of an oil or gas lease would not be liable for damages for the breach of a covenant to sink a well occurring subsequent to an assignment of the lease by such assignee, for the liability of the assignee upon the express or implied conditions of the lease would terminate with his transfer of the tenancy to another and he would not generally be liable for the neglect or default of his grantee, unless he had personally obligated himself so to be.1 § 183. Injuries to well-Liability for. For a willful or negligent injury to an oil or gas well, or a resulting injury to the machinery and appliances, or other property, connected with the mining operations, the wrong-doer or party causing such injury would be liable for the damage to the owner, to the same extent that he would for a like injury to other mining property. On account of the peculiar nature of the property, however, a given act might be considered actionable, as applied to an oil or gas well, which would not furnish a cause of action, in the case of other mining property, for the reason that an injury would result to the property in the one instance, while it would not, in the other. Accordingly, statutes have been passed in some of the States where oil and gas are found, in the United States, furnishing a specific remedy for certain injuries to this class of property." Under the Pennsylvania statute, for instance, one is required to plug an abandoned well, to prevent injury from fresh water, that would otherwise be absorbed by the oilbearing rock, and for a neglect to perform this statutory 1 The assignee of an oil lease is not liable for damages for the breach of a covenant to sink a well, where the breach occurs after an assignment of the lease by such assignee. Watt v. Equitable Gas Co., 29 Pitts. Leg. J. (N. s.) 221; 43 W. N. C. 215. 2 Davidson v. Torpedo Co., 188 Pa. St. 335; 41 Atl. Rep. 649. duty an action would lie on the part of the owner or lessee of the injured well.1 But in the absence of a breach of some statutory duty, or the violation of an obligation resulting from a contractual relation, the same rules of law would determine the liability of the party causing an injury to an oil or gas well that would apply to other mining property, and in the absence of any intentional or wrongful conduct or neglect, there would, generally, be no liability.2 § 184. Same-Drainage through adjoining wells. It has been held in Ohio that a landowner has a right to drill wells for oil and gas, upon his own land, notwithstanding they may result in the drainage of the land of an adjoining property owner, and that the latter would have no cause of action for the drainage, but his only remedy would be to drill wells upon his own land to prevent such drainage. In the absence of a design to injure the adjoining property owner, or some evidence of a willful wrong, or fraudulent intent, this would seem to be consistent with the prerogative of a landowner and the nature of the property in oil or gas. A lessee cannot be compelled to pay royalty for oil or gas which percolates, naturally, into a well upon an adjoining leasehold, which he is working in 3 1 A lessee who comes into possession of an oil lease is entitled to recover for his resulting injury from the failure of the preceding lessee to plug an abandoned well, as provided by the Pennsylvania statute, so as to prevent fresh water from being absorbed by the oil-bearing rock. Steelsmith v. Aiken, 14 Pa. Sup. Ct. 226. 2 A contractor is not liable for an injury to an oil well from the explosion of a squib shot, unless he was negligent in some way, in putting off such shot, or his contract created a liability therefor. Davidson v. Humes Torpedo Co., 188 Pa. St. 335; 41 Atl. Rep. 649. 3 A landowner has a right to drill wells on his own land and an adjoining owner has no right to damages, but must drill wells near the division line to prevent such drainage. Kelly v. Oil Co., 57 Ohio St. 317; 39 L. R. A. 765; 49 N. E. Rep. 399. good faith. But where a lessee intentionally drains the leased premises, through wells upon an adjoining tract, to avoid payment of the royalty, the lessor could recover royalty on all mineral so drained and wrongfully removed,2 and where two adjoining leaseholds are drained from one well, it is held, in Pennsylvania, that each lessor is entitled to such proportion of the royalty, on the entire amount of mineral produced, as the area of his land bears to that of the other lessor.3 If the only consider § 185. Abandonment of lease. ation moving to the lessor of an oil or gas lease, is the prospective royalty on the oil or gas to be discovered, a failure to prospect the land leased, for a reasonable period, will be held to constitute an abandonment of the lease." An abandonment will also result from a failure to proceed with test operations for oil or gas, within a reasonable time after a test well goes dry. And even though an oil lease 1 A lessor cannot compel an accounting from the lessee for royalty due on oil taken from leaseholds belonging to the lessee, adjoining that of the lessor, unless bad faith can be shown in drilling on the adjoining leaseholds, or fraud upon the lessor. Adams v. Stage, 18 Pa. Sup. Ct. 308. 2 Kleppner v. Lemmon, 176 Pa. St. 502; 35 Atl. Rep. 109. A lessee who refuses to sink a well upon the lease of his lessor, but sinks a well upon an adjoining lease and drains such lessor's land, is liable to such lessor for the royalty provided for in his lease on all oil taken from such adjoining well, until a forfeiture of the lease. Kleppner v. Lemmon, 197 Pa. St. 430; 47 Atl. Rep. 353. 3 Where a lessee drains two oil leases from one well, each lessor is entitled to such proportion of the royalty on the entire amount of oil produced as the area of his land bears to the land of the other lessor. Kleppner v. Lemmon, 198 Pa. St. 581; 48 Atl. Rep. 483. 4 Federal Oil Co. v. West. Oil Co., 112 Fed. Rep. 373; Foster v. Elk Fork Oil Co., 90 Fed. Rep. 178; Ray v. West. Pa. Nat. Gas Co., 138 Pa. 576; Crawford v. Ritchey, 43 W. Va. 252; Stage v. Boyer, 183 Pa. St. 560; 38 Atl. Rep. 1035. Aye v. Philadelphia Co., 193 Pa. St. 451; 44 Atl. Rep. 555. provides that it shall continue as long as paying mineral is found, where no oil is discovered and the lessees remove their machinery, they will not be permitted to claim the tenancy, years afterwards, on the discovery of valuable oil deposits, by a second lessee, but will be held to have abandoned their lease.1 But where a lease provides for the boring of two wells, the mere fact that the lessee pulled the casing, removed the rig and plugged the first well, after using it for two years, would not authorize the lessor to enter and take possession of the leased premises and claim an abandonment of the lease. And it is always a question of fact, where the matter is in issue in a controversy, as to whether certain acts do or do not constitute a working, sufficient to prevent an abandonment of an oil or gas lease, and the court should submit such issue to the triers of the facts and should not, as a matter of law, hold that any given acts will or will not constitute a working, sufficient to establish, or prevent an abandonment.3 § 186. Same Lessee's right to casing and fixtures. All the tubing, casing, drive-pipe, rig and machinery, used by the lessee of an oil or gas lease, can be removed by him, on abandonment of the lease, as such appliances are held, by the courts, to be mere trade fixtures, which do 1 Calhoon v. Neely, 201 Pa. St. 97; 50 Atl. Rep. 967; Crawford v. Ritchey, 43 W. Va. 252; Venture Oil Co. v. Frets, 152 Pa. St. 451; Wagner v. Mallory, 58 N. Y. Supp. 526. 2 Ahrns v. Chartiers Valley Gas Co., 188 Pa. 249; 41 Atl. Rep. 739. 3 Forney v. Ward (Texas, 1901), 62 S. W. Rep. 108. "The law recognizes a distinction between the abandonment of operations under an oil lease and an intention to abandon or surrender the lease itself; and, unless bound by the terms of the lease so to do, it will not permit the lessee to hold the lease without operating under it, and thereby prevent the lessor from operating on the land or leasing it to others." Parish Fork Oil Co. v. Bridgewater Gas Co., 42 S. E. Rep. 655 (W. Va. 1902). 4 Siler v. Globe &c. Co., 21 Ohio Cir. Ct. Rep. 284. not become a part of the real estate, by virtue of their use and annexation to the land, for the purposes of the lease. Nor would a recovery by the lessor, in ejectment, entitle him to such fixtures, brought upon the premises by the lessee.1 And even an agreement by the lessee that he would leave such fixtures upon the premises, if paying oil or gas was not discovered, would not defeat his title, where no mineral at all was found, as the agreement would be construed as contemplating a discovery of mineral, but not in paying quantity, as a condition precedent to the transfer of the title to such fixtures. But where there was a stipulation in the lease that the lessor was to have the right to purchase the casing and fixtures of the lessee, at a certain price, on failure of the well to produce paying oil or gas, on failure to get a marketable quality of oil, the lessor would be held entitled to pay the amount agreed upon for the fixtures and the title to the well would then vest in him, along with the fixtures. And in the absence of such agreement, while the lessee would be held to have the right to remove the fixtures, he would be required to exercise the right within a reasonable time after the termination of the tenancy, and where the right was not attempted to be asserted until several years after the expiration of the lease, he was held to have lost his right to the fixtures by reason of the delay. 1 Sattler v. Opperman, 14 Pa. Sup. Ct. 32; 30 Pitts. Leg. J. 205. 2 Evans v. Consumers Gas Co. (Ind.), 29 N. E. Rep. 398. See Chapter, Abandonment. 3 Smith v. Hickman, 14 Pa. Sup. Ct. 46. The law will not permit a removal of fixtures by a lessee, where the removal would amount to a violation of another of his covenants, as where he agrees to leave the well so that oil can be used therefrom, the pipe could not be taken away. Ohio Oil Co. v. Griest, 65 N. E. Rep. 534. The right to remove fixtures erected under an oil and gas lease must be exercised in a reasonable time after termination of the tenancy, and where the lessee attempted to remove same, four years after the |