navigable streams can be conveyed by the private owner,1 and a grant of the seashore, or river bank, in the absence of a reservation of the minerals would be construed to convey the minerals also.

§ 16. Nature of property in oil. The branch of the law that treats of the property in mineral oil and other mineral fluids is of great practical importance in view of the modern commercial value of such products. Like water, oil is so far a free, natural agent, that the right of property cannot be said to attach, except when the mineral is in place or when it has been confined for commercial uses. Oil in place, however, like other mineral, is a part of the land, with all the attributes of property of which the soil is capable." capable. A lease of an oil well for a term of years has been held to be an estate for years to the same extent as a lease of the land for a corresponding period,' and such a lessee is entitled to a notice in parti

1 Bates, 34 L. J. Ch. 406; Hamilton v. Graham, L. R. 2 S. C. and D. 166; Ramsey v. Blair, 1 App. Cas. 701.

2 Atty.-Gen. v. Hammer, 27 L. J. Ch. 837, where coal mines between high and low-water mark were held to be conveyed, although not expressly granted by the crown.

3 Braxon v. Bressler, 13 Mor. Min. Rep. 163; Brandt v. McKeener, 9 M. M. R. 216.

Idem. See, as to minerals between high and ordinary water mark, MacSwinney, p. 31.

5 Kier v. Peterson, 41 Pa. 361; Gill v. Weston, 110 Pa. 313. Dunham v. Kirkpatrick, 101 Pa. 43; 47 Am. Rep. 696.

But see

6 Gill v. Weston, 110 Pa. 313. A suit by a co-tenant for accounting must be brought in the county where the land lies. Thompson v. Noble, 3 Pitts. 201. An oil lease has been held partnership assets. Brown v. Beecher, 120 Pa. 590; Chamberlain v. Dow, 16 W. N. C. 532. Until oil or gas are reduced to possession, owner of surface acquires no property therein. Ohio Oil Co. v. Indiana (1900), 177 U. S. 190; Brown v. Spillman, 155 U. S. 669; Kelly v. Ohio Oil Co., 57 Ohio St. 317; Jones v. Forest Oil Co., 194 Pa. St. 379.

Duke v. Hague, 107 Pa. 57.

tion the same as the owner of the fee would be.1 The right of property in such mineral is so far dependent on the natural laws governing such fluids, however, as to make some peculiar legal distinctions in the rights of the owner of land containing oil, as compared with the rule of ownership in other minerals than fluids.2 Accordingly it has been held that a lessee is not liable for the appropriation of oil that came, according to natural laws, into a mine he was in the lawful possession of,3 for in such case the law of property would be so far governed by the natural law of the mineral as to limit the ownership of the oil to such cases where it was practically possible and when it would not interfere with other vested rights. But

1 Idem. The owner of an oil lease is entitled to have his property rights protected the same as the owner of the surface. Stoughton's App., 88 Pa. 198.

2 Kier v. Peterson, supra. As a result of the qualified ownership in oil and gas, resulting from the nature of the mineral itself, although the courts of Tenneseee hold that the title thereto may be distinct from the surface (Murray v. Allard, 43 S. W. Rep. 355), the weight of authority is perhaps to the effect that the title to oil and gas in place cannot be distinct from that to the surface. Funk v. Holdman, 53 Pa. St. 229; Brown v. Spillman, 155 U. S. 665; Barnhart v. Lockwood, 152 Pa. St. 82; 48 Cent. Law. Jour. 470, Art. Geo. S. Dix, where it is said: “He cannot deliver the possession or even the right of possession of the gas which to-day is under his land, because by the time the buyer reaches it, it may be gone. He cannot convey anything which he is not capable of delivering the possession, or the present or future right of possession of." And as aptly said by the Supreme Court of Indiana: "A grant of either water or oil is not a grant of the soil or of anything for which ejectment will lie." People's Gas Co. v. Tyner, 131 Ind. 277, cited and approved in Ohio Oil Co. v. Indiana, 177 U. S. 208. See, also, Detlor v. Holland, 57 Ohio St. 492; 40 L. R. A. 266; 49 N. E. Rep. 690. But see late case of Lawson v. Kirchner, where it is held that an oil or gas lease is a sale of an interest in the real estate, conditional upon the discovery and reduction of the mineral to the lessee's possession. 50 West Virginia, 344; 40 S. E. Rep. 344.

3 Kier v. Peterson, 41 Pa. 361. But see Dunham v. Kirkpatrick, 101 Pa. 43; 47 Am. Rep. 696.

See note to Williamson v. Jones, 25 L. R. A. 222 (West Va). A

were such lessee or adjoining landowner to use other than lawful means to appropriate the mineral oil from the land of the owner they would be liable, in an appropriate action, for the right of property attaches to the oil in place and the owner is as much entitled to protection of his property rights as the owner of other species of property.1

3

§ 17. Same-Natural gas. - The right of property in natural gas, is a distinctively American and practically recent branch of the law, equally as important as that pertaining to mineral oil, to which it bears such close resemblance.2 Natural gas is as much an article of commerce today as zinc, iron and other mineral products, but in the very nature of things this is so in a limited sense, for like oil and water, gas only becomes a commodity when the natural laws governing the mineral are overcome. Like petroleum, while in place, gas is a part of the realty, passing by a conveyance of the land or capable of a separate ownership; it is a part and parcel of the inheritance, while in place; will descend with the soil to heirs or reversioners, and its wrongful appropriation would authorize the owner of the remainder to an injunction.5 But, unlike other minerals, gas has the power and tendency of escaping without the will of the owner; in this respect it has been

grant of the coal in the land does not convey the oil or gas therein, but it passes with the surface. Chartiers' Block Coal Co. v. Mellon, 152 Pa. St. 286; Rend v. Oil Co., 48 Fed. Rep. 248.

1 Gill v. Weston, 110 Pa. 313; Thompson v. Noble, 3 Pitts. 201. In Indiana no title to oil or natural gas is acquired by the landowner, until the same is reduced to his possession. Ohio Oil Co. v Indiana, 177 U. S. 190.

* See note to Williamson v. Jones (W. Va.), 25 L. R. A. 222.

3 State v. Indiana Oil & Gas Co., 6 L. R. A. 579; s. c. 120 Ind. 575.

4 Williamson v. Jones, supra.

5 Williamson v. Jones, supra. This is the proposition established in this case.

likened to those animals ferae naturae,1 but it is more properly compared to the water, air and other natural elements, devoid of animal life, that are free by nature, but which may, when adapted to commercial uses, have the attribute of property. Accordingly it has been held that the property in gas only attaches so long as the mineral is in or on the land of an owner, but when it escapes and comes into the land of another the former's title is gone,3 and the landowner conducting mining operations is not liable to an adjoining landowner because of escaping gas, if the means used are lawful, and the owner of the gas would not be permitted to interrupt such mining to recover the gas, but otherwise if the gas is wrongly appropriated.5

It is an undis

§ 18. Minerals claimed adversely. puted principle in the law of real property, that mere possession of such property, after a certain length of time, will vest sufficient title in the person who has such possession as to enable him to hold the land as against all the world, except the true owner. There are different theories extant

1 Westmorland & Cambria Nat. Gas Co. v. DeWitt, 5 L. R. A. 731;

s. c. 130 Pa. 235; Brown v. Vandergriff, 80 Pa. 147; Ont. Nat. Gas Co. Gosfield, 18 Cent. App. 626.

v.

2 See Blackstone's Com. for classification of the property referred to and to which gas is most likened in the author's view.

3 Westmorland &c. v. De Witt, 5 L. R. A. 731; 130 Pa. 235; Brown v. Vandergriff, 80 Pa. 147. So it has been held a lessee of an oil well can appropriate gas coming into the well. Wood Co. Pet. Co. v. W. Va. Trans. Co., 28 W. Va. 210; 57 Am. Rep. 659; see also Truby v. Palmer, 4 Cent. Rep. 929; Palmer v. Allen, 26 W. N. C. 514.

4 People's Gas Co. v. Tyner, 31 Ind. 277; 16 L. R. A. 443; Hague v. Wheeler, 157 Pa. 324; 22 L. R. A. 141.

5 Williamson v. Jones, 25 L. R. A. 222 and cases cited. For interesting article on nature of property in oil and gas, see 48 Cent. Law Jour. 470.

• Tiedeman on R. P., §§ 692-693; Washb. on R. P. 114; 2 Sharsw. Bla. Com. 196 and note.

as to the ultimate effect of the statute of limitations, but the above proposition is admitted by all authorities.2 The possession of the adverse claimant, however, in order to vest in him a title to the land must be independent of the true owner,3 and as the title of the owner is supposed to carry with it the right of possession, in order to have his title prevail as against the real owner of the land, the adverse claimant must show, by competent evidence, the superiority of his claims. When minerals are claimed adversely, if the owner of the surface has a freehold estate in the land, the title to the minerals must be clearly established in the adverse claimant, and if the title to the minerals has never been severed from the title to the surface of the land, although the title to the minerals may be made out, in the absence of better evidence, by proof of acts of ownership and length of possession,' mere reputation of ownership is not sufficient to rebut the presumption of title to the minerals in favor of the owner of the surface, unless

8

1 Tiede. on R. P. § 717 and cases cited; Ang. on Lim., Secs. 1, 7; 3 Washb. on R. P. 146; Davenport v. Tyrel, 1 W. Bl. 975; McElmoyne v. Cohen, 13 Pet. 312; Townsend v. Jemison, 29 How. 407; Bulger v. Rock, 11 Pick. 36; Blair v. Smith, 16 Mo. 273; Moore v. Luce, 29 Pa. St. 202; Bliss C. P., § 356.

2 Ante, idem.

3 As to the requisites of an adverse possession see Tiede. on R. P. § 697 et sub.

4 Tiede. R. P., § 693; 2 Prest. Abst. 286, 290; 4 Kent's Com. 482; Barr v. Gratz, 4 Wheat. 213; Cadman v. Winslow, 10 Mass. 146; Brimner v. Long Wharf, 5 Pick. 131; Stevens v. Holliter, 18 Vt. 294; Smith v. Burtis, 6 Johns. 216; Whittington v. Wright, 9 Ga. 23.

5 Tiede. R. P., § 904 et sub.; Wait's Act. & Def. (Vol. 4), p. 422; Bainb. on Mines, p. 5; Stewart v. Chadwick, 8 Clarke (Iowa), 468; Coll. on Mines, p. 21, § 17; Curtis v. Daniel, 10 East, 273.

6 Ante, idem; Bainb. on Mines, p. 5; Desloge v. Pearce, 38 Mo. 588; Stewart v. Chadwick, 8 Clarke (Iowa), 468.

7 74 Law Lib.; Coll. on Mines, p. 21; Bainb. 28; Curtis v. Daniel, 10 East, 273; McGarrity v. Byington, 12 Cal, 427.

8 Barnes v. Mowson, 1 Maule & Sel. 77; Desloge v. Pearce, supra; Rogers v. Brenton, 10 Q. B. 26; Coll. on Mines, pp. 22-41.