covering and 
 beneath this covering was wood and the painter and his 
 men had about removed all the paint when the fire took 
 place. The painter also kept a five-gallon can of gaso- 
 line in the tower to be used when needed to supply the 
 torches. One of the defenses set up by the insurance 
 
 1. Badger vs. Platts, 68 N. H., 222; 44 Atl., 296. 
 
 2. First Cong. Ch. vs. Holyoke Mut. Ins. Co., 158 Mass., 475; 19 
 
 L. R. A., 587. 
 
Risk Increased by Use of Gasoline. 425 
 
 company was that gasoline or naphtha was stored, in 
 the building covered by the policy at the time of the fire, 
 continuously for several days immediately preceding 1 the 
 fire, and that no agreement was indorsed on the policy 
 or added thereto permitting such storage; and by reason 
 thereof, within the true intent and meaning of the pro- 
 visions of the policy, the policy became null and void. 
 
 The temporary keeping of gasoline or naphtha for 
 the purpose of removing the old paint was held not with- 
 in the terms of the policy and that the meaning of the 
 word keep was as to "store" merchandise for safe keep- 
 ing to be delivered in the same condition as when received 
 and that the gasoline or naphtha used by the painters 
 was not stored in the building within the terms of the 
 policy. 1 
 
 The insurance company also contended that the haz- 
 ard was increased by the use of gasoline without the 
 consent of the company. The insured presented evidence 
 that it was customary for painters for many years before 
 the policy was issued to use gasoline to burn off the old 
 paint. The use of the gasoline was held not to render the 
 policy void and that there was an implied exception in 
 the policy of what was done in the making of ordinary 
 repairs, and when the policy did not expressly prohibit 
 the use of these articles in making ordinary repairs they 
 may be used for the purpose of repair. 8 
 
 So where a policy provided that the insured should 
 not keep petroleum, naphtha, benzine, etc,, on the prem- 
 ises, the policy did not apply to the temporary taking of 
 benzine on the premises for the purpose of removing 
 grease and dirt from the machinery used on the premises. s 
 
 SEC. 15. WHEN is THE HAZARD CONSIDERED AS IN- 
 CREASED? An action for a loss was brought against an 
 
 1. Smith vs. German Ins. Co., 107 Mich., 270; 65 N. W., 236; 30 
 
 L. R. A., 368. 
 
 2. Smith vs. German Ins. Co., 107 Mich., 270; 65 N. W., 236; 30 
 
 L. R. A., 368. 
 
 3. Mears vs. Humbolt Ins. Co., 92 Pa., 15; 37 Am. R., 647; see 
 
 also O'Neil vs. Buffalo Ins. Co., 3 N. Y., 122. 
 
426 Increase of Risk Question of the Jury. 
 
 insurance company, where the policy provided: That the 
 "policy shall be void if * * * without the assent in 
 writing" or print of the company * * * the situation 
 or circumstance affecting 1 the risk shall be, or with the 
 knowledge, advice, agency or consent of the insured be 
 so altered as to cause an increase of such risk * * * 
 or if champhene, benzine, naphtha or other chemical oils 
 or burning fluids shall be kept or used on the insured 
 premises." The building insured was a frame church and 
 the outside was covered with weatherboards and was 
 painted and sanded on the outside at the time it was in- 
 sured. The paint had peeled and curled and at the time 
 of the fire the church trustees were repainting the build- 
 ing. The painters were hired by the day to do the work 
 and the trustees were to furnish the material and the 
 trustees had arranged to have the old paint removed and 
 had arranged with the painters that the paint would be 
 burned off with a torch. The boss painter had procured 
 a naphtha torch which was so constructed that the torch 
 would hold a quart of naphtha, and the torch had a han- 
 dle on it and a tube extending on the opposite side 
 through which a flame would be emitted, produced by 
 the gas from the naphtha and compressed air and was 
 so arranged that it would send a flame about two feet, 
 when in use. This flame was used to blister the paint 
 so that it could be removed. At the time the torch was 
 used the weather was dry and hot and the risk was 
 greatly increased. 
 
 In giving construction to the policy the court held 
 that naphtha was not "kept" on the premises. "The word 
 'kept' as used in the policy implies a use of the premises 
 as a place of deposit for the prohibited articles for a con- 
 siderable period of time." 1 
 
 The naphtha which was used to burn off the paint 
 from the outer walls was held to be used on the premises 
 although the torch was kept about two feet from the wall 
 but the flame from the torch reached the wall and a con- 
 
 1. First Cong. Ch. vs. Holyoke Mut. Ins. Co., 158 Mass., 475. 
 
Payment of Loss by Wrongdoer. 427 
 
 struction which would hold that the naphtha was not used 
 "on the premises" would be too narrow and unreasonable. * 
 The owners of the church were entitled to have it 
 submitted to a jury on one ground, to- wit: that the change 
 making the risk more hazardous occurred while the per- 
 sons in charge of the property were making ordinary 
 repairs and in the proper way, and that under the policy 
 there was an implied exception of what was done in 
 making ordinary repairs. "Such provisions are not in- 
 tended to prevent the making of necessary repairs and 
 the use of such means as are reasonably required for that 
 purpose." Both parties are presumed to make the con- 
 tract with reference to the proper repair of the property 
 so that it would be preserved. And although the making 
 of such ordinary repairs may increase the risk or the 
 making of such repairs may involve the use of some pro- 
 hibited articles, but the use of such articles will not make 
 a policy void unless the policy expressly provides that 
 they shall not be used. The question whether the re- 
 pairs and the use of the articles at the time they were 
 used are questions of fact for a jury to determine. a 
 
 SEC. 16. RIGHT OF ACTION .AGAINST INSURANCE 
 COMPANIES WHEN THE Loss Is PAID BY THE PERSON 
 CAUSING THE DAMAGE. An insured building was dam- 
 aged by an explosion of gas and a fire which followed 
 the explosion, and the insured brought an action against 
 the gas company for the loss caused by the explosion, and 
 for the loss not covered by the insurance policy, and the 
 gas company settled with the insured for the damages 
 caused by the explosion, and the insured then brought 
 an action against the insurance company for the dam- 
 ages caused by the fire. The insurance company set 
 up a defense, that the insured had settled with the gas 
 company and released it from liability from the fire, as 
 
 1. First Cong. Ch. vs. Holyoke Mut. Ins. Co., 158 Mass., 475. 
 
 2. First Cong. Ch. vs. Holyoke Mut. Ins. Co., 158 Mass., 475; 
 
 O'Neilvs. Buffalo F. Ins. Co., 3 N. Y., 122; Franklin F. 
 Ins. Co. vs. Chicago Co., 36 Md., 102; Putman vs. Conn. 
 Ins. Co., 4 Fed. R., 753. 
 
428 Loss Not Covered by the Insurance. 
 
 appeared by a copy of the settlement and release attached 
 to the affidavit of defense, but the agreement of settle- 
 ment between the insured and the gas company purported 
 to settle and release "all claims and demands of every 
 kind of the said first party arising 1 out of or occasioned 
 by the explosion, * * * including claims for loss or 
 suspension of rent by the tenants of the said first party. 
 It is understood that the foregoing 1 settlement and re- 
 lease do not affect the claim of the said first party 
 against insurance companies for loss occasioned by fire, 
 and which claim said first party shall be entitled to re- 
 ceive in addition to and independently of the sum paid 
 by the second party." The insured was held not barred 
 from a recovery against the insurance company, since 
 the settlement expressly excepted the loss occasioned 
 by the fire, and only settled the damages done by the 
 explosion of the gas in shattering 1 the windows and walls 
 and the loss caused by the buildings being temporarily 
 unfit for occupancy. 1 "If the fire resulted from the ex- 
 plosion, and the explosion was chargeable to the negli- 
 g"ence of the gas company, the insured had an election 
 whether to proceed against the gas company because of 
 its negligence, or against the insurance, company on its 
 covenants of indemnity. If the insured had proceeded 
 against the g~as company, a recovery against for a loss 
 by fire would, when paid, have reimbursed the insured; 
 and its claim being 1 thus satisfied, no recovery could have 
 been against the insurance company. But the insured 
 has chosen to divide its loss into two parts, and to de- 
 mand one of these not covered by its policies of insur- 
 ance from the g-as company, and the other which is cov- 
 ered from the insurance company. The liability of the 
 insurer is clear. The claim is within the letter of the 
 policy. " 2 So where an insured had his stock of merchan- 
 dise insured in nine different insurance companies, and the 
 
 1. Insurance Company of N. A. vs. Fidelity Title & Trust Co., 
 
 125 Pa., 523; 16 Atl., 791; 2 L. R. A., 586. 
 
 2. Insurance Company of N. A. vs. Fidelity Title & Trust Co., 
 
 125 Pa., 523; 16 Atl., 791; 2 L. R. A., 586. 
 
Eights of Insurance Company. 429 
 
 property insured was destroyed by illuminating 1 gas, and 
 the loss was due to the negligence of the gas company, and 
 the insured furnished proof of loss, and after such proof 
 was made the insurance companies had appraisers ap- 
 pointed as was provided by the terms of the policies, and 
 the appraisers did not allow the insured the amount for 
 which the insured furnished proof, and after the allow- 
 ance was made by the insurance companies, and before 
 the amount so allowed was paid, the insured instituted 
 a suit against the gas company for the negligent de- 
 struction of his property, and claimed damages to the 
 amount of $50,000, while the insurance companies, through 
 the appraisers, allowed only $17,360.00. Before the case 
 was heard the claimants, as well as other insurance 
 companies, paid the insured the amount for which the 
 respective companies were liable, but before the pay- 
 ments were made the insured informed the various insur- 
 ance companies that the suit was pending", and asked 
 them to assist in the prosecution of the suit, and a ma- 
 jority of the insurance companies assented, but some in- 
 surance companies refused and placed their ground of re- 
 fusal on the fact that the suit should be prosecuted in 
 the name of each insurance company for the amount of 
 damage paid to the insured, and after the case had been 
 called for trial the gas company offered to settle the 
 case, but the insured at first refused until some of the 
 insurance companies, which were interesting themselves 
 in the prosecution of the suit, urged him to settle, and 
 these companies and the insured agreed to divide the 
 judgment of $18,000 agreed upon and submitted interroga- 
 tories to the jury which was empaneled to try the case 
 and the jury found the damages to be $9,000 on stock 
 and $9,000 on his loss in trade and the $9,000 on the stock 
 was to be prorated among- the insurance companies; and 
 the insurance companies which undertook to prosecute 
 separate suits found out after the settlement of the suit 
 that separate suits could not be maintained, and then 
 claimed their proportion of the amount paid by the gas 
 company to the insured while the insured insisted that the 
 
430 Suit by Insurers Against Wrongdoers. 
 
 insurance companies were entitled to no more than their 
 prorata share of the $9, 000 allowed for damages to stock 
 and costs and attorney's fees should be deducted from 
 that amount, the insured was held entitled to settle the 
 amount of unliquidated damage with the gas company 
 where a majority of the companies consent to such a set- 
 tlement and the other companies that failed or refused to 
 join in the prosecution of the suit against the person re- 
 sponsible for the loss are entitled to only their pro rata 
 share of the amount allowed for the property destroyed 
 and covered by the insurance, and the costs and expenses 
 and attorney's fees are first to be deducted from the judg- 
 ment so recovered and that the insured was entitled to 
 the full amount allowed for damages not covered by the 
 insurance policies. * 
 
 SEC. 17. RIGHT OF THE INSURANCE COMPANIES TO 
 MAINTAIN A SUIT AGAINST THE PARTIES RESPONSIBLE 
 FOR THE LOSS AFTER THE PAYMENT OF THE LOSS TO 
 THE INSURED. The principles of law governing the right 
 to subrogation is that the insurance company stands in 
 the position of a surety for the loss sustained by the in- 
 sured by reason of the wrongful acts of others and the 
 insurer has the same rights and remedies as the insured 
 may have against the parties responsible for the loss, but 
 the rights of the insurer do not arise until the payment 
 of the loss to the insured and the insurer has no right to 
 demand to be subrogated to the rights of the insured be- 
 fore payment. 2 But where the policies provide that the in- 
 sured on receiving payment shall assign the policy to the 
 insurers the companies may be subrogated to the rights 
 of the insured against the person who caused the loss. 3 
 An action on the policy by the insurer must be brought 
 
 1. Svea Assurance Co. vs., Packham, Md., ; 48 Atl., 359: 
 
 52 L. R. A., 95. 
 
 2. Insurance Co. of N. A. vs. Fidelity Title & Trust Co., 125 Pa., 
 
 523; 16 Atl., 791; 2 L. R. A., 586. 
 
 3. Niagara Fire Ins. Co. vs. Fidelity Title & Trust Co., 125 Pa., 
 
 516; 16 Atl., 790" Packham vs. German Fire Ins. Co., 91 
 Md., 515; 46 Atl., 1066; 50 L. R. A., 828. 
 
Rights of Insurer How Barred. 431 
 
 in the assured's name where the property destroyed ex- 
 ceeds in value the amount insured. l But where the stat- 
 ute provides the action may be brought in the name 
 of the insured. 8 The insurer is regarded as but a surety 
 and is entitled to the remedies and securities of the as- 
 sured and is entitled to use his name in an action to re- 
 cover the money which the insurer has paid. The "right 
 is based upon the equitable doctrine that where one has 
 been obliged to pay money to another by the non-feasance 
 or misfeasance of a third, who being at fault ought to bear 
 the loss, the party so paying as by his direct obligation 
 towards the party suffering the loss he may be compelled 
 to do, shall be allowed indirectly, and through the right 
 which the injured party had, to compel the wrongdoer to 
 bear the burden which was imposed by his fault, although 
 between him and the wrongdoer there is no direct rela- 
 tion upon which to found a cause of action. * * * The 
 liability of the wrong doer is, in legal effect, first and 
 principal and that of the insurer secondary." 8 The general 
 rule is that upon the payment of the loss by the insur- 
 ance company the insurance company has all the right 
 and remedies the insured had against the persons whose 
 negligence caused the loss. 4 
 
 SEC. 18. RIGHT OF INSURANCE COMPANY TO RE- 
 COVER FROM A THIRD PERSON How BARRED. The right 
 of subrogation is derivative and comes solely from the 
 assured and can be enforced only in his right. If the in- 
 
 1. Union Fire Ins. Soc. vs. Standard Oil Co., 59 Fed. Rep., 984; 
 
 8 C. C. A., 433; 19 U. S. App., 460. 
 
 2. Packham vs. German Fire Ins. Co., 91 Md., 515; 46 Atl., 1066; 
 
 50 L. R. A., 828. 
 
 3. Costellain vs. Preston L. R., 11 Q. B. Div., 380; Packham vs. 
 
 German Fire Ins. Co., 91 Md., 515; 46 Atl., 1066; 50 L. R. 
 A., 828. 
 
 4. Hall vs. Nashville & C. Ry., 13 Wall, 370; Niagara Fire Ins. 
 
 Co., vs. Fidelity Title & Trust Co., 123 Pa., 516; 16 Atl., 
 790; Sims vs. Mutual Fire Ins. Co., 101 Mis., 586; 77 N.W., 
 908; Omaha Ry. Co. vs. Ins. Co., 63 Neb., 514: 73 N. W., 
 951. 
 
432 Eights Based on the Eights of the Insured. 
 
 sured has no right against the third person or if the in- 
 sured has released the wrong doer from liability the in- 
 sured has no right or claim which can be transferred to 
 the insurer and the insurer can maintain no action against 
 a third person who may have caused the damages. * 
 
 Where the claim against the third person is based 
 on a tort committed by the third person, one action only 
 can be brought against the wrong doer. 2 So where a 
 person has his office furniture and fixtures insured against 
 loss and subsequently the property is destroyed by fire 
 and the fire was caused by an explosion of illuminating 
 gas and the gas company was liable for the explosion 
 and an action was brought by the insured against the 
 gas company to recover damages for the destruction of 
 other property than that covered by the policy on the fix- 
 tures and furniture and by an express agreement of the 
 parties to that suit the damage to the insured property 
 was excluded from the verdict and judgment and the judg- 
 ment was satisfied by the gas company and the insured 
 then brought an action against the insurance company 
 to recover the loss sustained and covered by the policy, 
 the insurance company was held to be released from its 
 liability on the policy because only one action was main- 
 tainable against the gas company for damages and as 
 the insured had expressly excluded the damage done to 
 the property covered by the policy the legal effect of 
 this act was the same as if the insured had released the 
 company from all damages done to this property and 
 thus destroyed the right of the insurance company to 
 maintain action against the gas company. 3 
 
 The rule is well settled that where the insured re- 
 covers from the wrongdoer the full amount of the policy 
 or released the wrongdoer from liability, the insured 
 must give credit for what he received or might have col- 
 
 1. Phoenix Ins. Co.vs. E. & W. Trans. Co., 117 United States, 312. 
 
 2. Packham vs. German Fire Ins. Co., 91 Md., 515; 46 Atl., 1066; 
 
 50 L. R. A., 828. 
 
 3. Packham vs. German Ins. Co., 91 Md., 515; 46 Atl., 1066: 50 
 
 L. R. A., 828. 
 
Settlement With Wrongdoer. 433 
 
 lected from the wrongdoer and if the whole amount of 
 damages could be recovered the insurance company will 
 be released from liability where the insured destroys the 
 right of the insurer to recover from the wrongdoer. 1 
 
 Nor will the insurance company be bound because 
 the adjuster was on the ground and took part in the pro- 
 ceedings where the company gave him no authority and 
 the adjuster expressly disclaimed any authority from the 
 insurance company at the time of the transaction, but 
 expressed his opinion that it was a good settlement and 
 that the company he believed would be satisfied. 2 
 
 SEC. 19. WHEN THE RIGHT OF ACTION AGAINST AN 
 INSURANCE COMPANY is HELD NOT TO BE BARRED AL- 
 THOUGH THE INSURED HAS SETTLED WITH THE PERSON 
 WHO CAUSED THE Loss. Where an insurance policy 
 provided that the insurer would, in case of loss and pay- 
 ment thereof, to the insured, be entitled to be subrogated 
 to the rights of the insured against the person causing 
 the loss and through the negligence of a gas company 
 the insured's property was destroyed and the insured 
 settled with the gas company but excluded from the set- 
 tlement the amount for which the property was insured 
 and that the claim against the insurance company would 
 be independent of that paid by the gas company, the in- 
 surance company on the payment of the amount of the 
 policy is entitled to be subrogated to the rights of the 
 insured and can maintain the action against the gas com- 
 pany for the amount paid to the insured and the settle- 
 ment in no way affected the right of action. 3 In an ac- 
 tion by the insured against the insurer the court said: 
 
 1. Packham vs. German Fire Ins. Co., 91 Md., 515; 46 Atl., 1066; 
 
 50 L. R. A., 828; Aetna Ins. Co. vs. Humboldt & St. I. Ry. 
 Co., 3 Dill., 2; Commercial Union Ins. Co. vs. Lister L. R., 
 9 Ch., 483; Dunham vs. New England ut. Ins. Co., 1 
 Law. Dec., 253; Fed. Cas., 5 vV'est, ; E. Free Ins. Co. 
 vs. Isaacs., 1 Q. B., 226 (1896); 2 Q. B., 377 (1896). 
 
 2. Packham vs. German Fire Ins. Co., 91 Md., 515; 46 Hil., 1066; 
 
 50 L. R. A., 828. 
 
 3. Peoples Natural Gas Co. vs. Fidelity Title & Trust Co., 150 
 
 Pa., 8; 24 Atl. .339. 
 
434 When is the Claim Barred. 
 
 "Whether the gas company is liable to reimburse the in- 
 surer in an action brought, in the name of the insured, 
 for its use, will depend on whether the fire was the re- 
 sult of criminal negligence of the gas company. This 
 part of the demands of the insured has not been paid by 
 the gas company, nor has it been extinguished by the 
 terms of the release. On the other hand, it has been ex- 
 pressly saved from the operation of the release and as- 
 serted to be a valid claim, "which said party shall be 
 entitled to receive in addition to and independently of 
 the sums paid by the second party." 
 
 "After having thus asserted the existence of the 
 claim as unpaid, or subsisting, the gas company could 
 not be heard, after the recovery against the insurance 
 company, to deny its validity or to assert its release or 
 extinguishment." 1 
 
 The rule laid down in these cases does not agree 
 with the rule laid down in the Packham v. German Fire 
 Ins. Co. 91 Md. 515, and the former cases were decided 
 long before the latter and the same questions were prac- 
 tically involved in both cases but different conclusions 
 were arrived at. The action in the Maryland case was 
 against the insurance company for the amount of the 
 policy for the furniture and fixtures, and the loss sus- 
 tained on furniture and fixtures was, by express agree- 
 ment of the parties to the suit, wholly excluded from the 
 consideration of the jury and from damages awarded by 
 the verdict, so the cases are practically the same, but the 
 courts came to opposite conclusions. 2 
 
 SEC. 20. RIGHTS OF THE INSURER AGAINST THE IN- 
 SURED WHERE THE INSURANCE COMPANY PAYS THE 
 Loss TO A MORTGAGOR WHERE THE INSURED WAS THE 
 CAUSE OF THE Loss. An insurance company is entitled 
 to be subrogated to the rights of the mortgagee where 
 the company issued a policy to a person who was the 
 
 1. Insurance Company of N. A. vs. Fidelity Title & Trust Co., 
 
 125 Pa., 523; 16 Atl., 791; 2 L. R. A., 586. 
 
 2. Peckham vs. German Ins. Co., 91 Md., 515; 46 Atl., 1066; 50 
 
 L. R. A., 828. 
 
Suit by the Insurance Company Against the Mortgagor. 435 
 
 owner of the premises at the time and the policy pro- 
 vided that, in case naphtha was used or kept on the 
 premises, the policy would become void, and at the time 
 the policy was issued there was a mortgage on the prem- 
 ises insured, and the policy provided that in case of loss 
 the proceeds of the policy would be paid to the mort- 
 gagee to the extent of his interest, and the owner of the 
 premises sold the same and the grantee assumed the 
 mortgage, and the grantee had the insurance policy as- 
 signed to him, and the premises were thereafter destroyed 
 by the use of naphtha on the premises, and the insurance 
 company paid the amount due to the mortgagee and 
 brought an action against the insured. 1 In such a case, 
 no act or default of the owner of the premises or the ten- 
 ant of such owner could defeat their rights of the mort- 
 gagee, and, after the payment of the mortgagee, the 
 insurance company or its assigns could enforce the mort- 
 gage against the mortgagor. 2 
 
 An insurance company may pay the claim to the 
 mortgagee and then take an assignment of the note and 
 mortgage and enforce them against the mortgagor where 
 the mortgagor violated the terms of the policy and 
 thereby caused the loss, and where the policy provided 
 that no act of the mortgagor would avoid the policy as 
 to the mortgagee.* But, where the policy does not pro- 
 tect the mortgagee against the acts of the mortgagor 
 and the commission of such acts would avoid the policy, 
 the policy becomes void both to the mortgagor and mort- 
 gagee, 4 but it has also been held that a nominal plaintiff 
 could not defeat the payment of the loss by any act or 
 negligence on his part. 6 
 
 1. Badger vs. Platts, 68 N. H., 222; 44 Atl., 296. 
 
 2. Badger vs. Platts, 68 N. H., 222; 44 Atl., 296. 
 
 3. Travelers Ins. Co. vs. Race, 142 111., 338. 
 
 4. The Illinois Mutual Fire Ins. Co. vs. Fix, 57 111., 151; Hale vs. 
 
 Mechanics Mut. Ins. Co., 6 Gray, 169; People vs. Resolute 
 Fire Ins. Co., 17 Wis., 379; State Mut. Ins. Co. vs. Rob- 
 erts, 31 Penn., 438; Hackney vs. Virginia Fire & M. Ins. 
 Co., 99 Tenn.,729. 
 
 5. World vs. Somerset Mut. Fire Ins. Co., 42 Maine, 224. 
 
IND EX 
 
 (Figures refer to pages.) 
 ABANDONMENT 
 
 of a lease or grant, 178, 189, 195. 
 
 of a lease where search was made and no oil or gas was found, 152, 153, 154. 
 
 of a homestead, 141. 
 
 of a pipe line, 133. 
 
 of well, what is, penalty, 22. 
 
 success or abandonment meaning of in lease, 157. 
 
 ABUTTING 
 
 owner retains the absolute title where only an easement passes to the 
 public, 92. 
 
 ACCEPTANCE 
 
 of lease by lessee, 170, 171. 
 
 of a lease binding on lessee or his assignee, although signed only by lessor, 
 
 170, 171. 
 
 what acts constitute. 171. 
 of rent by a widow after the death of her husband ratifies a voidable 
 
 lease, 146, 147. 
 of rent from first lessee after the execution of a second lease by the lessor 
 
 will not waive a forfeiture as to the second lessee, 160, 161. 
 of rent as waiver of a forfeiture, 158, 159, 160, 161, 162, 163. 
 of an offer to compromise pending litigation binding on a purchaser of 
 
 stock in a corporation, 164, 165. 
 of an assignment of a lease, 212. 
 of a surrender of a lease, 53. 
 
 ACCOUNTING 
 
 for minerals taken under an oil and gas lease where hostile claim is 
 made, 70. 
 
 for rents due from lessee to lessor, 70. 
 
 by surviving partner, 70. 
 
 by persons who make a secret entry upon land and take minerals there- 
 from, 40. 
 
 between partners, 40. 
 
 presumption of law as to the interest of each partner, 40. 
 
 accounting on dissolution of partnership, 40. 
 
 by tenant for life who was also tenant in common in remainder, 47. 
 
 bill for an accounting by the remainderman against the life tenant who 
 extracts oil and gas, 48. 
 
 lessee must account to lessor where the lessor's land is drained through 
 well operated by lessee on other lands, 218. 
 
 ACKNOWLEDG MENT 
 
 of a deed or lease of the homestead for the protection of oil and gas, 140. 
 when necessary to pass the homestead estate, 141. 
 of a deed or lease of a married woman's lands, 145. 
 
 of the validity of a void deed of no effect where no new deed was exe- 
 cuted, 145. 
 
438 Index. 
 
 ADVERSE POSSESSION 
 
 nature of the estate in oil and gas, 65. 
 
 possession of the surface gives no possession of the oil and gas beneath the 
 surface, 65. 
 
 where separates were created in the surface and in the oil and gas pos- 
 session of one estate is not possession of the other, 66. 
 
 separate entry must be upon each estate, 66, 67. 
 
 actual entry must be made upon the mineral estate to give title by, 68. 
 
 secret entry of no avail to give title, 68. 
 
 color of title, payment of taxes on mineral estate will give title to the min- 
 eral estate where separate estates were created and the mineral es- 
 tate comes within the term of unoccupied land, 67. 
 
 no title can be acquired where the statute requires an actual residence on 
 the land, 67, 68. 
 
 entry upon the surface under an adverse claim to the whole will give ti- 
 tle to the minerals where the separate estates were created after such 
 entry, 68, 69. 
 
 entry upon the surface by the owner of the minerals not adverse to the 
 owner of the surface where separate estates exist, 69. 
 
 possession of a particular part of the surface by the owner of the miner- 
 als must be continuous and possession of different parcels and not con- 
 tinuous not sufficient, 69. 
 
 receivers pending settlement of adverse claims, 69. 
 
 will not be appointed where hostile claimant is solvent and adverse claim 
 was acquired before petitioner acquired his title, 70. 
 
 AGREEMENT 
 
 in regard to the location of mines, 174. 
 
 when not contrary to the Statute of Frauds, 174, 175. 
 
 in regard to boundary lines, 174. 
 
 APPURTENANCES 
 
 gas main appurtenant to main plant, 80. 
 incorporeal rights will pass as, 177. 
 
 as a general rule land will not pass as appurtenant to land, 177. 
 sale or lease of the oil or gas in land will carry sufficient land for the pro- 
 duction, storage, and ingress and egress to the place of operation, 177. 
 way of necessity passes to reach minerals in a lower stratum, 177, 178. 
 of gas mains and pipe lines, 80. 
 
 ASPHALTUM 
 defined, 5. 
 
 ASSIGNMENT 
 
 of a lease creates no privity of contract between lessor and assignee but 
 
 creates a privity of estate, 212. 
 assumption of covenants in the lease by assignee binding although the 
 
 lease is re-assigned, and though made on a separate instrument, 212. 
 lessee liable to lessor after assignment, 211, 212. 
 lessor may assign royalties, 216. 
 
 BAILMENT 
 
 lessee is regarded as bailee of owner of the land, 176. 
 
 when meters and mixers of gas companies are not bailed to the con- 
 sumers, 268, 269. 
 BITUMEN 
 
 defined, 5. 
 
Index. 439 
 
 BOUNDARY 
 
 agreement not to sink wells void, 174. 
 
 such agreement not contrary to Statute of Frauds, 174. 
 
 protection of lands sufficient consideration, 175. 
 
 state may prohibit mining up to the boundary of adjoining lands, 175. 
 
 necessary parties to settle boundary lines in equity, 175. 
 
 CHATTEL, REAL 
 
 lease or license for the production of oil and gas a chattel real, 176. 
 
 may be sold on execution and purchaser becomes assignee, 176. 
 
 may be mortgaged, 176. 
 
 and is sometimes treated as personal property, 176. 
 
 on death of owner leasehold goes to administrator, 176, 177. 
 
 COMMUNITY PROPERTY 
 rights of the wife in, 48. 
 how lost, 48. 
 
 CONDITIONAL TITLE 
 
 condition attached to lease and deeds for mining purposes, 178. 
 failure to perform, implied conditions, 178. 
 forfeiture, who may take advantage of, 179. 
 
 DEATH 
 
 caused by failure of a gas company to furnish gas for fuel purposes in 
 cold weather, 257, 258. 
 
 DEED. (See homestead, lunatics and married women.) 
 DESTRUCTION. (See Life Estate.) 
 
 DEVISE 
 
 of royalties, 216, 217, 218. 
 
 in separate tracts where lease was made of the whole tract, 216, 217. 
 adjustment of royalties among devisees where a particular tract devised 
 is only operated upon, 216, 217. 
 
 DIVISION. (See Partnership.) 
 of royalties, 217. 
 widow's part, 218. 
 among tenants in common and joint tenants, 217, 218. 
 
 DRAINED 
 
 land drained through wells on other lands, 218. 
 liability of lessee for royalty for so doing, 218. 
 
 EMINENT DOMAIN 
 
 right to condemn land for pipe lines, 128. 
 
 when title vests in pipe line companies, 128. 
 
 condition precedent, 128, 129. 
 
 acquisition of land by private agreement for pipe lines, 128, 129. 
 
 stipulation in such agreement, 129. 
 
 attempt to bar others from acquiring right of way void, 129, 130. 
 
 when an agreement by a land owner from whom a right of way was ac- 
 quired to transport all oil through the grantee's pipe line is valid both 
 as to himself and his grantees, 129, 130. 
 
 partial restraint of trade by parties engaged in a public business void, 130. 
 
 legislative declaration of what is a public business, 130. 
 
 exclusive grant of right of way void, 130. 
 
440 Index. 
 
 EMINENT DOMAIN Continued 
 
 personal covenants to do particular things not binding on subsequent 
 
 grantees, 130, 131. 
 
 covenant to transport through a particular pipe line not binding on gran- 
 tee, 131. 
 
 enforcement of personal covenant not favored, 131. 
 damages for land taken, 131. 
 
 prospective damages from explosion and fires not allowed, 131. 
 rights acquired by pipe line companies, 132. 
 right to surface support, 132. 
 right to release surface support, 132. 
 when may the surface support be released, 133. 
 condemnation of the release of surface support by a land owner to a 
 
 mining company, 134. 
 coal company a necessary party, 134. 
 
 right to remove pipe line on abandonment of the line, 133. 
 right to enter to remove, 134. 
 damages caused by removal, 134. 
 
 pipe line placed across the right of way of a railroad company, 135. 
 no right to place pipe line on right of way where the railroad has the fee 
 
 and the land owner on both sides of the road has but an easement by 
 
 reservation in the original grant, 135, 
 way of necessity to transport gas over the right of way by a land owner 
 
 having land on both sides of a railroad, 135. 
 owner of a sub-stratum of oil or gas has a way of necessity through a coal 
 
 mine to reach the oil or gas below the coal, 135, 136, 137. 
 pipe line on streets the laying out of which was declared void after the 
 
 pipe was laid, 137. 
 right to continue the use, 137, 138. 
 removal of pipe line by the owner of the fee in the highway when pipes 
 
 were placed there without his consent, 138, 139. 
 
 ESTOPPEL 
 
 of tenant to deny title of his lessor, 218, 219. 
 what may be shown by tenant, 218, 219. 
 
 EVIDENCE 
 
 expert evidence to show the poisonous nature of gas, 324, 325. 
 
 expert evidence to show that the time and manner of shooting a well was 
 
 negligence, 367, 368, 369. 
 See Negligence. 
 
 EXECUTORS AND ADMINISTRATORS 
 
 when royalties go to, 218 
 
 lease for production of oil and gas will pass to, 176, 177. 
 
 EXECUTION OF OIL AND GAS LEASES 
 
 a lease of the homestead must be the joint act of husband and wife, 140. 
 when is a homestead occupied under a lease for the protection of oil and 
 
 gas, 140, 141. 
 wife cannot authorize husband to execute a lease by giving him power of 
 
 attorney, 140, 141. 
 
 to what interest will a homestead estate attach, 141. 
 
 infants cannot make a valid lease for the production of oil or gas, 141, 142. 
 lease by infants voidable, 142. 
 permission from court to lease infants' land must comply with the law 
 
 with reference to the disposition of real estate, 142. 
 infants cannot be made parties by representation, 142, 143. 
 
Index. 441 
 
 EXECUTION OF OIL AND GAS LEASES Continued 
 
 where infants are remaindermen the infants are entitled to the corpus of 
 
 the fund derived from the oil and gas produced and the life tenant the 
 
 income during life, 142. 
 estoppel does not apply to infants when they were not made parties to a 
 
 suit, 143. 
 infants need not prevent life tenants from making improvements, or 
 
 from buying an apparent outstanding title, 143. 
 statute does not begin to run against infants until the death of the life 
 
 tenant, 143. 
 
 father cannot sell or exchange his infant children's lands, 144. 
 lease of land by insane person, 144. 
 when does title pass though insane, 144. 
 lien of the purchaser on the land for the money paid, 144. 
 lease or deed of an insane person void when conservator was appointed 
 
 before sale or lease, 144, 145. 
 compliance with the statute in reference to appointment of conservator, 
 
 144, 145. 
 
 lease or deed of married women, 145. 
 requisites of such a deed or lease, 145. 
 sale or lease of land for the production of oil and gas by a married woman, 
 
 145, 146. 
 
 when is such a lease void, 145, 146. 
 
 when voidable, 146 147. 
 
 ratification after the death of the husband, 14(5, 147. 
 
 lease defectively executed, 147. 
 
 number of witnesses, 147. 
 
 when is such a lease absolutely void, 147, 148. 
 
 when a good contract in equity for a lease, 147, 148. 
 
 EXPLOSIONS (See negligence, insurance, etc) 
 FIXTURES 
 
 trade fixtures defined, 71, 73. 
 
 greater latitude allowed between landlord and tenant than between mort- 
 gagor and mortgagee, 71. 
 
 rules in regard to the right to fixtures, first intention, second annexation 
 and third adaptation, 72. 
 
 what shows an intention not to annex when placed on land by mistake or 
 by a license or by a lessee for the production of oil and gas, 72. 
 
 right of lessee to remove, 72, 73. 
 
 when the right to remove is lost, 73. 
 
 when the lease is silent as to removal, 73. 
 
 when is a lease regarded at end in determining the right to remove fix- 
 tures, 73, 74. 
 
 liability of lessor for value of fixtures converted by him, 74. 
 
 fixtures, how taxed, see Taxation. 
 
 FORFEITURES. (See Leases.) 
 
 GAS 
 
 natural gas defined, 6. 
 
 artificial gas defined, 7. 
 
 natural gas where found, 6, 7. 
 GASOLINE 
 
 death caused by, 347, 348, 349. 
 
 failure to brand packages, 350. 
 
 common law duty to make known the dangers of, 349. 
 
 delivery of gasoline in place of puroline, 360, 361. 
 
 use of gasoline prohibited by a clause in an insurance policy (see insur- 
 ance). 
 
442 Index. 
 
 HIGHWAYS (See Streets and Highways) 
 
 HOMESTEAD (See Abandonment, Execution of Leases and Acknowledgment) 
 
 INDIANA 
 
 form of lease, 182, 183, 184. 
 
 when forfeited for failure to operate, 183. 
 
 construction of lease, 183, 184. 
 
 INSANE PERSONS (See Execution of Leases) 
 INSURANCE 
 
 as affected by petroleum and gas, 402-436 
 
 liabilty of an accident insurance company for death caused by inhaling 
 
 gas, 403, 4G3, 405, 406. 
 
 particular provision against liability, 402, 403, 404. 
 
 construction of such a provision by the New York courts, 403, 404, 405. 
 construction of such provision by the Pennsylvania courts, 405, 406. 
 construction of such particular provisions by the Illinois and Virginia 
 
 courts, 406, 407. 
 
 constructions of such provisions by the federal courts, 407, 408. 
 criticism of such construction by the Wisconsin courts, 408. 
 provisions in policies against injuries arising from gas and petroleum and 
 
 its products, 408, 435. 
 when an insurance company is not liable when petroleum and its products 
 
 are kept on its premises, contrary to provisions in a policy, 408, 409, 410. 
 what acts will not avoid a policy, 410, 411, 412. 
 not made void by the temporary use, 411, 412. 
 
 or where it was customarily used at the place where the policy was issued 
 or where the written portion covered and insured the prohibited articles, 
 or where the policy does not become void by the use of the prohibited arti- 
 cles and the loss is not caused by such articles, 419, 420. 
 exemptions from liability when explosions cause its damages, 414, 415. 
 not liable in such a case where no fire follows, 414, 415. 
 not liable where the explosion was the proximate cause of the injury, 415, 
 
 416, 417. 
 
 liable where fire is the cause of the explosions, 416, 
 liable where the prohibited article did not cause the loss 412, 413. 
 liable when the insurer insures the prohibited article, 419, 420. 
 particular provisions in policies in such a case, 420, 421, 422. 
 violation of a provision in a policy by a tenant is the same as if the owner 
 
 had violated such provisions, 422, 423, 
 violation of such a provision by a husband after the death of his wife who 
 
 was the owner, 422. 
 
 violation of such provision by agents, 424, 435. 
 
 when the violation of the provision will not effect the rights of a mortga- 
 gee, 424. 
 use of the prohibited articles in making repairs when not a violation of 
 
 the policy, 435, 426, 427. 
 
 or the keeping of such article when used to make repairs, 426. 
 when the hazard is considered as increased by the use of prohibited 
 
 articles in making necessary repairs, 426, 427, 427. 
 construction of such provisions, 426. 
 question of liability to be determined by a jury, 427. 
 payment of the loss not covered by the insurance by the wrong doer, 428, 
 
 429, 430. 
 construction of an agreement between the insured and the wrong doer as 
 
 to the assured 's right against the insurer, 427, 428, 429. 
 when an assured may maintain an action or settle the damages with the 
 
 wrong doer, 428, 429, 430. 
 
Index. 443 
 
 consent of a majority of the companies which sustained the loss in such a 
 
 case, 430. 
 
 right of action by the insurer against the wrong doer, 430. 
 such a right based on the right of the insured, 430, 431. 
 equitable doctrine of subrogation, 430, 431. 
 action must be prosecuted in the name of the insured, 431, 432. 
 payment of loss to the insured or his release of the wrongdoer or his own 
 
 wrongful acts will bar an action against the wrong doer, 431, 432, 433. 
 when an insurance company will not be estopped in such a case, 433. 
 when the rights of the insured against the insurer is not barred although a 
 
 settlement was made with the wrong doer, 433, 432, 435. 
 right of action by its insurer against the insured when the insurer paid the 
 
 loss to the mortgagee, 435. 
 
 JOINT LEASE (See Leases) 
 
 of separate tracts of land, 180. 
 division of royalties, 180. 
 form of joint lease, 180, 181, 182. 
 
 JUDICIAL NOTICE 
 
 of the unstability of value in mining property, 178. 
 of the explosive nature of oil and gas, 102. 
 
 LEASES 
 
 for the production of oil and gas, 149 200. 
 
 rules of construction, 149. 
 
 when test wells must be put down, 149. 
 
 failure to put down test wells, 149, 150. 
 
 when title to the oil and gas vests under a lease when test wells are to be 
 
 put down, 150. 
 
 meaning of the words "test wells," 150. 
 abandonment of tests, effect, 151. 
 failure to find oil in test wells, 151. 
 
 what is due deligence under an oil and gas lease, 151, 152. 
 lessee must follow the provisions of the lease as to the mode and manner 
 
 of operation, 152, 153. 
 
 forfeiture where royalty is the main consideration for a lease, 152, 153, 154- 
 effect of the words "as much longer as oil or gas is found in paying quanti- 
 
 tieies," 153, 154. 
 
 when judicial proceeding are not necessary to avoid a lease, 153, 154. 
 when lease is forfeited from lapse of time, 154. 
 optional leases, what are, 154, 155. 
 when optional lease is not binding, 155. 
 when optional lease becomes effective, 155, 156. 
 effect of nominal consideration on a lease otherwise optional, 15fl. 
 when must operation be prosecuted continuously, 156, 157. 
 when is work commenced in compliance with a lease, and what acts amount 
 
 to a commencement, 157, 158. 
 estoppel of lessor, 158, 159. 
 
 failure to commence work or pay rent effect, 159. 
 payment of rent on first lease after forfeiture and the execution of a sec- 
 
 ond lease, 160, 161. 
 
 no relief in equity from a forfeiture, 160, 161. 
 failure of lessee to perform covenants and condition in a lease will not ipso 
 
 facto work a forfeiture, 161, 162. 
 
 when the condition of forfeiture must be expressed, 152. 
 estoppel of lessor to declare a forfeiture, 162, 163. 
 surrender of a lease, acceptance, binding on co-tenant or heir, 103, 164. 
 
444 Index. 
 
 LEASES Continued 
 
 surrender by assignee, effect on covenants, 164. 
 
 surrender by corporation, effect, rights of stockholders, 164, 165. 
 
 termination of lease by its own terms, 165, 166. 
 
 when the phrase as long as oil or gas is found in paying quantities will not 
 
 prolong lease, 165, 166. 
 selection of places to operate, effect, written consent, excepted places from 
 
 operation, 166, 167. 
 
 covenants running with the land, personal covenants, 167, 168, 169. 
 what covenants are implied, 169. 
 implied covenant to sufficiently develop the land, damages for failure to 
 
 do so, 169, 170. 
 
 acceptance of lease, 170, 171 . 
 
 estoppel of lessee and co-partners to deny execution of the lease, 171, 172. 
 printed form of a lease not competent to prove the contents of a disputed 
 
 lease, 171, 172. 
 
 description of the land leased tracts to be operated upon, 172. 
 eviction of lessee, what amounts to, damage constructive eviction, 172, 173. 
 merger of agreement in leases thereafter executed or the lease where the 
 
 fee is acquired, 174. 
 forms of leases as used in the various states see Indiana, New York, Ohio, 
 
 Pennsylvania, Tennessee, Texas and West Virginia. 
 LIENS 
 
 for sinking oil and gas wells, 114, 117. 
 
 on leasehold estate, 114, 115. 
 
 for equipments, derricks, for hauling pipe and drilling wells, 114, 115, 117. 
 
 preferred liens for labor, 117. 
 
 superintendent of pipe line may have a preferred lien, 117, 118. 
 lien for labor under the general mechanic lien law, 114, 115, 118. 
 
 lien on gas plant for furnishing particular appliance, 119, 120. 
 
 when defeated because no lien is given for particular appliance, 119, 120. 
 
 lien for pipe furnished as appurtenances to gas plants, 116, 119, 120, 
 
 lien on oil refineries and appliances, 116, 125, 126. 
 
 lein will attach to the interest of the lessee both in the mine and the sur- 
 face, 115, 186. 
 
 when the lien on the interest of the lessee will attach where right of 
 forfeiture exists, 126. 
 
 lien attaches to the ground with improvement thereon and not to the ma- 
 chinery placed thereon, 126, 127. 
 
 when a lien will not attach, 115. 
 
 will not attach to the plant for oil used to lubricate the machinery, 116, 117 
 
 lien not lost or waived by taking of notes for the amount due for labor 
 and material, 121, 122. 
 
 presumption of law in such case, 121, 122. 
 
 conflicting liens, 12'?, 133, 124, 125, 126. 
 
 when a mechanic's lien is superior to a judgment lien or mortgage, 122, 
 123, 124. 
 
 when a mortgage is superior to a mechanic's lien, 124, J25, 126. 
 
 when a mortgage taken by a director and stockholder is superior to a me- 
 chanic's lien, 124, 125. 
 
 when director and stockholder is barred from acquiring a lien, 125, 126. 
 
 right of assignee of such director not greater than the rights of the di- 
 rector, 125, 126. 
 
 MARRIED WOMEN. (See Execution of Leases.) 
 MASTER AND SERVANT 
 
 when the relations exist, 318, 319. 
 
 a master is liable for the death of a servant when the master sent the ser- 
 vant to a place of danger, 323, 335, 341. 
 
Index. 445 
 
 MASTER AND SERVANT Continued 
 
 or where an explosion of gas was caused by the negligence of the fore- 
 man, 341. 
 
 not liable where the direct cause of the injury was the negligence of a fel- 
 low-servant, 340, 341, 342. 
 
 the master is liable where a contract is let to an independent contractor but 
 the work was done because of a franchise granted to the master, 342, 343. 
 
 liable when the place to work is not safe, 320, 321. 
 
 not liable for an injury caused by a defective ladder when the servant 
 had opportunity equal to the master to ascertain the defects, 321, 322. 
 
 liable when a servant used a ladder contrary to the instructions of the 
 master where the defect was not the cause of the injury, 322, 323. 
 
 liable where a defective oil still is constructed under the directions of the 
 master and it explodes and injures a servant, 351, 353. 
 
 liable for not having stop cocks in pipes leading from an oil still to pre- 
 vent gas from returning to the still, 352. 
 
 liable for not having stop cocks in pipes to shut off the flow of oil in case of 
 danger, 361, 362, 363. 
 
 liable for an explosion of gasoline caused by the negligence of another 
 servant, 363. 
 
 not liable for an explosion of gas from curde petroleum when the ser- 
 vant was negligent, 352. 
 
 or the servant was aware of the dangers and had full charge of the work, 
 352, 353. 
 
 not liable when a servant went into a water tank to paint it and the paint 
 gave off an explosive gas where the paint was a well known brand and 
 in general use, 335, 336. 
 
 liable for the death of a minor servant who did not know the dangers of 
 petroleum and was not informed of the danger by the master, 356. 
 
 not liable for the death of a person who went to the assistance of a servant 
 overcome by gas in a tank when the master was not negligent, 358. 
 
 liability of a shipper to the servant of the consignee, 381, 382. 
 
 liability of a shipper to servant of the carrier, 387, 388. 
 
 liability a question for the jury, 363, 387, 388. 
 
 liable where the negligence of the master combined with that of a fellow- 
 servant. 336. 
 
 when not liable for an explosion of a gas tank, 318, 319. 
 
 or the fall of the roof of a gas room during a fire, 319, 320. 
 
 liable for a trespass of its servant in furthering the interests of the mas- 
 ter, 298. 
 
 MONOPOLIES 
 
 exclusive right in streets creates a monopoly, 108, 109. 
 
 gas companies cannot barter away their right to do business or cease 
 
 using part of streets in the interest of another company, 109, 110. 
 gas companies organized to serve the public, 110, 111. 
 what act stamps the business of a public nature, 110, 111. 
 violation of the anti-trust laws, penalty, 111. 
 oil monopolies, 111. 
 Standard Oil trust, 111, 112. 
 void at common law, 112, 113. 
 purchase of an interest in a partnership in the interest of the Standard 
 
 Oil trust, 112. 
 what things gas companies may sell to customers, 113. 
 
 NAPHTHA 
 
 sale of naphtha for illuminating purposes, 346, 347- 
 
 liability of the vendor, 346, 347. 
 
 injury to a servant from an explosion of, 353, 354. 
 
446 Index. 
 
 NAPHTHA Cont inued 
 
 injury to a servant of the carrier when the dangers were not known to 
 
 him, 388, 399. 
 
 escape of naphtha conveyed through pipes, 354, 355, 356. 
 use prohibited by the terms Of an insurance policy, see Insurance. 
 
 NEGLIGENCE 
 
 arising out of gas, 94-104; 292-345. 
 
 gas a dangerous agency, 96, 292, 300. 
 
 judicial notice of its explosive nature, 102. 
 
 degree of care and vigilance required of the vendors of gas, 293. 
 
 vendors must see that gas does not escape so as to injure a third person, 
 
 292, 293. 
 
 vendors liable although the injury could not have been foreseen, 292. 
 
 may be made liable for injuries without regard to negligence, 293. 
 
 the escape of gas evidence of negligence, 97, 98, 293, 294. 
 
 when not evidence of, 315. 
 
 the fact that gas escapes and does injury will make out aprima facie case, 
 
 293, 294, 314. 
 
 escape of gas after notice evidence of protracted and inexcusable negli- 
 gence, 294. 
 evidence sufficient to show that shade trees and shrubbery were killed by 
 
 gas, 102. 
 
 evidence as to the effect of gas on vegetation at other places, 315. 
 evidence sufficient to permit an expert to testify as to the effect of gas on 
 
 vegetation, 314, 315. 
 proof of the pressure of gas at particular places to show the pressure at 
 
 the place of injury, 313, 314. 
 preliminary proof in such a case, 313, 314. 
 
 to use a lighted taper to locate a leak on a street not evidence of negli- 
 gence, 316. 
 
 or to drill a hole near a gas main and apply a lighted taper, 316. 
 to turn on gas without properly testing service pipe is negligence, 294, 295. 
 or to put in a defective meter or not to repair it after notice, 295, 296. 
 or to use a defective pipe in putting in a drop light though it was done 
 
 without compensation, 296. 
 
 or to fail to make a chandelier safe although done without pay, 296. 
 or to search for a leak in a building with a light, 296, 333. 
 or to increase the pressure without notice to the consumer, 307, 308, 309, 310, 
 
 811, 312. 
 
 to turn off the gas which supplied a building composed of flats and then to 
 turn on the gas again without any notice to the occupant of a fiat is 
 negligence, 298, 299. 
 
 to turn on the gas in a building made up of flats and just constructed with- 
 out inspection of the fixtures open to inspection, is 299, 300, 301. 
 to disconnect a meter from the pipes and a failure to put caps on the ends 
 
 of the pipes, is 301, 302. 
 
 to leave a key in a gas box so that the gas could be turned on by a third 
 person when the gas was ordered to be turned off by the consumer, 
 is 331, 332. 333. 
 to disregard the possibility of the pipes' being broken by the construction 
 
 of a sewer near such pipes, is 302, 303. 
 or a sub-way, 333. 
 to permit the escape of gas so as to accumulate in the manholes of sewers, 
 
 is 304, 305, 306. 
 
 to put in pipes without properly testing them, is 101. 
 to lay pipes on the surface of a highway, is 94, 95. 
 to lay them on the bed of a navigable river, is 96. 
 
 to continue to send gas through defective pipes though system is pur. 
 chased from another, is 99. 
 
Index. 447 
 
 NEGLIGENCE Continued 
 
 to continue to use defective gas mains after they were injured by a third 
 person, is 100, 101. 
 
 to open the gas box of another company by mistake and change the press- 
 ure from low to high pressure, 297, 298. 
 
 to permit gas to escape so that it is placed within the power of a third per- 
 son to do injury, 345. 
 
 to operate a natural gas system without a watchman, 309, 311. 
 
 to send a servant to a place of danger in a gas plant, 323, 334. 
 
 to furnish a servant an unsafe place to work, 320, 321. 
 
 to put a water meter in a place where gas escapes and the water inspector 
 sustains injuries from the gas, 325. 
 
 to furnish defective ladders to a servant, 331, 322, 323. 
 
 to lease premises with defective gas fixtures, 325, 826, 327. 
 
 to propel gas through pipes insecurely jointed, 336, 337. 
 
 to permit gas to escape in the gas works and to provide no means to have 
 it pass into the open air, 325. 
 
 concurrent negligence of the master and a fellow servant, 336. 
 
 of the owner and contractor, 336, 337. 
 
 negligence of parents, tenants, or servants a bar to a recovery, 339. 
 
 when not a bar, 339, 340. 
 
 of a fellow servant when a bar to a recovery, 340, 341. 
 
 when not a bar to a recovery, 341, 342. 
 
 of an independent contractor no bar when the injury results from the ex- 
 ercise of a franchise, 342, 343, 344. 
 
 Pennsylvania rule in such cases, 343. 
 
 of a third person when not a bar, 344, 345. 
 
 of the person injured, 337, 338, 339. 
 
 duty of such person, 337. 
 
 when danger will be presumed to be known by the person injured, 337, 338. 
 
 what will the person be required to do in such cases, 337, 338. 
 
 negligence in having defective flues, stove pipes or stoves, 308, 309, 310. 
 
 in leaving a house with gas fires burning when it is known that the press- 
 ure is variable, 310, 311, 313. 
 
 vendors of gas not liable where the gas was turned on by a third person, 297. 
 
 nor where it was turned on by a former servant, 297. 
 
 nor where a person is permitted to turn on the gas at other places and 
 vendor did not object, 297. 
 
 nor for an unlawful trespass by an agent of another company, 297, S98. 
 
 nor is a gas company liable when the negligence of a fellow servant caused 
 the gas to explode, 341, 342. 
 
 arising from petroleum, 346-370. 
 
 injuries from the use of naphtha sold by a refiner to a retail dealer and 
 by him to a consumer who sustained injuries, 346, 347, 360, 361. 
 
 sale of oil for illuminating purposes unfit for such use, 346. 
 
 sale of gasoline inherently dangerous, 347, 348, 349, 350. 
 
 representations as to its safety binding on the vendor, 349. 
 
 duty to make known the dangers, 349. 
 
 vendor liable for a failure to brand the jug "gasoline" where a daughter of 
 the vendee was injured, 350. 
 
 vendee's knowledge of the contents of the jug will not excuse the vendor, 
 350. 
 
 negligence of a servant of a vendor in delivering oil to a vendee, 350, 357. 
 
 whether the use of a candle in such a case is dangerous, 351. 
 
 questions for the jury in such a case, 351. 
 
 injuries to a third person caused by the escape of naphtha from pipes laid 
 on the streets of a city, 353, 354, 355. 
 
 duty to care for its pipes and liable though broken by the city, 354,355. 
 
448 Index. 
 
 NEGLIGENCE- Continued 
 
 what is negligence in such a case, 353, 354, 355. 
 
 pipes in the street not a nuisance when laid under lawful authority, 354, 355. 
 
 question of liability for the jury, 354, 355. 
 
 not liable for the death of a third person who went to the assistance of a 
 
 servant who was in danger when the master was not negligent to 
 
 either, 358, 359. 
 liable in such a case where the owner was negligent in leaving a ditch 
 
 open on a public street without any warning of the danger, 358, 359. 
 owner of the premises liable T\ hen the business is negligently conducted 
 
 and fire is communicated from such premises, 359, 360. 
 liable though the person injured selected the place after the owner of the 
 
 oil was located, 360. 
 
 and liable though the place was sold by the person injured, 360. 
 evidence of negligence in such a case, 360. 
 
 fraud in filling an order with gasoline when puroline was ordered, 360, 361. 
 no liability where the differences exist only in name, 360, 361. 
 brand of an oil inspector when sufficient to inform a purchaser, 361. 
 falsely branding petroleum or its products by an oil inspector, 360, 
 duties under the Iowa statute, 365, 366. 
 liability wholly statutory, 366. 
 when the inspector is both criminally and civilly liable statute must be 
 
 construed as a penal statute, 366. 
 when a defective instrument will release an oil inspector where the test 
 
 was honestly made, 366. 
 
 inspector not liable where the injury was from other causes, 367. 
 negligence growing out of the use of crude oil as a fuel, 361, 362, 363. 
 escape of oil into sewers, 363. 
 liability of the owner, 363, 364. 
 liability of a city for turning oil into a sewer and the oil formed gas and 
 
 exploded and killed and injured people, 364, 365. 
 injuries from shooting oil and gas wells, 367, 368, 369. 
 evidence of negligence in such a case, 367, 368. 
 expert testimony in such a case, 367, 368. 
 
 liability of the owner and the person hired to do the shooting, 368, 369. 
 joint liability, 369. 
 
 injunction against shooting an oil or gas well where dangerous, 369. 
 (See also Master and Servant, Evidence, Nuisance.) 
 
 NEW YORK LEASE 
 
 form, failure to operate, construction, forfeiture, 184, 185. 
 execution of second lease, 184, 185. 
 what interest is conveyed, 184, 185. 
 
 NUISANCE 
 
 created by petroleum and gas 396-403. 
 
 what in per se a, 397. 
 
 what is in fact a, 397. 
 
 damages resulting from the natural development of the land not a, 396, 
 
 damages resulting from oil and gas brought from other land owners will 
 be guilty of maintaining a, 395. 
 
 damages resulting from the escape of oil and gas, 396, 397, 398. 
 
 to pollute the atmosphere with disagreeable oders from oil will make the 
 owner guilty of maintaining a, 397, 398, 399. 
 
 to permit oil to find its way to a sewer will make its owner guilty of main- 
 taining a, 398. 
 
 or to pollute a spring with oil, 398 to taint the atmosphere with gases 396, 
 397, 398, 399. 
 
Index. 449 
 
 NUISANCE Continued 
 
 to permit gas to escape from an oil well, so as to poison the air floating 
 
 over the premises of another, 397. 
 or from a furnace, 386. 
 or from a refinery, 398. 
 or from gas works, 400, 401. 
 
 when damages amount may be recovered and by whom, 396-402. 
 injunctions against putting down gas wells, because they will create a 
 
 nuisance, 399-400. 
 when injunction will not be granted, 399, 400 
 
 OHIO LEASE. 
 
 form of lease, 190, 191. 
 
 failure to operate, 191. 
 
 when lease is terminated, 191. 
 
 lease defectively executed when a good contract fora lease, 192. 
 
 assignment of lease, 192, 193. 
 
 PARTITION 
 
 of lands held in co-tenancy, 61. 
 
 co-owners in fee may have but life tenant and owner in fee cannot have, 
 
 61, 62. 
 
 life tenant who is also tenant in common in fee may have, 62. 
 partition of oil and gas rights independent of surface void, 62. 
 reason why partition cannot be made of oil and gas independent of the 
 
 surface, 62, 63, 64. 
 
 right to partition solid minerals, 64. 
 agreement not to partition, 64. 
 
 PARTNERSHIP 
 
 in mining, how created, express and implied agreements, 30. 
 
 equal interests not essential to, 30. 
 
 in law partners are regarded as joint tenants or tenants in common, 30. 
 
 principles of ordinary partnership apply in some instances but not gen- 
 erally, 51. 
 
 when not liable as partners, 52. 
 
 when relation of tenants in common is not changed to one of partnership 
 or what acts will create a tenancy and not a partnership, 31, 32. 
 
 created where some furnish money and others perform services and all 
 share in the profits, 32. 
 
 but not in Pennsylvania where the land is held by them as tenants in 
 common, 32, 33. 
 
 land may be held by partners as tenants in common and operated upon by 
 them as partners, 33. 
 
 distinction between mining and commercial partnerships, 33. 
 
 mining partnership not dissolved by death, insanity, imprisonment or 
 bankruptcy, 33. 
 
 each partner may sell his interest without the consent of his co-partners, 
 and co-partner may buy the other's interest at public or private sale, 33. 
 
 cannot use partnership funds to buy, 33. 
 
 mining partnership cannot have any choice of membership, 33. 
 
 one partner cannot bind another by borrowing money, or giving notes, 
 etc., 33. 
 
 partners engaged in the production of oil and gas, a mining partner- 
 ship, 34, 35. 
 
 same rules apply as in ordinary mining partnerships, 34. 
 
 one partner cannot borrow money, make notes or pledge the credit of the 
 partnership, 35. 
 
 subscribing a certain amount by a number of persons to sink a gas well 
 will not create a partnership, 30, 36. 
 
450 Index. 
 
 PARTNERSHIP Continued 
 
 major owners control policy of partnership, 36. 
 
 major owners may incur necessary expenses, put on repairs, but cannot 
 
 direct property to other uses, 36. 
 partner must be compensated for wrongful diversion of partnership 
 
 property or its funds, 37. 
 lien of partners on partnership property, not affected by recording laws, 
 
 or by pledge or sale or mortgage of partner's interest, or by payment 
 
 of the debt by an interested partner, 37, 38 
 lien is lost where there is a sale and division or the product is divided as 
 
 produced or by agreement but not by wrongful exclusion of partner, 
 
 38, 39. 
 dissolved by sale of the whole property suits thereafter for breach of 
 
 contract arising out of the sale must be by each individual, 39. 
 may be dissolved for discord or dissention among the partners, 39. 
 receiver to wind up, 39. 
 accounting or dissolution, 40. 
 
 PENNSYLVANIA LEASE 
 
 form of lease, 193, 194, 195. 
 
 interest conveyed, 195. 
 
 when forfeited, 195, 196. 
 
 who may take advantage of forfeiture clause, 196. 
 
 forfeiture of lease by lessee for draining lands through wells on adjoining 
 
 lands, 197. 
 abandonment for failure to operate, 197. 
 
 PERSONAL PROPERTY 
 
 when oil and gas become personal property, 24. 
 
 when oil or gas is wrongfully severed owner may recover them by per- 
 sonal action, 94. 
 
 when oil and gas become commercial commodities, 24. 
 
 statute prohibiting exportation of natural gas void because gas when con- 
 verted into personal property becomes a commercial commodity, 25. 
 
 statute prohibiting transportation out of the state not a valid police regu- 
 lation, 25, 26. 
 
 what is a valid police regulation of transportation of natural gas, 26. 
 
 right to regulate pressure, 26. 
 
 PROXIMATE CAUSE 
 of injuries, 330-336. 
 what is, 330. 
 
 contributory negligence and proximate cause, 330, 331. 
 leaving a key in the key hole after turning off the gas is the proximate 
 
 cause of an injury though a third person turned on the gas, 331, 333, 333. 
 escaping gas which forces other gases out of a sewer and an injury is 
 
 caused by the latter is the, 333. 
 
 the proximate cause of an injury to a son is an explosion caused by apply- 
 ing a match to a leak though the father caused the leak, 333. 
 failure to confine gas is the proximate cause of an injury though a third 
 
 person may have set the gas on fire, 333, 344, 345. 
 failure to put stop cocks outside a building so that gas may be shut off in 
 
 case of danger is the, 334, 335. 
 but to cover up such stop cocks is not the, 334. 
 or the absence of a valve in a tank where the servants of another brought 
 
 the tank close to a fire, 374. 
 the absence of a valve in an oil tank may be the proximate cause, 361, 362, 
 
 363, 383 384. 
 the escape of oil and not the sewer which conducts it to a place it would 
 
 not reach is the proximate cause of an injury, 363, 364. 
 
Index. 451 
 
 PROXIMATE CAUSE Continued 
 
 a defective pipe is not the proximate cause of the injury where a servant 
 experiments to remedy the defect and is injured by reason of the ex- 
 periment, 333, 334. 
 
 the bursting of an oil pipe caused by burning oil which had escaped is not 
 the, 335. 
 
 or the explosion of oil on a right of way where a person entered voluntar- 
 ily upon the right of way without permission, 3o5. 
 
 or the escape of oil set on fire by a third person, 335, 336. 
 
 or the escape of gas set on fire by the owner of a building, 335. 
 
 or the high pressure of gas when a stove is defective, 310. 
 
 when the sale of gasoline is the proximate cause of an injury to a servant 
 of the purchaser, 349, 350. 
 
 proximate cause of a loss in connection with insurance, 415, 416, 417. 
 
 PUBLIC LANDS 
 
 oil and gas rights in 227-242. 
 
 when title to minerals pass to a purchaser, 237, 232. 
 
 location of oil and gas claims in 232, 237. 
 
 the three essential requirements for a solid location, discovery, making ot 
 
 bounderies, records, 232. 
 who may locate a claim, 233. 
 discovery of oil when made, 234, 235. 
 conflicting claims, 234, 235 236. 
 
 jurisdiction of courts of equity as to settlement of conflicting claims, 
 234-237. 
 
 RATES AND SUPPLY 
 
 Of gas, 243 to 29^. 
 
 city may own gas plants and supply gas both to the city and its people, 
 
 243, 244. 
 
 a city may levy tax to construct gas plants or buy gas wells, 243, 244. 
 to do so power must be granted to city by the legislature, 244. 
 when such a power is implied, 244, 245. 
 
 city may contract with other parties to supply the city, 245. 
 condition in such contract to supply public places free, 245. 
 or to supply the city free, 245. 
 
 a city may be liable on an implied contract to pay for gas, 246. 
 or may pay an additional sum for each lamp if taxes are imposed on the 
 
 property of the gas company, 246. 
 the price to be paid h>>w determined when based on .rates charged in 
 
 other cities, 246, 247. 
 
 when a city is not required to take any gas from a gas company, 247. 
 when required to take gas, 247. 
 
 when the amount provided for in the ordinance is not furnished, 247, 248. 
 period for which the contract to furnish maybe made, 248. 
 void when contract extends beyond the period fixed by statute, 248, 
 when a sale or lease of a franchise to furnish gas will not be allowed, 348, 
 
 249, 250. 
 
 when a city may sell or lease its gas plant or wells, 250, 251. 
 or when assign its right to furnish gas to a third person, 250. 
 or when stipulate not to engage in the business of furnishing gas, 251 . 
 a gas company may sell or lease or mortgage its franchise when allowed 
 
 by statute to do so, 251. 
 when a purchaser acquires all the rights of the company which sold, 
 
 leased or assigned its franchise, 251, 289, 290, 291. 
 gas trustees operating plants owned by a city, 251, 252, 253. 
 no power to pledge the credit of the city, 252. 
 may use or pledge the funds realized from the sale of gas, 252. 
 no power to employ one of their own members during the term of office, 352. 
 
452 Index. 
 
 RATES AND SUPPLY Continued 
 
 cannot be interested in contracts with the city, 252. 
 
 aldermen interested in a gas plant cannot make a "binding contract to 
 
 furnish light for the city, 252, 253. 
 tout when the contract is void a city must pay what the gas consumed was 
 
 vorth,252, 253. 
 when a contract to furnish lights creates a municipal indebtedness for 
 
 the whole period, 253. 
 when such a contract creates an indebtedness only for the period covered 
 
 by each payment for gas consumed during that period, 253, 254. 
 corporations have no right to exercise a right to use the streets or furnish 
 
 gas to the public after its charter power expires, 254, 255. 
 strict construction of grants from state, 254, 255. 
 duty of gas companies to furnish gas to the public, 255, 256, 257. 
 mandamus will lie to compel a gas company to furnish gas to applicants, 
 
 255, 256, 257. 
 gas companies may require a customer to subscribe to reasonable rules 
 
 before he is entitled to be supplied, 255, 256, 257, 261, 262, 263, 264, i65. 
 gas companies liable for the death of persons for the want of fuel when 
 
 they undertook to supply the persons, 257, 558. 
 liable for failure to supply factories when contract to supply was made, 
 
 258, 259. 
 
 and when application was made for domestic use, 259. 
 gas company not liable for damages when the contract to supply was 
 
 void, 259. 
 
 or a city did not pay for the gas already consumed, 260 
 or when the consumer was supplied by another company and gas would 
 
 be used only in case of an accident in the plant of the other company, 
 
 260. 
 
 when a contract to supply is not void for indefiniteness, 260, 261. 
 where a court may limit the use, 261. 
 
 a rule that gas may be shut off for non-payment oT arrears is valid, 261. 
 or not paid by a certain time, 262, 263. 
 
 but in carrying tenants are not liable for the arrears of former occu- 
 pants and must be supplied, 261, 262. 
 or the gas was not paid at other premises, 262, 263. 
 or the gas was used in a wasteful manner, 262, 263. 
 a gas company may require a deposit to secure the payment of gas to the 
 
 consumers, 263. 
 
 but such must be required of all customers, 263, 264. 
 a natural gas company may reserve the right to shut off the supply of gas 
 
 in case the supply fails, 263. 
 
 the rules of gas companies must be reasonable, 264, 265. 
 what rules are unreasonable and void, 264, 265. 
 the consumer may compel the company to supply by mandamus where 
 
 the rules to which a customer must subscribe are unreasonable and 
 
 void, 265. 
 gas company will be enjoined from shutting off the supply of gas agreed 
 
 to be furnished, and where it is shut off it must be restored, 265, 266, 267. 
 a gas company may also enjoin a customer who no longer takes gas from 
 
 the company from interfering with its pipes, but a gas company can- 
 not compel a customer to take gas, 267. 
 small consumers cannot be compelled to pay more than large consumers 
 
 for the same amount of gas, 267, 268. 
 and cannot be charged meter rents, 267, 268. 
 over charges may be recovered back, 270, 271. 
 
 no discrimination can be made in favor of certain customers, 244, 273, 274. 
 or in the price because the gas was worth more for light than fuel pur- 
 poses, 274, 275, 288, 289. 
 
Index. 453 
 
 RATES AND SUPPLY Co ntinued 
 
 but when a high grade illuminating gas was furnished and it was used for 
 fuel the value of the gas as an illuminant may be recovered although 
 an ordinance required the company to furnish both, 289, 290, 291. 
 
 gas companies are quasi public corporations, 972. 
 
 and must serve the public on request, 272, 273. 
 
 and the business is subject to legislative control, 275, 276. 
 
 the state may fix the rates, 275. 
 
 and may delegate the right to fix the rates to cities and towns, 276, 277, 278, 
 279, 283, 284, 285. 
 
 but a few courts have held otherwise when the city is a consumer, 276, 277. 
 
 the rates fixed must be reasonable, 277, -378. 
 
 the rates must not make the property a burden on the owner, 277, 278. 
 
 or deprive the owner of all profit on the investment, 278. 
 
 or have the effect of depriving him of his property without due process of 
 law, 277, 278. 
 
 whether the rates are reasonable is a judicial question, 278. 
 
 statute must confer the right on cities and towns to fix the rates, 284, 285 
 
 elements to be considered in fixing rates, 285, 286. 
 
 when will such a power be implied, 285. 
 
 when is the right to fix the rates reserved in the law creating the corpora- 
 tion or in its charter, 278, 279, 280, 281, 282. 
 
 when does the law or charter give the corporations a right to make their 
 own rates, -^81. 
 
 meters placed on the premises of a consumer are not bailed, 268, 269. 
 
 and remain in the gas company's control, 268, 269, 270. 
 
 no person is entitled to place a governor on them without the consent of 
 the gas company, 268, 269. 
 
 mandatory injunction to compel the removal, 268, 26t>. 
 
 owner may place governors on his own pipes, 268, 269. 
 
 removal of meters for the non-payment of a service pipe put in by the gas 
 company, 269, 270. 
 
 contract when binding on subscribers for gas, 271, 272. 
 
 right to withdraw, 271, 272. 
 
 implied promise to pay for gas consumed, 271, 272. 
 
 REMAINDERS 
 
 right to oil and gas on place, 41-49. 
 
 oil and gas as part of the real estate, 41. 
 
 no right to oil and gas from wells open when the estate vests, 41, 42. 
 
 leasing of land for operations will be regarded as operated upon from 
 time of leasing, 42, 43. 
 
 when are wells considered open wells, 43, 44. 
 
 when life tenant may open mines in land held for mining purposes, 45. 
 
 remainderman's implied consent to open wells, 45, 46. 
 
 life tenant may prevent operations by remainderman, 45. 
 
 right of a court of equity to prevent a destruction of the estate in re- 
 mainder by wells bored on other lands, 48, 49. 
 
 right of the statutory life tenant to consume any part of the corpus of the 
 estate, 239, 240, 241, 242. 
 
 RESERVATION 
 
 of oil and gas from a grant, 220-242. 
 
 distinction between restriction and a reservation, 220, 225, 226. 
 implied reservation of oil and gas from a conveyance of the minerals,220,221. 
 when oil and gas are included in a reservation of the minerals, 221. 
 when oil and gas pass on a conveyance of a highway to the public, 222, 223. 
 when reserved to an abutting owner though the fee is in the public, 223, 224. 
 when owner may reserve the minerals in the dedication, 224, 225. 
 implied right to use the surface under a reservation or grant of the min- 
 erals, 226. 
 
 when the right is limited for the special purpose of taking the minerals, 226. 
 reservation of the minerals in grants from the state and United States, 
 227-232. 
 
454 Index. 
 
 RENTS AND ROYALTIES. 
 
 from land leased for the production of oil and gas, 201-219. 
 
 construction of oil and gas leases as to the payment of rent or royalties, 231. 
 
 leases construed more strictly against lessee, reasons therefor, 201, 202. 
 
 liability of lessee is founded on priority of contract and estate, 201, 202. 
 
 when is the lessee estopped to deny liability, 202, 203. 
 
 when money rent is due for failure to operate, 202, 303. 
 
 lessee cannot escape liability on his own default, 203, 204. 
 
 forfeiture clause is for the benefit of the lessor, 203, 204. 
 
 provision for a surrender of the lease will not release lessee until the lease 
 is surrendered, 204. 
 
 provision in a lease that the failure of the lessee to do certain things will 
 not release lessee from liability, 204, 205. 
 
 particular provision for release of lessee, 203, 204, 205. 
 
 when test wells must be bored, 205, 206. 
 
 number of wells to be put down, 206. 
 
 evidence of experts not competent to show no oil exists, 206. 
 
 lessee must sink the required number of wells to develop the land, although 
 the lease does not so provide, 206, 207. 
 
 forfeiture for failure to do so, 207. 
 
 operation by a third person acting under the lessor and with consent of 
 lessee will not release lessee from the payment of rent, 209. 
 
 "paying quantities" construed, 209, 210. 
 
 intention to surrender lease will not relieve from payment or default 
 before lease was surrendered, or failure to use the well, or notice of 
 an intention on the part of the lessor to declare a forfeiture, 209, 210, 211. 
 
 failure to use a well, or a declaration of forfeiture, or a destruction of a 
 well, or the wells cease to produce, or the well was located on the wrong 
 land, or the lessor had no right to make the lease, or where the lease 
 was a mere option, or did not use the well, and his liability depended 
 upon it being used, will relieve from payment, 205, 207, 209, 210, 211, 212. 
 
 assignee is liable on the ground of privity of estate, 212, 214, 215. 
 
 assumption to perform the covenants will create a personal liability and 
 will make assignee liable for past and future defaults, 312, 214. 
 
 when only privity of estate exists, assignee is not liable for past defaults 
 before assignment or for future defaults after assignment, 213. 
 
 liable for covenants broken while privity of estate existed, 213. 
 
 assignee is liable to lessee when assignee acquired the lease subject to 
 rents reserved and lessee paid such rent, 215. 
 
 an assignee of the lease from the lessor may recover damages and rents 
 accrued or to accrue from lessee or his assignee, 216. 
 
 royalties due life tenant on lease made before conveyance of the re- 
 mainder, 216. 
 
 division of royalties between devisees, 216, 217. 
 
 royalties due widow, 217. 
 
 payment to tenants in common, 217. 
 
 REAL, PROPERTY 
 
 petroleum considered as real property, 8, 9. 
 
 natural gas considered as real property, 9, 10. 
 
 petroleum and natural gas held to be part of the land when a disposition 
 
 is made of them, 8, 9, 10. 
 how the estate in petroleum and natural gas differ from other estates in 
 
 land, 10. 
 no estate is vested until actually reduced into possession by being brought 
 
 to the surface and confined in pipes and tanks, 10, 11. 
 estate in petroleum and natural gas compared to animals firce naturae, and 
 
 why, 11, 18. 
 
 no absolute estate or title in petroleum and natural gas and why, 12. 
 claim to oil and natural gas distinguished from claim to animals flranatvrce, 
 
 12, 13. 
 
Index. 455 
 
 REAL PROPERTY- Continued 
 
 right of the state to absolutely prohibit the taking ot game, 12, 13. 
 
 a land owner has an absolute right to drill for oil and gas state cannot 
 deprive him of the right, 13. 
 
 state may regulate the mode and manner of taking or acquiring oil and 
 natural gas, 14. 
 
 state may prohibit owner from committing acts which amount to waste of 
 oil and gas, 14. 
 
 statute prohibiting waste does not deprive a person of liberty or happi- 
 ness, 14, 15. 
 
 due process of law is not denied a land owner by a statute prohibiting 
 waste, 15. 
 
 state may prohibit the taking of petroleum when it cannot be taken with- 
 out permitting gas to go to waste, 15. 
 
 state may prohibit the use of a gas pump to take gas from wells, 16. 
 
 statute prohibiting the waste of petroleum and natural gas does not de- 
 prive a land owner of any right which a free government is bound to 
 protect, 16 
 
 statute does not encroach upon natural rights, 16. 
 
 limit of the right of the state to pass such a statute, 16, 17. 
 
 state may prevent waste of oil and gas by injunction although the stat- 
 utes provide a penalty, 17. 
 
 continuous violation of a public statute is a nuisance, 17. 
 
 individuals within a particular oil or gas region may prevent waste by in- 
 junction, 18. 
 
 each owner's right to take oil and gas is somewhat in the nature of an es- 
 tate of tenants in common, 18. 
 
 the use of explosives to increase the flow of oil and gas wells may be pre- 
 vented by statute but such a right exists at common law, 18, 19, 2P, 
 
 use of a gas pump to take gas or oil from the earth within the terms of a 
 statute prohibiting waste but such a right exists at common law, 16, 19. 
 
 reasons why the right exists at common law, 19, 20. 
 
 the use of new appliances to take oil and gas will not amount to waste, 20. 
 
 right of an owner of a well to permit gas to flow from the mouth of the well 
 and go to waste when no statute prohibits, 20. 
 
 the drilling of a well must not be prompted by malicious motives, 20, 21. 
 
 right to take oil and gas from the earth as an incorporeal hereditament, 23. 
 
 right to take oil and gas an absolute property right. 
 
 grants and reservations of oil and natural gas create but a mere right to 
 produce oil and gas, 23. 
 
 SHOOTING WELLS 
 
 right to increase the flow of wells by, 18, 19. 
 
 injuries to third persons caused by shooting wells, 367, 368, 369. 
 
 injunction to prevent the shooting of a well, 369. 
 
 STREETS AND HIGHWAYS 
 
 judicial notice of the explosive nature of petroleum and gas, 102. 
 
 damages to trees and crops by gas escaping in street and highways, 102. 
 
 evidence required to fix the liability of the owner of gas for damages to 
 trees, 102, 103. 
 
 contributory negligence of persons injured by gas and petroleum which 
 escaped, 103. 
 
 what acts constitute contributory negligence, 103, 104. 
 
 when question of contributory negligence is for the jury, 104. 
 
 when the negligence of a servant is a bar to a recovery against a gas com- 
 pany, 104, 105. 
 
 consent of the city to lay pipes, 105. 
 
 side walk part of the street, 105, 106. 
 
 special acts giving gas companies a right to lay pipes, 105, 106, 107. 
 
 restoration of street to former condition by gas companies, liability for 
 
 failure to do so, 106, 107. 
 
456 Index. 
 
 STREETS AND HIGHWAYS -Continued 
 
 control of mains by a city, 107. 
 
 compulsory extension of gas mains, 107. 
 
 condition precedent to laying of pipes in streets, 108. 
 
 exclusive right in the streets, 108. 
 
 when right is not exclusive, 108, 109. 
 
 right of eminent domain an attribute of sovereignty, 84. 
 
 time and manner of taking in control of legislatures, 84. 
 
 use must be a public use but use is public when the people have a right 
 to demand services or use of the land taken, 84. 
 
 whether use is private or public a judicial question, 84, 85. 
 
 grant of the use of the street and highways to pipe line companies and gas 
 companies, 85. 
 
 pipe line tube highways, 85. 
 
 right to use streets and highways for pipe line a public franchise, 85. 
 
 conveyance of gas and petroleum through pipe is the transportation of 
 freight, 85. 
 
 legislature may limit the right of eminent domain to domestic corpora- 
 tions, 85, 86. 
 
 a right to supply the public must exist before a party can condemn a 
 right of way for a pipe line to convey gas, 86. 
 
 right to convey gas through the street a quasi public business, or is the ex- 
 ercise of a franchise granted by the state, 86. 
 
 service to be rendered is a public service, 86. 
 
 entry upon the streets is in the nature of a right of eminent domain, 86. 
 
 right of entry is a license or a contract, 86, 87. 
 
 to use the streets to supply the public with gas is a public use, 87. 
 
 an exclusive use creates a monopoly, 87. 
 
 an exclusive use granted is void where constitution or statute prohibits 
 monopolies, 87. 
 
 right to use street construed strictly in favor of the public, meaning of 
 construed strictly, 87. 
 
 right given to use street will include streets thereafter laid out, 87, 88. 
 
 ordinance silent as to the streets to be used give grantee the right to use 
 any and all streets, 88. 
 
 time by which the streets must be occupied, 88. 
 
 right of a city to change grade of a street, 88. 
 
 injury and removal of pipes on account of the change of the grade, 88. 
 
 use of streets and highways to convey gas not a primary use, 88. 
 
 pipe line companies and gas companies cannot complain because of the 
 disturbance of pipes or change of the street grade, 88, 89. 
 
 city may change established grade, 88, 89. 
 
 city liable for damages when pipes were injured on account of the incom- 
 petency of persons engaged to change the grade or build sewers, 89. 
 
 against whom the cost to relay the pipes may be charged, 89. 
 
 right of gas companies to take up pavement, 89. 
 
 gas companies cannot be prohibited from taking up pavement to make re- 
 piars or lay sewer pipes when no restriction was contained in the or- 
 dinance when passed or in other ordinances in force at the time, 89, 90. 
 
 right granted by ordinance to lay pipes a contract and cannot be impaired 
 without the consent of both parties, 90. 
 
 pipe lines on public highways, 90. 
 
 consent of abutting owner must be obtained, 93, 91. 
 
 to lay pipes without consent of the owner is a trespass, 91, 93 
 
 pipes laid on the surface of a highway an unlawful obstruction, 91. 
 
 owner not estopped though he made no objection when pipe was laid, 91. 
 
 consent of highway commissioners, when necessary, 91. 
 
 consent of commissioner gives no right to use highway unless owner 
 gives consent and is paid, 92. 
 
 same is true in streets when fee is in abutting owner, 92. 
 
Index. 457 
 
 STREETS AND HIGH WAYS- Continued 
 
 right of the owner to the land covered by a highway is absolute except the 
 
 easement which the public have in it to repair and travel over the 
 
 highway, 92. 
 
 other uses made of a highway is the taking of land, 93. 
 refusal of owner of the fee to grant a right to use a highway when consent 
 
 of commissioner is given and gas company commenced to furnish gas 
 
 to the public will not prevent the use of the highway, 93, 94. 
 rights of owner in such a case compensated in damages, 93, 94. 
 a grant of permission to use highways cannot be revoked, 94. 
 pipes on surface of highway is a nuisance, 94. 
 injuries to persons and property, 91, 95. 
 pipes in bed of streams, damaging to boats, 95, 96. 
 lamp-posts when nuisance, 96. 
 escape of gas on a public street duties and liabilities of gas companies, 
 
 96, 97. 
 
 injuries to person on the street, 97. 
 
 escape of gas to abutting premises from the street, 97, 9S. 
 escape of gas from street mains and pipes, 98. 
 percolation of gas through the soil to basement, 98. 
 defect in the pipe originally put in, 98. 
 destruction of buildings and injuries to persons, 99. 
 escape of gas from street mains through sewers to buildings, 100. 
 when negligence to use a lighted taper to determine the presence of gas, 100. 
 negligence of a city employees and servants, luO. 
 pipes injured by third persons, 100, 101. 
 when gas companies are not relieved from liability because pipes were 
 
 broken by third persons, 101. 
 
 liability of a city for defective pipes and appliances of gas companies, 101. 
 liability of gas company to city for damages paid by it, 101. 
 judgment against city or gas company conclusive against the wrongdoer 
 
 when opportunity to defend was given, Ml. 
 
 judicial notice of the explosive nature of petroleum and gas, 102. 
 damages to trees and crops by gas escaping on street and highways, 102. 
 evidence required to fix the liability of the owner of gas for damages to 
 
 trees, 102, 103. 
 contributory negligence of persons injured by gas and petroleum which 
 
 escaped, 103. 
 
 what acts constitute contributory negligence, 103, 104. 
 when question of contributory negligence is for the jury, 104. 
 when the negligence of a servant is a bar to a recovery against a gas com- 
 pany, 104, 105. 
 
 consent of the city to lay pipes, 105. 
 sidewalk part of the street, 105, 106. 
 
 special acts giving gas companies a right to lay pipes, 105, 106, 107, 
 restoration of street to former condition by gas companies, liability for 
 
 failure to do so, 106, 108. 
 control of main by a city, 107. 
 compulsory extension of gas mains, 107. 
 condition precedent to laying of pipes in streets, 108. 
 exclusive right in the streets, 108. 
 when right is not exclusive, 108, 109. 
 
 TAXATION 
 
 minerals as land, 75. 
 
 classification of land for taxation one may own the surface, another the 
 
 buildings, and another the minerals, etc., 75. 
 reservation of oil and gas taxable as land and other minerals taxable as 
 
 land, 75, 76. 
 sale of oil and gras right by which the purchaser acquires a base fee is 
 
 taxable as land, 76, 77. 
 
458 Index. 
 
 TAXATION Continued 
 
 pipe line when taxable as land, 77. 
 
 right to produce oil and gas not taxable as personal property, where the 
 
 estate remains in the lessor until oil or gas is found, 77, 78. 
 taxes cannot be levied on oil or gas a lessee might produce in the future,77. 
 gas mains and pipe lines, when taxable as real estate, 79, 80. 
 gas mains and pipe lines and other appliances, when taxable as personal 
 
 property, 78, 79. 
 gas mains and pipe lines, when taxable as appurtenances to the main 
 
 plant, 80. 
 when wells, mains, pipes and other appliances are taxed as part of the 
 
 franchise of a corporation, 80, 81, 82. 
 exemption of cities from taxation where the city owns and controls gas 
 
 plants and sells fuel and illuminating gas to private consumers, 82, 83. 
 tax on the product of a pipe line passing through different states, how 
 
 fixed, validity of the statute, 83. 
 
 TENANTS IN COMMON 
 
 common law doctrine of conveyance by co-tenants, 50. 
 
 one tenant cannot sell or lease or give a right to take oil or gas or other 
 minerals, 50. 
 
 lessee acting under a lease from one co-tenant a trespasser because the 
 tenant himself cannot take a part of all the minerals or give a third 
 person the right to do so, 50, 51. 
 
 each tenant has a right to possession, but right of action against a co-ten- 
 ant at common law unless wrongfully excluded, 51. 
 
 tenant wrongfully excluded may recover value of the oil taken by a co- 
 tenant without paying cost of production, 52. 
 
 co-tenant liable for the value of oil and gas taken without consent of other 
 co-tenants, 55. 
 
 no community of interests between tenants in common so one may pur- 
 chase of the other, or take a mortgage and not be bound to disclose 
 the value of the land, 62. 
 
 no co-tenancy exists between the owner of surface and the owner of a sub- 
 stratum, 52, 53. 
 
 one co-tenant may bind the other for necessary work, or expenses of op- 
 eration to prevent the forfeiture of the lease, 53, 54. 
 
 not bound for price of labor in pumping a well when co-tenant offered to 
 do the work, 53. 
 
 co-tenant may accept surrender of lease, 53. 
 
 not liable as partners, 53, 54. 
 
 case, trover, replevin and quare clausen will lie, 55, 58, 59, 60, 61. 
 
 measure of damages for minerals taken by a co-tenant, 55, 56, 57, 58, 59, 60, 61 . 
 
 injunction to prevent co-tenant from taking minerals, 56. 
 
 partition between co-tenants see Partition. 
 TENANTS FOR LIFE 
 
 cannot open new oil or gas wells because oil or gas is part of the realty 
 but may work open wells or mines and use reasonable estoners, 41. 
 
 what is an open well, 41. 
 
 lawful leasing for the production of oil or gas or other minerals consid - 
 ered as an open well or vein, 41, 42, 43. 
 
 entire possession in the life tenant and the reversioner and remainder - 
 man have no right to operate, 43, 45. 
 
 open wells or mines part of the profits, 43. 
 
 mine is open when vein is punctured, though discontinued before the vest- 
 ing of the estate, or when fuel was taken out, or when rents are to be 
 paid, or when life tenant is authorized to lease land, 43, 44. 
 
 land held for mining purposes may be operated upon by the life tenant,44. 
 
 land may be operated upon by consent of the life tenant and remainder- 
 men or their trustee, 45. 
 
Index. 459 
 
 TENANTS FOR -LIFE Continued 
 
 estoppel of life tenant to claim dower in open mines, 45. 
 
 open mines or wells may be worked to exhaustion by the life tenant, 45. 
 
 may use the estate as it came to him, 46. 
 
 life tenant cannot open new wells or lease the land for that purpose, or 
 consume any part of the corpus of the estate, 46. 
 
 wells opened by consent life tenant entitled to the income from the pro- 
 ceeds, 46. 
 
 wells bored by life tenant estoppel of the remaindermen, 47. 
 
 waste by life tenant, accounting, 47. 
 
 amount recovered for waste goes to the remaindermen at once, 47. 
 
 no allowance made for improvements in a court of law but otherwise in 
 equity, 48. 
 
 right of remaindermen to go into equity to protect the land from being 
 drained of oil and gas through wells on other lands, 48, 49. 
 
 right of the court to permit operation on the land or make a sale of the 
 property to prevent its destruction, 48, 49. 
 
 TENNESSEE LEASE 
 
 form of lease, 197, 198, 199. 
 
 removal of lease, 198, 199. 
 
 when notice must be given lessee before forfeiture is declared, 199. 
 
 when a lease is executory, 199. 
 
 conditions attached to leases, 199. 
 
 TEXAS LEASE 
 
 forfeiture clause for failure to operate, 200. 
 
 when work is commenced, 200. 
 
 what facts will establish the commencement of operations, 200. 
 
 TRANSPORTATION 
 
 of oil 370 to 395. 
 
 duty of a carrier to furnish a safe vehicle, 370. 
 
 duty continues only during the time of transportation, 373. 
 
 delivery and transportation of oil in the cars of a vendor of the oil as a 
 bailment of the car by the vendor of the oil to the vendee, 370 to 388. 
 
 example of such a bailment, to-wit, Goodlander Mill Co. vs. Standard Oil 
 Co., and the facts on which a suit was brought by a third person, 370, 
 371,372, 
 
 absence of a valve in the discharge pipe of the car bailed, 373. 
 
 car need be safe only so far as to encounter the usual risks of transpor- 
 tation, 373. 
 
 whether a car is safe which leaks while in the hands of the carrier, 373, 374. 
 
 shipment of crude petroleums in a tank car not like a secret shipment of 
 explosives, 373. 
 
 whether the public are benefited by knowing the contents of a leaking 
 tank car when the public have no control, over such a car, 373, 374. 
 
 abscence of a valve to control the flow of oil when not the proximate cause 
 of an injury, 374, 375. 
 
 continuing negligence when the car leaked before delivered to the con- 
 signee, 374, 375. 
 
 use of a discharge pipe as it was intended to be used, 375, 376. 
 
 liability of a bailor for defects in an article at the time the article was 
 bailed, 375, 376. 
 
 bailment of an article unsuitable for the purposes for which it was bailed, 
 377, 378, 379. 
 
 liability of a bailor of horses, carriages, and other appliances to the bailee 
 and third person, 379, 380. 
 
 application of the doctrine in such cases to the bailor of a defective oil 
 tank, 379, 380. 
 
460 Index. 
 
 TRANSPORTATION Continued 
 
 liability of the bailor of a defective vehicle used to transport goods to the 
 servants of the bailee, 381, 383. 
 
 duty of the bailor of a defective article to give notice of defects to the 
 bailee, 382, 383. 
 
 presumption of the presence of the valve in the tank car in question, 382. 
 
 concurrent negligence of the bailor and the servants of the bailee when 
 the injury is to the third person, 382, 383. 
 
 negligence of the consignee of a tank car of oil in bringing it in close 
 proximity to a fire as a new and efficient cause, 383, 381. 
 
 such a question a question of law for the court, 383, 384. 
 
 in a like case such a question was held to be a question of fact for the jury 
 to determine, 384, 385, 386. 
 
 a vendor may be liable to third person though title passed, 386, 387. 
 
 liability of a shipper of naphtha to a servant of the carrier when the ser- 
 vant is not informed of the danger of the article, 387, 388. 
 
 liable though the carrier knows that naphtha is shipped and the servant 
 does not, 387, 388. 
 
 contributory negligence of the servant, 388. 
 
 evidence of experts in such a case, 388. 
 
 injury to a passenger caused by an explosion of oil, 38?, 389, 390, 391. 
 
 when the relation exists, 390. 
 
 notice of danger to the passenger, 389. 
 
 duty of the passenger to avoid the danger, 389, 390. 
 
 contributory negligence of the passenger, 390. 
 
 passenger must exercise ordinary care, 390. 
 
 carrier bound to exercise only ordinary care for the safety of the passen- 
 gers, 390. 
 
 special finding of a jury in such a case, 390. 
 
 question of negligence in such a case for the jury, 391. 
 
 storage of oil at a railroad station contrary to a statute, 394. 
 
 proximate cause of an injury in such a case where a fire is started by a 
 third person, 394, 395. 
 
 storage contrary to a statute or an ordinance will make the violator of 
 the statute or ordinance liable without regard to the negligence of 
 others, 890. 
 
 injuries to a person who came on the right of way of a carrier and was in- 
 jured by an explosion of oil, 391, 392, 393. 
 
 negligence of the railroad company in such a case, 391, 392. 
 
 when the railroad company is not liable, 392, 393. 
 
 duty of the railroad company toward such persons, 392, 393. 
 
 negligence of a railroad company in delivering a defective car to an oil 
 
 , company to be loaded, 393, 394. 
 
 injury to the property of a third person in such a case, 393, 394. 
 
 servant of the oil company a servant of the railroad company in such case 
 where the property of a third person is destroyed, 393, 394. 
 
 WASTE 
 
 what amounts to, 241, 242. 
 
 to opening oil and gas by life tenant, 46, 47. 
 
 to lease land by life tenant for the production of oil and gas, 46. 
 
 when tenant in remainder is estopped from claiming acts of life tenant 
 are waste, 47. 
 
 by statutory life tenant, whether liable under the statute of Marlbridge 
 and Gloucester, 239, 240, 241, 242. 
 
 not waste to extract mineral from land valuable only for mining pur- 
 poses, 239, 240. 
 
 when a court of equity will not interfere to stay waste committed by the 
 owner of a base fee, 237, 238, 239. 
 
Index. 461 
 
 WASTE Continued 
 
 when future acts of waste by an owner of a base fee will be enjoined, 238, 
 
 229. 
 
 by a tenant in common, 50, 55, 56, 238. 
 of gas by a consumer, 260, 261, 262. 
 
 statute prohibiting waste of oil and gas by producers, 14, 15, 16, 17, 18. 
 by the owner of oil and gas where no statute prohibits, 20, 21. 
 
 WELLS 
 
 no right to bore wells for the purpose of injuring others, 21, 22. 
 
 abandoned, 22. 
 
 what acts amount to the commencement of a well under the terms of a 
 
 lease, 157, 158, 159. 
 on boundary lines, 17f\ 
 for protecting land from drainage, 169, 170. 
 when opened, 44-47, 50-60. 
 lien for sinking, 114, 115, 117, 126. 
 
 drilled to determine the productiveness of the land, 150, 151, S02. 
 test wells as a condition in a lease, 199. 
 
 WEST VIRGINIA LEASE 
 form, 185, 186, 187. 
 forfeiture, 187. 
 
 execution of second lease, 187. 
 sufficient declaration of forfeiture, 187, 188. 
 failure of second lessee to operate within the time specified in the lease 
 
 when first lessee proceeds to operate, 187, 188, 189. 
 interest conveyed to lessees, 189. 
 right of lessor to terminate lease, 188, 189, 190. 
 when title vests in lessee, 185-190. 
 when operations are commenced in compliance with the lease, 190. 
 
THIS BOOK IS DUE ON THE LAST DATE 
 STAMPED BELOW 
 
 AN INITIAL FINE OF 25 CENTS 
 
 ILL BE ASSESSED FOR FAILURE TO RETURN 
 ON THE DATE DUE. THE PENALTY 
 EASE TO SO CENTS ON THE FOURTH 
 .00 ON THE SEVENTH DAY