gent as to be characterized as recklessness.1 The carelessness of the injured party in putting himself in the place of danger will not excuse the defendant from the consequences of his wrongful act, but he is not responsible for the injury inflicted, regardless of the culpableness of the injured party. But except in such an excessive case of negligence, the defendant can always set up contributory negligence on the part of the injured party, and if he was trespassing on the premises at the time of the injury, and there is negligence on his part, contributing to produce the injury, he will be barred of his remedy against the person causing the injury.3 1 Cooley on Torts, supra. "Lessors are not liable for the wrongful acts of the lessees of their mines not done by their authority or command." Little Schuylkill v. Richards, 57 Pa. St. 142. M. M. D. 203. 2 Robinson v. West. Pac. Ry. Co., 48 Cal. 409; Hearm v. So. Pac. &c. Co., 50 Id. 383; Johnson v. Canal &c. Co., 27 La. Ann. 53; New Haven &c. Co. v. Vanderbilt, 16 Conn. 420. 3 Tuff v. Worman, 5 C. B. (N. 8.) 573; Butterfield v. Forrester, 11 East, 60; Cooley on Torts, p. 812 and cases cited; Senior v. Ward, 1 Ex. E. 385. And see, as to liability of lessor for negligence of lessee, Offerman v. Storr, 2 Pa. St. 395. CHAPTER XII. OIL AND GAS LEASES. SECTION 162. Property in oil and gas Peculiarities of. 163. A distinct class from other minerals. 164. Distinguished from other leases. 165. How created — Form immaterial-Intent controls. 166. Lessee's interest in - When it attaches. 167. Character and duration of tenancy. 168. Lessee's quiet enjoyment - Eviction - What amounts to. 169. Implied covenants in-To drill wells 170. Same-Remedy for breach of. Location of. 171. Covenants amounting to conditions - Test wells. 172. Alternative provisions - Working or payment of fixed sum. 173. Same-Lessee must make election before term ends. 174. Same - Unlimited option in lessee, avoids lease. 175. Additional wells-Covenants for. 176. Rent and royalty - Peculiar covenants for. 177. Same-When lessor can recover. 178. Same-When right to ends. 179. Same-Implied covenants for. 180. Assignment of lease-Effect of. 181. Same-Liability of assignee for rent or royalty. 182. Same-Liability upon covenant to sink wells. 183. Injuries to well — Liability for. 184. Same — Drainage through adjoining wells. 185. Abandonment of lease. 186. Same-Lessee's right to casing and fixtures. 188. Same - For lessor's benefit solely. 189. Same-Relief against in equity. § 162. Property in oil and gas - Peculiarities of. So long as mineral oil and gas remain in the natural condition in which such minerals are found, in the earth or rock, they are regarded the same as other mineral in place; form a part of the corpus of the estate of a landowner, and would be included as within the meaning of the term "land." The property rights of a landowner to the 1 Oil and gas as found in the cavities of the rock are held to be placed mineral oil and gas in place in his land are recognized extent as the property by the courts to the same in the solid minerals in place, and where the title to the oil and gas has not been severed from the title to the land, the landowner would be entitled to the possession of such mineral, as an incident of his ownership, although it would require a penetration of the underlying minerals of another owner, in order to reach the oil or gas. But it is a peculiarity of the owner's title to oil and gas that it is only contingent, until a reduction of the mineral to possession. This dependency of the title upon the possession of the mineral is a necessary consequence from the natural compo upon the same foundation as other minerals and to be included within the term "lands." Wilson v. Hughes, 43 W. Va. 826; 39 L. R. A. 292; 28 S. E. Rep. 781; Brown v. Spillman, 155 U. S. 665. 1 Kelly v. Oil Co., 57 Ohio St. 317; 39 L. R. A. 765; 49 N. E. Rep. 399. Oil lands are subject to location, as "placer claims," under act Feb. 11, 1897; 29 Stat. at L. 526. See Mor. Min. Rts. (10 Ed.), p. 176. "Ever since the passage of the placer mining act, lands valuable for deposits of petroleum were considered as open to location and patent as placer claims and as such records were made followed by entries and patents as a matter of ordinary course. 4 L. D. 60; 284; 16 L. D. 117. And such action of the land office was followed by the courts in dealing with oil located or patented as placer ground without question of its regularity. Gird v. California Oil Co., 60 Fed. 532; Van Horn v. State, 40 Pac. 964. After this unbroken procedure of more than twenty years, the land office in 1896 (Union Oil Co., 23 L. D. 222), abruptly held that oil was not a mineral and oil lands therefore not subject to entry. This was immediately followed by an Act of Congress making such lands in terms patentable as placers. The ruling itself which induced the confusion was later reversed by the Secretary of the Interior. 25 L. D. 351. The judicial rulings that oil is a mineral have been uniform. Thompson v. Noble, 11 M. R. 137; Gill v. Weston, 110 Pa. St. 317 barring the anomalous case of Dunham v. Kirkpatrick, 101 Pa. St. 36." The title to all oil and other mineral in the Indian Territory is in the different tribes and leases for oil will not be prevented, when ratified by the Secretary of the Interior, for with such matters the secretary's act is ministerial and beyond the power of the courts. Cherokee Nation v. Hitchcock, U. S. Sup. Ct. Dec. 1, 1902. 2 The landowner's right to the oil or gas in place, can be enjoyed, even though it is necessary to drill through underlying stratii of coal, or other 2 sition of the mineral,1 for although the owner's title would prevail as against one wrongfully reducing such mineral to his possession upon the land of the owner, the latter could not enforce his title to such mineral until he had reduced it to possession. The title is transferred in the earth with the passing of the fluid or gas from the land of one landowner to another; the one who found and reduced the mineral to possession on his land, acquires the title free from all other claims, and while a part of the realty, while in place like other mineral, after severance from the soil, such oil and gas would then become personal property." The § 163. A distinct class from other minerals. same rules of law apply to oil and gas that pertain to other mineral, the title to which is in a third party, provided the property rights of such mineral owner are respected. Chartiers Block Coal Co. v. Mellon, 152 Pa. St. 286; 18 L. R. A. 702; 25 Atl. Rep. 237. 1 The title to natural gas or oil does not vest in the owner until it comes into his possession, for until actual possession is had of such property, no property rights could be enforced, from the very nature of the property. State v. Ohio Oil Co., 150 Ind. 21; 49 N. E. Rep. 809. "For an account of the first discovery of oil and of the mode in which obtained before the discovery of the method of getting it by boring wells in connection with the construction of a license or grant of oil rights made before such discovery, see French v. Brewer, 3 Wall. Jr. 346." M. M. D. 251. 2 State v. Ohio Oil Co., 150 Ind. 21; 49 N. E. Rep. 809. 3 Although oil and gas belong to the owner of land, when in place, they become the property of another landowner, whenever they pass under or upon his land, and the title of the former owner is gone. Brown v. Spillman, 155 U. S. 665. 4 Williamson v. Jones, 43 W. Va. 562. 5 While in the soil or rock, in place like other mineral, oil and gas are parts of the land, but after reduced to possession on the surface, they become personalty. Kelly v. Oil Co., 57 Ohio St. 317; 39 L. R. A. 765; 49 N. E. Rep. 399; Williamson v. Jones, 43 W. Va. 562. Before removal on the surface the rights of property may be lost by percolation or evaporation and the title would rest in the landowner who reduced such oil to his possession. Ante, idem. mineral substances, so far as the natural composition of the minerals will permit such application. Oil and gas are included within the general term "mineral" and a reservation of "the mineral," or "all the minerals" in a given tract of land, would be held to embrace, within the reservation, the mineral oil and gas found within the boundaries of the reserved tract.1 But oil and gas are not included as within the terms "other valuable minerals," when such terms are preceded by an enumeration or specification of certain solid minerals, different in form and substance from such fluids and gases, for under the rule ejusdem generis, the general words, preceded by the particular words, would be held to refer to minerals of the like kind and character only with those mentioned.2 And, likewise, where the particular minerals mentioned are "oil and gas," followed by the general terms, "and other mineral," the particular minerals specified would limit the general terms to fluids and gases only, and solid minerals would not be held to fall within the meaning of the terms used, for the reason that they belong to a separate and distinct class from mineral oil and gas.3 § 164. Distinguished from other leases. As previously observed, the landowner's title to oil and gas, on "Oil is a 1 Natural gas and petroleum oil are minerals and fall within a reservation in a deed, of "the minerals" in a given tract of land. Murray v. Allred, 100 Tenn. 100; 39 L. R. A. 249; 43 S. W. Rep. 355. mineral, and is included in the Act of 1850, relating to tenants in common, of minerals under the general enumeration of other minerals."" Thompson v. Noble, 3 Pgh. 201. M. M. D. 251. 2 Detler v. Holland, 57 Ohio St. 492; 40 L. R. A. 266; 49 N. E. Rep. 690. 3 Nor will a reservation of "oil and gas and other mineral," justify a reservation of the solid minerals. Moody v. Alexander, 145 Pa. St. 571; 23 Atl. Rep. 161. "Oil disclosed in a well sunk by the owner of the land, is his exclusive property; and the case is not analogous to the surface owner's right in running streams of water." Hail v. Reed, 15 B. Monroe (Ky.), 479. M. M. D. 251. |