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the earth is a very different thing from obtaining crops from the surface of the ground. The oil only exists at a distance of hundreds of feet below the surface. If it is not developed by means of wells, it is the same as if it had no existence at all. It is in a state of nature, of no use or value whatever to the owner of the land. * * * Therefore it is no hardship whatever to them, to repay to the defendants the bare cost of the well and appliances which belong to the plaintiffs now, and the whole benefits of which accrue to them alone. *** The proposition that oil is part of the land, and cannot be regarded as mesne profits, and hence the right to compensation for valuable improvements, has no application. The oil has been taken. It is not a question of staying waste, but of allowance for the cost of valuable improvements actually necessary and made in good faith. For such improvements, compensation is allowed, whether that which is taken be mineral oil or other substance of the land or not:" Kille v. Ege (1876), 82 Pa. 102 and Ege v. Kille (1877), 84 Pa. 333, followed.

Liability for Negligence.

A natural gas company is not liable for injuries resulting from the negligence of an independent contractor, occurring before acceptance of his work; unless work is accepted which the company knew, or ought to have known, had been performed in an unsafe and dangerous manner: Chartiers Valley Gas Co. v. Waters (1888), 123 Pa. 220; Same v. Lynch (1888), 118 Id. 362. The tenth section of the Act of 1885 (supra, p. 102) was held, in these cases, to impose no duty, "no express or definite obligation" as regards what work should be done, or how: per HAND, J., 123 Pa. 230.

One taking gas from a natural gas company assumes only the usual and

ordinary risks of such use, but not extraordinary risks caused by the negligence of the company: Oil City Fuel Supply Co. v. Boundy (1888), 122 Pa. 449.

A gas company may not lay its pipe on the bottom of a navigable river, without incurring the risk of liability for accidents caused thereby; as where a boat ran on to such a pipe by accident, broke it, and the escaping gas caught fire from the boat's furnace and burned it up: Ormslaer v. Philadelphia Co. (1887), U.S. Dist. Ct., W. Dist. Pa., 31 Fed. Repr. 354.

Regulation by a Municipality.

[Under Sections Eleven and Thirteen of the Act of 1885 (supra, pp. 103, 104), City "Councils are authorized to give. or withhold their assent, without more. They have no right to couple their assent with any condition, or restriction, not imposed by the Act, unless the company agrees to accept the same, and be bound thereby; and even then the conditions, or restrictions, so accepted by the company, must harmonize and in nowise conflict with the provisions of the Act. *** In view of the limited authority delegated to Councils, it is a grave mistake to assume, as they appear to have done in this case, that they have power to legislate on any and everything connected directly, or indirectly, with the general subject:" STERRETI, J, Appeal of City of Pittsburgh (1886), 115

Pa. 4.

[The Councils of the City of Pittsburgh, under this authority, passed two ordinances, of August 10, 1885, and December 29, 1885, and the following sections were declared void, in the case cited above:

1. That the City Engineer should control the work of laying pipes, to the exclusion of the company.

2. That the pipes should be tested; because indefinite as to how, when, or by whom the test was to be made.

3. That a formal acceptance be made by the company of the ordinance, especially as to those provisions illegal and

void.

4. That the company should submit to the city"plans, methods, specifications, and estimates" for the acceptance or refusal of the Commissioner of Highways, with appeal to the Councils, whose action was to be final, when the statute provided for an appeal to the court. Also a provision requiring such plans, on any extension of the pipes.

5. That a showing be made, under oath, of the names of the stockholders, the amount of stock held by each, and that at least fifty per cent. had been paid up, of each subscription, in cash, or, if such is not the case, in what paid; and that no permit be issued unless such Commissioner of Highways is satisfied that there is enough paid up capital to complete the work in accordance with the plans submitted.

6. That a transfer of the privileges of the company to any other corporation be forbidden, under a penalty of a forfeiture of its privileges and all its property, without the assent in majority in value of its stockholders, and the approval of the Council.

7. That the company furnish, upon request of either branch of the Council's street committee, or by the Mayor, City Attorney and City Controller, or any two of them, with the City Controller, a sworn statement of its stockholders, that they hold stock in good faith for themselves and not for others, or, if held by trustees, the names of the persons for whom held, requiring the company to demand this information upon receiving for registry a transfer of the stock.

8. That the City be relieved from liability in case of any neglect of the corporation, resulting in damages to person or property.

9. That a consolidation be forbidden, in any way whatever, of the company

with any other company, when a statute expressly authorized a consolidation upon certain terms.

10. That the City Engineer, in case the company employ careless, incompetent or unskilful men, might discharge such men, and take charge of the work, and complete it, requiring the company to pay estimates in advance for two squares at a time, or the imposition of a forfeiture, in case of a neglect, or refusal, for fifteen days.

II. That the company furnish a bond, conditioned for a faithful compliance with the provisions of the ordinance, and to indemnify the City against all loss, costs, suits, damages and expenses arising from the company's occupation and use of the streets.

The following provisions were held valid:

1. Fixing the depth to which the pipes should be laid, and allowing the City Engineer to designate what portion of the street should be occupied.

2. Requiring the company, when asking the permit, to submit to the Commissioner of Highways a plan and full specifications, showing the streets proposed to be opened, the location, kind and size of pipes.

3. Requiring the "system" to be approved by the City Engineer and natural gas committee of Councils, of escape pipes sufficient to carry off any and all gas which may leak or escape; gauges showing the pressure, open at all times to inspection, at points designated by the City Engineer; and that suitable means be used to protect pipes laid, where there are cinders or other injurious material.

4. Requiring that no pipes be laid between November 15 and April 15. 5. Authorizing the Commissioner of Highways to refuse, in his discretion, permission, if in his judgment the location proposed upon any highway, is injurious to the City; to require altera

tions of the plans submitted; to limit the number of pipes upon any highway to two trunk lines of competing companies. 6. Requiring the company to pay the expense of repaving, or keeping in repair, for nine months, the streets opened for laying pipes, and that estimates for the cost thereof, for each section, not exceeding two squares, be furnished such Commissioner, and payment of the amount made to him, before permit issued for opening such squares: Appeal of City of Pittsburgh (1886), 115 Pa. 4. The Pennsylvania Act of 1885 (proviso to section 2. P. L., p. 31) forbids the granting, by any borough or city, to any natural gas company, the exclusive privilege to occupy the streets of such borough or city, and therefore a city cannot, under the guise of" regulations," confer an exclusive privilege on a company for two years, requiring work to be begun at a fixed time, and gas to be introduced within fifteen months thereafter: Meadville Fuel Gas Co. v. Meadille Natural Gas Co., decided in the Sup. Ct. Pa., May 31, 1886.

Where a company had a rightful entrance into a city, but the latter refused it the right to cross three streets, whereby great loss was sustained by the company in loss of gas, an injunction was granted to restrain the city's interference with crossing the streets, such a privilege having been granted to a rival company: People's Natural Gas Co. (1885), I Pa. C. C. 311.

An injunction to restrain a natural gas company from using the streets of a town, because of alleged insufficient protection to the inhabitants in the use of pipes, was refused; thereupon the town passed an ordinance regulating the matter, and asked leave to file a supplemental bill, setting up this ordinance. The Court refused to allow the bill to be filed: Appeal of Borough of Butier, decided in the Sup. Ct. of Pa., Nov. 11, 1886.

Unreasonable Rates.

A natural gas company, having the power to exercise the right of eminent domain, and to occupy the streets of a city or town, must serve all alike, and furnish gas at reasonable rates. This is especially so under a statute declaring that the transportation and supply of such gas is of public benefit, and preventing the granting, by a town or city, to any company, the exclusive privilege to occupy the streets and supply gas. Where a company, in a State where such a statute was in force, after furnishing gas at a reasonable price, with assurance of continuance, secured a monopoly by terms made with competing companies, demanded excessive rates and threatened to shut off the gas unless the increased rates were paid, a preliminary restraining order was granted upon bill and affidavit, until the question could be more thoroughly investigated: Waddington v. Allegheny Heating Co. (1888), 6 Pa. C. C. 96; Sewickley Borough v. Ohio Valley Gas Co. (1888), 6 Id. 99. See Appeal of Scranton Electric Light and Heat Co. (1888), 122 Pa. 154.

[See Gas and Water Companies, 27 AMER. LAW REG. 277.

Oil is a Mineral.

The Act of Pennsylvania (April 25, 1850, P. L. 573) relating to accounts between tenants in common of coal or iron ore mines or minerals, includes oil or petroleum, under the general term of "other minerals"; and the fact that oil was not known when the Act was passed (1850), does not alter the case: Thompson v. Noble (1870), 3 Pitts. (Pa.) 201. A "mineral, and being a mineral, is part of the realty:" Stoughton's Appeal (1879), 88 Pa. 198. But a reservation of "all minerals," in a deed,does not include petroleum: Dunham v. Kirkpatrick (1882), 101 Pa. 36. Ownership of Oil.

Scverance of oil from the freehold does not divest the owner of the title,

nor his right to the immediate possession, nor his replevying it, nor recovering its value if he sees fit. Oil in a well sunk by the owner of land is his exclusive property, whether drawn from an underground current of oil, or found standing. The case is not analogous to the surface owner's right in running streams of water. Such oil taken out of the well by a wrong-doer, remains the Iroperty of the well-owner: Hail v. Reed (1854), 15 B. Mon. (Ky.) 479.

Leases.

"Oil" is not synonymous with "gas": therefore a lease of land to be occupied and worked for petroleum, rock or carbon oil, and not for any other purpose whatsoever; conditioned that if no oil be found in paying quantities within four years, the lease to be null and void, is not satisfied by the finding of gas: Truby v. Palmer, decided in the Sup. Ct. of Pa., October 4, 1886.

Oil land, described by metes and bounds, with a "protection" of eight rods on the north side and ten rods on the east side, was leased to E. It was claimed that the north and east lines of the protection were not to be extended respectively beyond the east line and north lines of the leased property; and consequently the tract in the northeast corner, eight by ten rods, could be leased by the owner to T. for the purposes of sinking an oil well. The Court held that it could not; that the tract of eight by ten rods was within the "protection;" and having leased this tract, T., who sank a well, and thereby injured A.'s well on the leased premises, was liable to E. for damages, and would be enjoined in the same action: Allison & Evans' Appeal (1875), 77 Pa. 221.

B. leased to L. a tract of land, L. to have the sole right to bore for oil for twenty years, L. to commence operations in sixty days and to continue with due diligence; if L. ceased operations

twenty days at any one time, B. could resume possession. It was stipulated that L.'s failure to comply with any one of the conditions, should work a forfeiture, and B. might enter and dispose of the premises as if the lease had not been made. It was also stipulated that if L. did not commence work at the time specified, he should pay B. $30 a month until L. should commence. Held, that the covenant of forfeiture was modified, not abrogated, by the clause for pay. ment of rent; and L., having failed to to commence work for four months and then paying rent, was not entitled, at the end of eleven months from the date of payment, to tender the rent due and insist upon a continuation of the lease: Brown v. Vandergrift (1875), 80 Pa.

142.

A grant of certain land, in consideration of money paid, for the privilege of going upon it to prospect and bore for oil, with the exclusive use of one acre around each well, and with free ingress and egress in common with the grantor, the latter to have one-third of all "that is taken out" and the right of tillage of the land not occupied in operating the wells, does not amount to a lease nor sale of the land or oil, no estate in soil or oil being granted. The right of the grantee is to experiment for oil, sever it from the soil and take it, on yielding one third to the grantor. The right of the grantee is a mere license to work the land for oil, coupled with an interest, not revocable at the pleasure of the grantor or licensor: Funk v. Haldeman (1867), 53 Pa. 229.

A lease of land for oil required operations to be commenced within sixty days from the date of lease, one well to be completed within three months after such operations are begun; and, in case of a failure to complete one well within that time, the lessee was to pay the lessor for such delay $1000 per annum, within three months after the time of

completing such well. It was also covenanted that a failure to complete one well, or make such payment within that time, "renders this lease null and void, and to remain without effect between the parties thereto." The lessee did nothing towards drilling a well, nor did he make any payment within three months after a well should have been completed. It was held that a forfeiture of the lease did not happen until default was made, both in completing the well and in paying for the delay, or failure to complete it. But the lessee having neither drilled the first well nor paid the price of delay, the lessor was entitled to recover at the stipulated rate, for the time the lessee held exclusive right to operate: Galey v. Kellerman (1889), 123 Pa. 491.

An assignee of an oil-and-gas-lease is not liable to the lessor, upon a covenant of the lease to drill a well upon the demised premises, when the time for performance had elapsed before the assignee acquired title under the assignment: Washington Natural Gas Co. v. Johnson (1889), 123 Pa. 576.

B. leased A's farm for the purpose of exploring for oil, at a royalty of oneeighth of the production. He covenanted "To continue, with due diligence and without delay, to prosecute the business to success or abandonment; and if successful, to prosecute the same without interruption, for the common benefit of the parties." He assigned an interest in the lease to C. and D., and they with B. assigned to E. Two wells were bored, both of which were producing wells. E. refused to bore any other wells. A. sued E. upon the covenant quoted. It was held that this covenant was not the personal covenant of B., but a covenant running with the land, and binding on E.: and that the measure of damages was the amount of the oil A. ought to have received above the actual receipt, and the value of it

during the times when it should have been delivered to him; deducting therefrom the cost of producing, what ought to have been produced at the time, under the circumstances, and with the appliances then known; and adding to this remainder the interest on it from the time when the oil ought to have been produced to the time of the trial: Bradford Oil Co. v. Blair (1886), 113 Pa. 83.

A lessee under an oil lease, may not conduct the natural gas away from the land and appropriate it to his own use: Kitchen v. Smith (1882), 101 Pa. 452; contra, Wood County Petroleum Co. v. W. Va. Transportation Co. (1886), 28 W. Va. 210.

A grant of land "for the purpose of prospecting, boring, digging, drilling, pumping and otherwise searching for and obtaining oil, salt and other minerals thereon," reserving to the grantor one-fourth of all the oil produced, does not convey a fee, but only a right to work the land for oil, salt and other minerals; and the sub-grantees are bound by any conditions as to the control of the majority, that they may impose: Thompson's Appeal (1882), 101 Pa. 225.

But a lessee who has the possession of the land under an oil lease, has more than a mere license, and can recoup or recover taxes from the lessee under the Pennsylvania Act of April 3, 1804: Kitchen v. Smith (1882), 101 Pa. 452.

A lease was granted by the owner of land for the purpose of Loring salt-wells and manufacturing salt, so long as the salt-well contemplated in the lease, should be carried on by the lessee or his assigns, under certain provisions for a forfeiture, for a rent of every twelfth barrel of salt manufactured. After a time, oil rose with the salt-water, which, though first allowed to run to waste, was collected and sold. The owner of the land claimed the oil, and brought

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