West Virginia.

Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 64 Am. St. Rep. 891, 38 L. R. A. 694 (1897). Life tenant of land has not the right to extract oil therefrom. "Petroleum oil, in its place in the land, is a part of the land itself, just as are coal, timber and iron (Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. R. A. 566; Williamson v. Jones, 39 W. Va. 231, 19 S. E. 436, 25 L. R. A. 222). A tenant for life cannot do anything entailing permanent injury to the estate of the remainderman or reversioner. He cannot, therefore, dig for gravel, lime, clay, stone, or the like; cannot open new mines for minerals. 1 Lomax, Dig. 54. If he take clay to make brick, not for repair of buildings, but for sale, it is waste (University v. Tucker, 31 W. Va. 622, 8 S. E. 410). It is the duty of the life tenant to protect the land from waste or injury even from others, and he must abstain from so doing himself. Therefore when J. himself committed waste by boring for oil, he was a wrongdoer, so far as concerns his life estate. The remainderman could sue him in an action of waste, as at common law under the English Statute of Malbridge, or in an action of trespass on the case under chapter 92 of the code, and recover the full value of the seven-tenths." There having been no open well on the land, and no antecedent authority to bore one, Koen v. Bartlett, 41 W. Va. 559, 23 S. E. 664, 56 Am. St. Rep. 884, 31 L. R. A. 128 (see vol. 1, p. 15), is not applicable to this case. "It may occur that, if J. could not [bore for oil] his life estate would be worthless to him. The oil might be drawn off by wells on an adjoining tract. As life tenant is he entitled to none of it. Such is the quality of that estate."

Wilson v. Youst, 43 W. Va. 826, 28 S. E. 781; Wilson v. Hughes, 39 L. K. A. 292 (1897). Y. by his will devised a tract of land to his widow for life, remainder to H. for life. remainder to the children of H. Oil having been discovered upon adjoining lands, the guardian of the remaindermen, who were minors, under 3239, chap. 83, Code of West Virginia, petitioned the circuit court for leave to sell his wards' interest in the oil and gas underlying the land, and obtained leave to lease the land for oil purposes for a term of years upon royalty, one-third of which was to be delivered to him and two-thirds to the life tenants.

Held that the life tenants were not entitled to any part of the royalties, but only to the interest thereon during their lifetime. Blakely v. Marshall, 174 Pa. 425, 34 Atl. 564 (see vol. 1, p. 14), followed.

"She had no right to open a mine on the land she held, as life tenant, unless the same had been opened in the lifetime of her husband. This, however, had not been done; and not having the right to open and work a mine that had not been opened in the lifetime of her husband, it follows, that she could not confer that right upon another. Oil in place under the land, * * * has been held in this State to be a part of the realty, and as much so as timber, coal, iron ore or salt; that it is a part of the inheritance, and an unlawful removal thereof is a disherison of him in re

mainder, constituting waste, which a court of equity, in a proper case, will restrain and enjoin."

Eakin v. Hawkins, 52 W. Va. 124, 43 S. E. 211 (1902). The interest of a life tenant in the proceeds of royalty oil taken from the premises is the interest on the fund during his natural life.

Where petroleum oil is extracted from land, conveyed to a person for life and remainder in fee to his heirs, under a lease from the life tenant, and a sale of the interest in the remainder by order of a court of chancery in a proper proceeding for the purpose reserving in the lease and order of sale one-eighth of the oil for the owners of the land, it is not error to decree, to the life tenant or his grantees, in another suit, the royalty oil or proceeds thereof, to hold until the expiration of the life tenancy, and take the income thereof, and then pay over the corpus of the fund to those entitled in remainder.

B. Tenants for Years.

p. 15. It is provided in the Code of Georgia 1895, § 3114, that "if no object of the lease is stated, the mining interest will not pass unless the circumstances justify an implication of such intention in the parties."

California.

Isom v. Rex Crude Oil Co., 147 Cal. 659, 82 Pac. 317 (1905). Oil is a mineral and as a mineral is part of the realty when in place. Its severance and removal, except in proper cases, is waste. A lease without reference to minerals, mines, etc., is a lease merely of the superficies of the soil, and under such a lease the tenant has no right to remove oil.

Indiana.

Waldorf v. Elkhart & W. R. Co., 13 Ind. App. 134, 41 N. E. 396 (1895), followed in Elkhart & W. R. Co. v. Waldorf, 17 Ind. App. 29, 46 N. E. SS (1897). The owner of a tract of land upon which were a brick making plant and a bed of clay, already opened, conveyed it to the railroad company, reserving the right of possession for a period of one year, except a right of way 66 feet wide. Held this reservation gave not only the naked possession but the use and enjoyment of the land which included the right to dig clay.

"It is settled law that tenants for life or years are entitled to work mines, quarries, clay pits or gravel beds, which have been opened and used before the time of commencement of the particular estate." "This rule is founded upon the principle that the holder is entitled to use and enjoy the land according to the previous and accustomed method. The opening of new mines would be waste, but the working of the old ones is a simple continuation of the use of the land made by the owner."

C.

Owners of Equities of Redemption.

P. 17.

United States.

Traer v. Fowler, 75 C. C. A. 540, 144 Fed. 810 (1906). 8th Circ. During the period of redemption of real estate sold under foreclosure and execution in Illinois, the mortgagor or judgment debtor is entitled to the possession and rents and profits of the property. Where the property is a mine, the rule for the admeasurement of rents and profits is the same as in cases involving the rights of dower and of life tenants. "Coal in its natural state beneath the surface of the earth is, under the laws of Illinois, real estate, and foreclosure, and execution sales of it are subject to redemption. When opened for mining purposes it is a mine whether it is so described in the mortgages and conveyances of it or not, and when it is and has long been operated through adjoining lands it is as much an opened mine as though a working shaft had been sunk to it from the surface of the land above it. The petition in this case contains no averment that the coal taken by the receiver during the period of redemption was not secured by the ordinary and reasonable operation of the opened mine which contained the mortgaged coal in the same way in which it had been worked before the receiver was appointed. It therefore fails to state a cause of action against the receiver because all the coal thus mined was the property of the mortgagor, and neither the purchaser at the foreclosure sale nor the subsequent redemptioner nor the plaintiff, its assignee, ever acquired any right to or interest in it, or in the possession of the mine during the period of redemption while the receiver was extracting it."

Pennsylvania.

Martin's Appeal, 9 Atl. 490 (1887). Mortgagor will be enjoined from removing sand and stone from the land. This is waste against which the mortgagee is entitled to protection until by reduction of the amount of the mortgage or other means he is sufficiently secured from probable loss.

Real Estate Trust Co. v. Hatton, 194 Pa. 449, 45 Atl. 379 (1900). Upon a bill in equity by mortgagee against mortgagor, the latter will be enjoined from digging clay on the mortgaged premises, if it will cause a material depreciation in the value of the property.

IV. PROPERTY AND RIGHTS IN THE MINERALS WHERE THERE ARE JOINT

OWNERS OF THE SOIL.

p. 18. In Missouri and in West Virginia, where by statute tenants in common are liable to their cotenants for waste, the taking of minerals from the land is waste. This also seems to be the case in Iowa, where a mine has not theretofore been opened.

The ground of this distinction, however, is not clear. Where such waste has been committed, the offending cotenant must account for the net profits; and the result is practically the same as in those states where mining is not waste, and where the tenant in common may lawfully mine, but must account to the cotenant for the value of the mineral in place. In those states where mining is waste, it would no doubt be enjoined at the suit of a cotenant.

In determining the measure of compensation due by a cotenant who takes minerals from the joint property, the standard applied in Coleman's Appeal, which in Pennsylvania is held to be exceptional, has been applied to the case of placer mining in Alaska, and has also been adopted in New York. The rule that the just basis of account is the value of the ore in place, and the true representative of that is the royalty which should be obtained for the privilege of mining, which prevails in Pennsylvania, cannot in view of the above departures from it be stated as of general application.

United States.

Higgins Oil & Fuel Co. v. Snow, 51 C. C. A. 267, 113 Fed. 433 (1902). 5th Circ. See this case on page 4.

Dettering v. Nordstrom, 78 C. C. A. 157, 148 Fed. 81 (1906). 9th Circ. One of several cotenants has no right to waste the substance of the mine. He has the right to operate the mine, but with it goes the obligation to account for the output less the reasonable expenses of mining, and the burden of proving those expenses is on him. The rule laid down in Fulmer's Appeal, 128 Pa. 24, 18 Atl. 493, 15 Am. St. Rep. 662 (vol. 1, p. 28), was held to be inapplicable to this case, and Coleman's Appeal, 62 Pa. 252 (vol. 1, p. 26), was followed, "There is no evidence in the record that there was any fixed royalty for mining placer claims in the region in which the mine in question was situated." Expert testimony was rejected; it was common knowledge in Alaska that no two placer mines contained the same amount of gold, and it could never be certainly known what would be found beneath the surface of any claim.

Dangerfield v. Caldwell, 81 C. C. A. 400, 151 Fed. 554 (1907). 4th Circ. "It is undoubtedly true that it is within the power of a court of equity to order the partition in kind of a tract of land known to have oil or gas, or both, under its surface, but the question will always arise as to whether in the interest of the parties such partition can and ought to be made." "The finding of gas upon the property tends to make it evident that the land cannot be equitably divided in kind." Such partition was denied in this case

where wells had been sunk by some of the cotenants, and it was shown that the value of the several parts would be greatly destroyed thereby.

Alabama.

Moragne v. Moragne, 143 Ala. 459, 39 So. 161, 111 Am. St. Rep. 52, 5 A. & E. Ann. Cas. 331 (1905). Where a tenant in common conveys his interest in a tract of land to his cotenant, reserving mineral rights, the cotenancy in the minerals is not disturbed, and it requires some open, notorious assertion of claim by the vendee to the mineral and some direct interference with or denial of the vendor's right thereto to constitute an ouster of him so far as the mineral is concerned. Until this occurs he has a right to assume that

the vendee is holding in accordance with the terms of the deed.

Colorado.

Wolfe v. Childs, 42 Colo. 121, 94 Pac. 292, 126 Am. St. Rep. 152 (1908). One cotenant, without the consent of the other cotenants, cannot demand from those who have not joined with him, or in some way given their consent, remuneration for expenses incurred in prospecting or developing the mineral resources of the common property. While the operating tenant may, in case he is called upon to account for profits, set off as against the others the cost of the necessary improvements, he must show that such improvements were necessary and added to and enhanced the value of the common property. It is well settled that tenants in common are not entitled to compensation from each other for services rendered in the care and management of the common property, in the absence of a special agreement or mutual understanding to that effect.

Illinois.

Zeigler v. Brenneman, 237 Ill. 15, 86 N. E. 597 (1908). One tenant in common may not operate for oil against the protest or without the consent of the other tenants in common.

An oil and gas lease made by one cotenant without the knowledge of the others, and which purports to be of the entire premises, is void as against the other cotenants; but as between lessor and lessee is valid, even while the premises remain undivided. It is only when and so far as the lease comes in conflict with the interests of the other cotenants that it is void. Such a lease being valid as to the interest of the one cotenant, though void as to the others, if he subsequently joins the others in a lease to a third person with notice, no title to his interest passes to the new lessee. In such case each lessee has a valid lease as to the interests of his lessor, and while neither can have partition, they may, by agreement with each other, operate for oil while the premises remain undivided, or any lessor may have partition, and the leases will follow the interests of the lessors, thereby giving each lessee the sole right to operate in his respective lots. But unless these leases agree as to operation, or one of the lessors procures partition, neither lessee may operate the property.