the ground of fraud. The fraud charged was that the lands covered by the patents were at the several dates of their respective forest lieu selections known as coal lands enterable only under the coal-land act and not enterable as forest lieu selections and that they were at the time known to be such by the respective selectors and entry people whose affidavits to the contrary were alleged to be false. The act of June 3, 1878 (20 Stats., 89), known as the timber and stone act, provides that nothing in the act shall defeat or impair any bona fide claim or authorize the sale of any mining claim or the improvements of any bona fide settler of lands containing gold, silver, cinnabar, copper, or coal. It also provides for filing with the register of the proper district a written statement in duplicate by the entryman to the effect that the land does not, as the applicant believes, contain any valuable deposit of coal, and that the applicant must prove to the satisfaction of the Land Office that the land apparently contains no valuable deposits of coal. In the selection of lieu lands under the act approved June 6, 1900 (31 Stats., 614), such lands shall be confined to vacant, surveyed, nonmineral public lands subject to homestead entry. Mineral lands are not liable to entry and settlement under the homestead law. To justify the annulment of a homestead patent as wrongfully covering coal lands, it must appear that the known conditions at the time of the patent proceeding were plainly such as to engender the belief that the land contained coal deposits of such quality and in such quantity as would render their extraction profitable and justify expenditures to that end.

United States v. Porter Fuel Co., 247 Federal 769, p. 771.

ACTION TO AVOID PATENT-PROOF INSUFFICIENT.

In an action by the United States to avoid patents for coal lands the Government can not succeed where the evidence does not show that the land itself gave evidence of containing valuable deposits of coal at the time of their selection and at the time of the patent proceedings. The proof in the case showed that the sedimentary deposits in the region where the lands were located were cretaceous rock and that they embraced Dakota sandstone, the Macose shales, the Mesa Verde formation, the Lewis shales, and the Laramie sandstone. The Mesa Verde formation is from 700 to 1,000 feet in thickness, and this is the formation in which coal is found in the region where the land was located, and there was some proof to show that this formation extended under these lands; but the evidence also showed that this formation does not always contain coal. The evidence, viewed as a whole, is not convincing that at the time the several entry people made their entries they knew or had good reason to know that the lands in question apparently contained valuable coal deposits and

that, with such knowledge, they deliberately and intentionally swore

to the contrary.

United States v. Porter Fuel Co., 247 Federal 769, p. 774.

FRAUDULENT REPRESENTATIONS-RECOVERY OF EXCESS ROYALTIES

STATUTE OF LIMITATIONS.

A lessee in a coal lease sued the lessor to recover excessive royalties paid on the coal purchased and to be mined on the ground of alleged fraudulent representations or assurances on the part of the lessor as to the acreage and tonnage of coal and by reason of which the lessee was induced to enter into the lease and to agree to pay a minimum price for the coal. There was no warranty of acreage or quantity of coal, but there was a warranty of title and quiet and peaceable possession only. In such case a right of action for excess payments of royalties could be founded alone on fraud and deceit alleged, and such an action would be barred by the statute of limitations in five years from the date of the lease and the date when the cause of action accrued, where no reason is alleged why the deficiency of acreage was or could not be discovered before that time and where there is no allegation of obstruction by the lessor.

National Coal Co. v. Overholt (West Virginia), 94 Southeastern 735, p. 738.

PARTITION-MINING IMPROVEMENTS ALLOWANCE.

A cotenant who has made improvements on coal lands for the purpose of mining coal can not in an action for partition ask both that the portion of the land on which the improvements are made be assigned to him and that he be allowed the value of the improvements. If partition can be made he is entitled to have the portion of the land on which the improvements are made assigned to him; but if such partition can not be made in justice to all cotenants, he may, when such fact is made to appear, claim an allowance for the improvements made by him.

Alderson v. Horse Creek Coal Land Co. (West Virginia), 94 Southeastern 716, p. 719.

PARTITION-RIGHT OF COTENANT TO IMPROVEMENTS.

The fact that a cotenant located upon a particular part of the land owned by the cotenants and enhanced its value by making improvements for mining and removing coal is a circumstance worthy of consideration by a court charged with the duty of making partition of the land among the cotenants. If in making partition the part so improved can be assigned to the cotenant making the improvements without doing injustice to the other cotenants, such assignment will be made. It is the duty of a court making partition of land among cotenants to cause improvements to be assigned to the respective par

ties who made them, so far as it can be done consistently with an equitable partition of the estate. The rule applies to improvements made upon coal lands with a view to mining the coal.

Alderson v. Horse Creek Coal Land Co. (West Virginia), 94 Southeastern 716, p. 719.

COAL REMOVED BY COTENANT-PARTITION AND ACCOUNTING.

Where the partition of coal lands can be made so as to give one cotenant the part upon which he has placed improvements and from which he has mined coal, then the question will arise as to an accounting for the coal mined and the improvements made if the cotenant is entitled to compensation therefor. A commission for partition to whom the case was referred to take an account was properly directed to ascertain the amount of coal removed from the land and the value thereof, but if the part of the land from which the coal was taken is assigned to the cotenant taking the same as though the coal still remained in it, then it would be improper to charge him anything for the coal extracted therefrom. But if an equitable partition can not be made by assigning this part of the land to the cotenant making the improvements, this information may be valuable to the court in awarding compensation to the other cotenant for the coal extracted from the common estate.

Alderson v. Horse Creek Coal Land Co. (West Virginia), 94 Southeastern 716, p. 720.

PARTITION-ENJOINING MINING OPERATIONS BY COTENANT.

A court of equity will take jurisdiction at the suit of one cotenant to enjoin waste being committed on the joint estate by another cotenant by the mining and removal of coal therefrom; but where it appears that the mining operations are of such character that the land from which the coal is taken may consistently with the equitable partition of the land be assigned to the cotenant mining the coal therefrom, and it also appears that great damage would result from enjoining the operations of the mining of the coal, a court of equity will refuse such relief and in partitioning the land will assign the part from which coal has been mined to the cotenant who removed the coal therefrom.

Alderson v. Horse Creek Coal Land Co. (West Virginia), 94 Southeastern 716, p. 719.

OIL AND OIL LANDS.

OIL AND GAS AS MINERALS.

Petroleum oil and natural gas are mineral, and in their places are real estate and part of the land.

Horse Creek Land & Mining Co. v. Midkiff (West Virginia), 95 Southeastern 26, p. 27.

OIL AND GAS ARE PARTS OF LAND.

Oil and gas adhere to the land and are parts of it until severed. Campbell v. Lynch (West Virginia), 94 Southeastern, 739, p. 743.

MINERALS INCLUDE OIL.

The term "minerals" used to describe the interest in land granted or reserved prima facie includes petroleum oil and natural gas unless it appears that the term was employed in a more restrictive sense. Horse Creek Land & Mining Co. v. Midkiff (West Virginia), 95 Southeastern 26, p. 27.

CONVEYANCE OF OIL AND GAS IN PLACE- -CONDITIONS SUBSEQUENT.

By the terms of a written agreement all of the oil, gas, and other minerals beneath the land described were sold and conveyed to the grantee, to have and hold the same on condition that drilling for oil and gas was begun and diligently prosecuted within 30 days from the grant. If oil or other mineral was discovered within that period, the grant was to continue in force for 20 years, or so long as oil could be produced in paying quantities. The grant expressly declared that it evidenced a conveyance of property and not a mere franchise. The agreement by its terms evidenced an absolute sale of all minerals. beneath the land subject to the condition subsequent in relation to locating and bringing the oil to the surface; and this being complied with the grant became absolute for the purposes contemplated by the parties for a period of 20 years, or as long as oil in paying quantities could be produced.

Munsey v. Marnet Oil & Gas Co. (Texas Civ. App.), 199 Southwestern 686, p. 688.

RESERVATION OF MINERALS- OIL NOT INCLUDED.

A deed conveying certain lands in West Virginia, dated May 15, 1891, contained a reservation of minerals as follows: "to have and to hold with all the appurtenances thereto belonging, excepting and reserving all the minerals, coals, together with all the necessary rights of way of ingress and egress to and from, over, through, or under said premises, to mine, excavate, and transport the same, excepting a sufficiency of said coals for domestic use." This clause is a reservation of the coal only, and is not a reservation of the oil and gas. Horse Creek Land & Mining Co. v. Midkiff (West Virginia), 95 Southeastern 26, p. 27.

CONTRACT OF PURCHASE AND CONVEYANCE-INDEMNITY BOND.

A producer of oil gave to a purchaser and a pipe-line owner transporting the oil a bond to indemnify and save harmless the pipe-line

owner and to entitle the oil producer to receive his proportion of the proceeds of the oil to be delivered into the pipe line, and to save the pipe-line owner harmless as against claims pending and threatened against the oil so delivered and to be delivered to the pipe-line owner. The pipe-line owner under the protection of the bond paid to the oil producer large sums for the oil supplied, but refused to pay for the remainder to the extent of the amount of the bond. The acceptance of the solvent bond under the agreement between the parties was sufficient to bind the pipe-line owner for the payment of oil to the amount stipulated in the bond and render him liable for any deficiency between the amount paid and the face of the bond. Atlas Oil Co. v. Standard Oil Co., 142 Louisiana, 77 Southern 471, p. 474.

BREACH OF CONTRACT TO DEEPEN WELL DAMAGES.

An oil and refining company entered into a contract by which the contractee agreed to deepen a well at an agreed price for each foot of increased depth. The company agreed to supply all tools, machinery, and appliances to be used in the performance of the work. The contractee proceeded to a certain stage of his work when further prosecution was stopped by the refusal of the company to furnish a certain cable needed in the operations, and which it was bound to supply under the agreement. Under a count for damages the contractee proved the amount of his expenditures and the value of his services. These items constitute the correct element of damages under the rule that a party who voluntarily and wrongfully puts an end to a contract and prevents the other party from performing it is estopped from denying that the injured party has not been damaged to the extent of his actual loss and outlay fairly incurred and for his own services.

Blair v. Brownstone Oil & Refining Co. (Cal. App.), 170 Pacific 160.

RIGHT OF RAILROAD COMPANY TO MINE OIL ON ITS RIGHT OF WAY.

A deed to a railroad company conveyed the fee in the land used by it for its right of way. Under such a conveyance the railroad company can not be enjoined or restrained either from leasing its land for oil development or from itself drilling oil wells and extracting oil therefrom upon its land. The fact that the wells on the railroad company's right of way will drain the oil from adjoining lands is not a sufficient ground for the exercise of the restraining power of a court of equity.

Chrowell v. Howard (Texas Civ. App.), 200 Southwestern 911, p. 912.

TRUST-RIGHTS OF PURCHASER WITH NOTICE.

An oil and gas lease was executed in the name of one of the members of a group of buyers who took title for the benefit of all. The

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