trover for it. It was held that trover would not lie, although the oil was his, for he had not the right of possession at the time of conversion by the lessee, either of the oil itself or of the land from which it flowed; but the proper remedy was a bill in equity for an account, the measure of damage being the value of the oil at the instant of separation from the freehold. It was shown that the lessee could not raise the salt-water without raising the oil with it: Kier v. Peterson (1862), 41 Pa. 357. A reservation, "expressly reserving one-eighth of the oil produced from the land, to be divided between " the lessor and lessee" on the land," means oneeighth of the oil raised to the surface by the grantee, and that the grantor is entitled to his share without deduction for the expense in producing it: Union Oil Company's Appeal (1883), 3 Penny. (Pa.) 504. An agreement to lease land for a term of years, with the exclusive right to bore for and collect oil, giving onefourth to the lessor, passes a corporeal interest; and the lessee's taking of his share of the oil found is not waste, but a rightful act, unless the lease be forfeited by its own terms: Chicago, etc., Oil and Mining Co. v. U. S. Petroleum Co. (1868) 57 Pa. 83. An agreement was made, giving a license to mine on land for oil, and a lease for ten years in case of a successful discovery. The lessor lost all rights thereunder by lapse of time, not having discovered oil within the time limited by the contract. The lessor then agreed to refrain from declaring a forfeiture, if the lessee would carry on the search for petroleum constantly and without cessation. It was held that the latter agreement was conditional; that its condition was suspension; and that when the lessee ceased to carry on search for oil, the lessor was entitled to declare the forfeiture of the contract by suit, and claim possession of the lands without a formal putting in default. The Court declined to decide whether sulphur was a "similar product," under a contract based particularly upon the expectation of finding petroleum: Escoubos v. Louisiana Petroleum and Coal Oil Co. (1870), 22 La. An. 280. A lease, purporting to be a grant or license to take oil, drawn by an ignorant scrivener, at a time when the nature or value of the mineral was not known, should be construed with reference to the subject-matter, and the knowledge of such subject-matter at the time; and as to its inartificial use of technical language, the whole scope of the paper is to be considered: French v. Brewer (1861), U. S. Circ. Ct., W. Dist., Pa., 3 Wall. Jr. 346. A lease, dated May 19, 1881, gave "the right to take, bore and mine for and gather all oil or gases found in and upon the premises, to have and to hold the same for the term of twelve years from this date, or as long as oil is found in paying quantities," the lessor to receive one eighth of the oil produced and saved from the premises. The lessee covenanted "to commence operations for said mining purposes, and prosecute the same on some portion of the above described premises within two years from this date, or thereafter pay to the lessor [blank] dollars per [blank] until work is commenced. This lease shall be null and void, and at an end, unless the lessee shall, within six months from this date, commence and prosecute, with due diligence, unavoidable accidents excepted, the sinking and boring of one well on or in the vicinity of this lease, to a depth of 1200 feet, unless oil in paying quantities is sooner found. *** If the lessee fail to keep and perform the covenants and agreements by him to be kept and performed, then this lease shall be null and void, and surrendered to the lessor." Within six months from the date of the lease, the lessee drilled a well 1200 feet deep finding natural gas at a depth of 1045 feet in large quantities, and some oil, but not in paying quantities, at 1093 feet. The lessee used the gas for fuel in drilling the well, but not in any other manner. In the fall of 1882, the lessee removed his engine, etc., leaving the casing in the well, and ceased to carry on mining operations. In February, 1884, the lessor released the premises to T., who assigned such lease to the defendant company, for the same purpose, pursuant to which they entered into possession of the same and collected and sold the gas. The lessee in the first lease brought an action to restrain the lessee, and his assignee, in the second lease, and their common lessor from interfering with, or appropriating to their own use, the gas therein. It was held that there was no covenant in the lease which required the first lessee to continue the boring of oil wells upon the premises until oil was obtained in paying quantities, under a penalty of forfeiting his rights by a failure so to do; that the covenant requiring him to commence and prosecute operations for mining purposes within two years from the date of the lease, or thereafter pay to the lessor [blank] dollars per [blank] until work was commenced, was void for uncertainty, by reason of the blanks which were left in the vital and essential parts thereof; that if a clause, that the lessor was to have one-eighth of the gas, had been, omitted by mistake, the contract could be re-formed and the clause inserted, so as to express the intention of the parties; that if it now expressed their intention, they must abide by it; that the claim (that the first lease had expired by reason of its own terms, as the provision VOL. XXXVIII.—7 that the lessee should "have and hold the same for the term of twelve years from this date, or so long as oil is found in paying quantities," limited the terms to that period, during which oil was found in paying quantities) was not well founded, and that the term fixed was for twelve years, and as much longer as oil was found in paying quantities: Eaton v. Wilcox (1886), 42 Hun (N. Y.) 61. A. leased land to B., with an oil well partly bored thereon. B. agreed to sink this well deeper, and to pay A. a royalty of one-fourth of all oil obtained from it. Both parties supposed the well was situated on the leased premises; but it was afterwards discovered that such was not the case. Then B. offered to deliver possession of the premises leased, and refused to pay the royalty. It was held that a court of equity, on a bill to account, would not order an account; the action should have been brought at law. B. was not in a position to deny A.'s right to the royalty, and if an accounting was allowed, it would not be a bar to an action at law for the royalty: Mays v. Dwight (1876), 82 Pa. 462. B. leased of A. certain oil lands. No rent was reserved, and no term of the demise stated. B. agreed in the lease, to put down a well to a depth of 600 feet, by a certain date; upon a failure to do so, a right of entry was reserved to the lessor. B. did not sink the well. The lessor sued to recover for the breach. It was held that if B. had dug the well, it would have been his as well as the product thereof; and that the lessor could only recover nominal damages. for the breach, and not what it would cost to sink such a well. The lease was construed to be a perpetual one to B., if he sank the well and kept the covenants of the demise: Chamberlain v. Parker (1871), 45 N. Y. 569. A mining lease, for a term certain, saving only to the lessor the right of tillage, is exclusive, and the lessor cannot mine himself within the tenement : Baker v. Dale (1870), 3 Pitts. (Pa.) 190. Land was leased exclusively for the purpose of producing oil, boring to be commenced within ten days, and continued with due diligence until success or abandonment; and a failure to get oil in paying quantities, or a cessure of work for thirty days at any time, amounted to a forfeiture of the lease. It was held that if the lessee failed to get oil in one well, he had a right to put down another, and as many more as he pleased, so long as he worked with diligence to success or abandonment; and that a cessation of work for thirty days forfeited the lease: Munroe v. Armstrong (1880), 96 Pa. 307. In October, 1875, B. agreed with S. that the latter should, for a term of fifteen years, have the right to enter upon and use the lands of the former so far as might be necessary to enable him to bore for oil, reserving to B. the oneeighth of all oil produced. Unless S. should commence boring the said well within nine months from the date of the contract, it was "to become void and cease to be of any binding effect." This contract was recorded and assigned to the defendant, who entered upon the land and at once commenced to bore a well, in February, 1877. In September, 1876, B., who had remained in possession of the land and in no way waived, extended or qualified the fulfillment of the contact, executed another and similar lease to M. and others, conferring upon them the exclusive right to dig and Lore for oil on the farm for the term of twelve years, which lease was recorded in January, 1877. [The reported decision says "1876," but this is evidently a clerical error.] M. and his co-lessees assigned their lease to the plaintiff, who, within the time therein specified, entered upon the land and commenced to bore a well. The plaintiff sued the defendant, his assignees and B., to procure a judgment declaring the S. lease forfeited and annulled, and to restrain the defendants from entering upon the land or boring therein for oil. The Court held that even though the lease appeared upon its surface to have become void by reason of the failure of the lessee to commence operations within the time limited by it, and though the act of the defendant in thereafter entering upon the land was a mere trespass, yet as the controversy related to the sinking of oil wells in land, in violation of rights therein claimed by the plaintiff, a court of equity would grant relief by injunction; that as B. continued at all times to occupy the land, it was not necessary that he should re-enter or give any notice of his intention to enforce the forfeiture occasioned by the neglect of the lessees to commence operations within the time limited; that even if any overt act or notice was required, the execution and delivery of the new lease to M. was a sufficient declaration of his election to enforce the forfeiture; and that the defendant could not show that after the execution and delivery of the lease to M., B. consented to his entering upon the land: Allegheny Oil Co. v. Bradford Oil Co. (1880), 21 Iun (N. Y.) 26; affirmed (1881), 86 N. Y. 638. A court will not decide, unaided by expert evidence, that natural gas is included in a lease of the right to mine "for petroleum, rock or carben oil, or other valuable volatile substances: 99 Ford v. Buchanan (1886), 111 Pa. 31. The assignment of a leasehold interest, including engines, boilers, tanks, tubing, derricks, and all other fixtures and personal property situated upon and appertaining thereto, does not transfer oil in tanks at the well: Dresser v. Transportation Co. (1875), 8 W. Va. 553. A. leased to B. 228 acres for the sole and only purpose of mining and excavating for gas and oil, for twenty years, or as long as oil or gas should be found on the premises in paying quantities within that period. The lessee agreed to commence operations upon one well within ninety days, and to prosecute the work" actively, diligently and continuously," and to complete the same on or before a day named, “and upon failure to do so within the time herein prescribed, to pay the party of the first part the sum of $1000 annually, in advance," etc. It was declared that upon a failure by the lessee to keep the covenants of the lease, that “such failure to perform, or breach of the said covenant, shall work an absolute forfeiture of this grant or lease, and the privileges or easements hereby given shall absolutely cease, determine, and become null and void." The Court held that the lessee could not terminate the lease by breach of the covenants, and the lessor might or might not terminate it, on such breach, at his pleasure: Wills v. Manufacturers' Natural Gas Co., decided in the Supreme Ct. of Pa., Nov. 11, 1889. Measure of Damage on a Contract to Dig an Oil or Gas Well. A. contracted to sink an oil well within twelve months, or pay $25 per annum until work commenced. In an action for this sum, it was held to be a good defense, except as to nominal damages, that the contract was founded on a mutual mistake as to the existence of oil on the lands: Bellv. Truit (1872), 9 Bush (Ky.) 257. If the contract is to dig a well a certain depth and of a certain width, digging one of the required depth, but of a narrower width, is not a compliance with the contract; and there can be no recovery, even if no gas is found, although the one dug was as effectual in determining whether gas could there be found as the wider one: Gillespie Tool Co. v. Wilson (1888), 123 Pa. 19. Grant of Exclusive Use of Streets. [Beyond compensation for the additional burden upon the land used as a street (supra, page 105), the greater question arises of the power to secure the exclusive right to lay pipes. As a result of many authorities upon this subject, it may be stated that a town or city, without power expressly conferred upon it by statute, cannot grant to a natural or artificial gas company, or one incorporated to furnish water, the right to an exclusive use of its streets, for the purpose of laying pipes therein, and supplying the inhabitants with gas or water; and if it does do so, it may, without danger of liability, disregard the grant and give other and similar companies, such privileges. If the town or city is empowered to grant such exclusive use by statute, or the legislature grant such an exclusive privilege; and the privilege or use is accepted by the company, and expenditures are made in pursuance thereof, the grant becomes a contract, which cannot be revoked, either by the city or the legislature. [These statements are sustained and illustrated by the following cases: Municipal Grant. [Such grants are void, because the general rule of law denies to municipal corporations, the power to create monopolies: ELLIOTT, J., Citizens G. & M. Co. v. Town of Elwood (1887), 114 Ind. 332, 336. Ill. & St. L. R. R. & C. Co. v. City of St. Louis (1872), U. S. Circ. Ct., E. Dist. Mo., 2 Dill. 70 (grain elevated); Davenport v. Kleinschmidt (1887), 6 Mont. 502, 529 (water supply). ["The exercise of such power may be convenient, but that is not sufficient; it must be essential and indispensable to the powers expressly granted, or to the declared objects and purposes of the corporation. *** It is certainly not essential, or necessarily incident to the power, expressly granted, 'to lay off streets,' etc., and light the same,' that the city should delegate to a private individual, or corporation, the exclusive right to furnish such light, and use the streets for that purpose. To justify such a construction, it must appear that in no other proper, or reasonable manner, could the city provide light for its streets and inhabitants:" SNYDER, J., Parkersburg Gas Co. v. City of Parkersburg (1887), 30 W. Va. 435, 440. [Where municipalities are authorized to grant the privilege of using the streets, no arbitrary authority is thereby conferred, but their action must be by an ordinance which is general in its nature and impartial in its operation, and which does not grant a special privilege to any company: ELLIOtt, J. Citizens G. & M. Co. v. Town of Elwood (1887), 114 Ind. 332, 338. [In this case, a statute of Indiana (approved March 7, 1887, Laws, p. 36) provides-"SECTION 1. Be it, etc., That the Boards of Trustees of towns, and the Common Councils of cities in this State, shall have power to provide by ordinance, reasonable regulations for the safe supply, distribution and consumption of natural gas, within the respective limits of such towns and cities, and to require persons or companies, to whom the privilege of using the streets and alleys of such towns and cities is granted, for the supply and distribution of such gas, to pay a reasonable license for such franchise and privilege." Municipal Revocation. [If an exclusive grant is made, the municipality may subsequently make another grant to another company, with impunity; the first grant being a contract beyond the power of the munici pality: Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. G. Co. (1888), U. S. Circ. Ct., W. Dist. Mich., 33 Fed. Repr. 659, 667, 677. Municipal Contracts. [If the contract is not warranted by the city charter, the city councils have, at all times, the right to declare it void and to refuse compliance with it: Brenham v. Brenham Water Co. (1887), 67 Texas 542, 553. [Subject to legislative interference (see below), a contract with a coal gas company, properly entered into, wilt bind the municipality, upon informal renewal: Taylor v. Lambertville (1887), 43 N. J. Eq. 107, before BIRD, V. C. And may be modified by subsequent contracts: City of St. Louis v. St. Louis G.-L. Co. (1879), 70 Mo. 69; s. c., 5 Mo. App. 484. [If a municipality refuses to take and pay for coal gas, it would probably be liable in damages: ADAMS, C. J., Searl v. Abraham (1887), 73 Iowa 507. [Where a city charter gave authority to the common council to provide, by ordinance, "for a supply of water for said city," and an ordinance was duly passed for a contract, and the contract contained a stipulation to pay an annual sum for fire purposes, the city was bound to pay for the water supply under the terms of the contract. It was no defense that the contract was to be continued as long as the company performed its part, because the authority to contract in this manner could not be denied to the city, under another section of its charter, requiring taxation for defraying the expense of water supply to be annual: Atlantic City W.W. Co. v. Atlantic City (1886), 48 N. J. Law 378. Additional Light. [There is a strong current of authorities to the effect that an exclusive contract for lighting the streets by coal gas, is not infringed by granting permission |