in a business venture, and whether as partners or tenants in common makes no difference.

Westmoreland N. G. Co. v. De Witt, 130, 235 (1889). "From the nature of gas and gas operations, already discussed (see p. 32), the grant of well rights is necessarily exclusive. It was so held even as

to oil wells, in Funk v. Haldeman, 53 Pa. 229, 247, 248, although in that case the plaintiff had a mere license to enter, etc., and not, as complainants here, a lease of the land; and it is exclusive in the present case over the whole tract."

A tract of land was leased for the sole and only purpose of drilling and operating gas wells, with a provision that no wells should be drilled within three hundred yards of a certain building, and a reservation of the surface for tillage. It was decided that the land within three hundred yards of the house was a part of the leased premises, and that the lessor might not grant to another the right to sink a well thereon.

Duffield v. Hue, 129, 94 (1889). Brown leased to Pratt all that certain lot or piece of ground situate, etc., according to a division of said tract into numbered sites, each site situated on lot numbered respectively on a map; and also sites for three wells south of a certain railroad to be designated and mutually agreed upon by the parties, for the term of fifteen years, "with the sole and exclusive right and privilege during said period of digging and boring for oil and other minerals on said lot." The rights of the lessee for oil-mining purposes were restricted to the specified sites. He had no right of possession for any purpose at any other place within the bounds of the territory described. He could not maintain ejectment for any of the land outside of the designated sites. If the lessors, or others acting for them, by boring other wells lessened his production or otherwise disturbed or interfered with his rights, he may have had his remedy, but not in this form. The lease was 66 a lease for production of oil, not a sale of the oil or of the

land."

Duffield v. Hue, 136, 602 (1890). The lessee in the above lease, however, has the protection of the entire premises, and equity has jurisdiction to restrain the lessor or others acting under him from drilling wells thereon outside of the designated site, and thereby lessening the production of wells drilled by the lessee, such injury being destructive of his rights and incapable of adequate remedy at law.

Duffield v. Rosenzweig, 144, 520 (1891); s. c. 150, 543 (1892). The lease in this case is described as "a lease of the exclusive right and privilege of digging and boring," etc., is said to be exactly like the lease of Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173, and an action for trespass (such as action under the act of May 25, 1887, being indistinguishable from an action on the case) was held to lie for damages against one boring for oil on the premises but outside of the designated sites. The lessee" was entitled to all the oil he could produce at those sites; and, although limited in his actual operations, he had the protection of the entire premises, and the privilege of drilling other wells on the same terms, if the lessors should determine to have other wells drilled. But except as stated he was not in the actual possession of the land, nor, perhaps, of the oil beyond his actual production."

Greensburg Fuel Co. v. Irwin Nat. Gas Co., 162, 78 (1894). "A right to take gas from the land or water from the spring of another for private use or consumption, is not land held in fee, and the appliances and privileges necessary to the enjoyment of the right are not."

VI. RESERVATIONS AND EXCEPTIONS.

The rule is laid down broadly that a reservation of minerals or mining rights is to be construed as a grant, and this may be taken to apply equally to an exception. Where the interest retained by the grantor is an incorporeal right, it is a reservation, being something which before had no existence. But where a corporeal interest in the minerals is retained by the grantor, it is an exception thereof. This is the broad distinction, which, however, is often not regarded.

Massachusetts.

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Farnum v. Platt, 8 Pick. 339 (1829). This was an action of trespass quare clausum fregit for carrying away marble from a quarry. The owner of land having leased a marble quarry thereon for ten years, conveyed the land, ing the use of the quarry until the expiration of the lease." The lease was cancelled within ten years with the consent of the parties. Held, that the reservation was not thereby extinguished, but that it would continue in force till the end of the ten years.

Parker, C. J.: "The words until the expiration of the lease' mean, until it shall expire according to the terms of it, and not the termination of it by a new agreement between the parties to it. And the reservation enures to the use of the lessor as well as the lessee; for it saves the quarry from the operation of the deed, for the time, as much as it would if the reservation had been for the unexpired time, without any mention of the lease."

Munn v. Stone, 4 Cush. 146 (1849). This was an action of trespass for taking and carrying away a portion of a ledge of granite in land alleged to belong to the plaintiff. The plaintiff claimed title by a deed from Severance. Severance derived his title from Lyman. In the deed from Lyman to Severance was the following reservation: "Reserving to myself the privilege of entering said tract, and taking and carrying away stone from the northern part of said tract as far south from the northern end as the woods now stand in said tract." The subject of this reservation was the granite ledge in controversy. The defendants claimed by a deed from Lyman by which he conveyed all the rights to the stone in the granite ledge which he reserved to himself.

"We cannot distinguish between the reservation of a right or privilege of entering on a particular, designated part of a tract conveyed and carrying away stone, and a reservation of the use of a marble quarry, out of the land conveyed, for a limited time. Whether it is an exclusive use, or a use in common, may be a question; but it is the

same in both cases. We think, therefore, that this case is substantially governed by that of Farnum v. Platt, 8 Pick. 339. The only difference is, that in the case cited the use reserved was for a term of years; in this case it is a reservation to the grantor generally, which, being without words of limitation, is a right for his life. We are of opinion, therefore, that the reservation recited did not constitute a mere privilege to Lyman to take stone personally, but was a right and interest in the use of the ledge, which was assignable; and the defendants, having obtained a right of him, were not chargeable with the trespass complained of."

Stockbridge Iron Co. v. Hudson Iron Co., 107, 290 (1871). In a deed poll of land containing an ore bed, a clause"reserving to " the grantor the right of mining on the granted premises" a certain quantity of ore annually, at a certain duty per ton, licenses him to enter and mine, but saves to him no title in the land, or in the ore before it is mined and separated from the land; does not restrict the grantees from mining at the same time, even to the exhaustion of the ore; and may be reformed in equity for variance through mutual mistake from the previous oral contract of the parties, as a reservation and not an exception from the grant, and therefore not within the Statute of Frauds.

Wardell v. Watson, 93, 107 (1887). Minerals in place Missouri. are land, and may be conveyed as such, and when conveyed they constitute an inheritance separate and distinct from the surface. A reservation of minerals and mining rights is construed as a grant. In either case the owner of the mineral estate has the right to dig and take the minerals. And for this purpose he has the right to enter and take possession even against the owner of the soil, and to hold such possession, and use the surface so far as may be necessary to carry on the mining, and this without express authority.

Snoddy v. Bolen, 122, 479 (1894). "An exception in a deed is always part of a thing in being and a part of the thing granted; while a reservation is of a thing not in being, and is newly created, as rents and the like. An exception withdraws from the operation of the conveyance some part of the thing granted, which but for the exception would have passed to the grantee under the general description; while the reservation is the creation, in behalf of the grantor, of some new right issuing out of the thing granted, that is to say, something which did not exist as an independent right. There can be no

doubt that the qualifying words used in the deed from H. and T. to the county amount to an exception, the thing excepted from the grant being the valuable minerals' in the streets and alleys. The minerals thus excepted remained in the grantor in the same right as before the grant. . . . Coal, mineral, and stone under the surface of the earth are subjects of grant and exception; and when excepted in a deed be come a separate and distinct inheritance."

Norton v. Snyder, 2 Hun, 82 (1874). S., who owned New York. certain land, leased to T. for the term of twenty-five years the exclusive right and privilege in all the cement stone on it, with power to quarry and remove the same, and with a covenant on

the part of S. to renew the lease for twelve years from its expiration. T. assigned to the N. C. Co. Subsequently, and before the twentyfive years expired, S. sold to A. part of the land, excepting and reserving for the N. C. Co. the privilege of quarrying and conveying off the cement stone which they hold by virtue of a certain lease for the same." At the expiration of the lease S. renewed it. Held, that he had no right to do so in so far as it related to the stone upon the land conveyed to A. And the latter was entitled to an injunction restraining the lessees from mining on his land.

Marvin v. Brewster Iron Mining Co., 55, 538 (1874). A conveyance of land"reserving always all mineral ores thereon now known, or that may hereafter be known, with the privilege of going to and from all beds of ore that may be hereafter worked on the most convenient route to and from," passes the surface land in its condition at the time the grant was made, or in the state, for the purpose of putting it into which the grant was made.

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"A reservation of minerals and mining rights is construed as is an actual grant thereof." "A reservation of minerals and mining rights from a grant of the estate, followed by a grant to another of all that which was first reserved, vests in the second grantee an estate as broad as if the entire estate had first been granted to him with a reservation of the surface."

Sloan v. Furnace Co., 29, 568 (1876). The words "reservOhio. ing all the minerals underlying the soil," in the granting clause of a deed for conveyance of land, constitute an exception of the minerals from the operation of the grant; the fee thereto remains in the grantor.

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Baker v.

McDowell, 3 W. & S. 358 (1842). B. seised Pennsylvania. in fee of a tract of land, subject to an outstanding title to one half of all iron ore found in the premises, conveyed the same to H. in fee, excepting and reserving to the said B., his heirs. and assigns, the one half of all iron ore found on the land." Held, to be a reservation to the grantor himself of that half of the ore which was vested in him, and not a mere notice or reservation of the other half which was outstanding.

Shoenberger v. Lyon, 7 W. & S. 184 (1844). A reservation in a deed of conveyance which is as large as the grant itself is void, and the grant is valid.

S. and L., being tenants in common of H. Furnace and the lands appurtenant thereto, and at the same time owners of a right to dig, take, and carry away ore to be used at H. Furnace from a tract of land which belonged to a third person, L. conveyed to S. his right, title, and interest in the furnace lands and ore bank, reserving the full undivided one-half part of all the iron ore in any of the land now belonging to the H. Furnace, within not less than two miles of H. Furnace. Held, not a reservation of right to take ore on land which belonged to the third person, though not within two miles of said furnace.

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Whitaker v. Brown, 46, 197 (1863). A provision in a deed in fee of land, saving and reserving, nevertheless, for his (the grantor's) own use the coal contained in the said piece or parcel of land, together with

free ingress and egress by wagon road to haul the coal therefrom as wanted," is not a reservation but an exception. The property in the coal remains in the grantor, and descends to his heirs.

Alden's Ap., 93, 182 (1880). On May 9, 1786, Peter Grubb conveyed to Robert Coleman premises which he had derived from his father, Curtis Grubb, "saving and excepting unto the said Peter Grubb, his heirs and assigns forever, the right, liberty, and privilege at all times hereafter of entering upon the premises, etc., and of digging, raising, and hauling away a sufficient quantity of iron for the supply of any one furnace at the election of the said Peter Grubb, his heirs or assigns, at all times hereafter." Peter Grubb exercised those rights by supplying the Berkshire Furnace.

On May 7, 1788, he conveyed to George Ege, his heirs and assigns, "all the right, liberty, and privilege of him, the said Peter Grubb, etc., of entering at all times hereafter upon the premises aforesaid, etc., and of digging, raising, and hauling away a sufficient quantity of iron ore for the supply of any one furnace at the election of the said George Ege, his heirs or assigns, at all times hereafter. Ege supplied the Berkshire Furnace until 1793, from which time he supplied the Reading Furnace until 1858. Improvements in the manufacture of iron, especially the use of steam instead of water power, the introduction of anthracite coal as a fuel, and the hot blast, very greatly increased the capacity of this furnace. Held: 1. The owners of the reserved right were not restricted to the quantity of ore used by each at the time he elected the Reading Furnace, but to a sufficient quantity to supply any one furnace from time to time selected by them, although of a larger capacity and using modern improvements in manufacture not known at the time of the election of the Reading Furnace.

2. The measure of the quantity of ore to which they were entitled was so much as a given furnace would use in the course of a year, taking into consideration wear and tear and the necessity of going out of blast for repairs at certain intervals.

3. The ore when taken from the mines was their absolute property, which they might use or sell, provided the entire quantity taken out did not exceed the quantity measured by the capacity of one furnace.

4. If they omitted to take all the ore to which they were entitled in any one year, they could not take the quantity thus omitted in any succeeding year.

5. They were liable for ore taken or stolen in excess of that needed for one furnace, and were chargeable with interest thereon.

Foster v. Runk, 109, 291 (1885). A. conveyed a farm to B. by a deed containing the following reservation: "Excepting and reserving thereout unto A. all and all manner of metals and minerals, substances, coals, ores, fossils, and also all manner of compositions, combinations, and compounds of any or all the foregoing substances, and also all valuable earths, clays, stones, paints and substances for the manufacture of paints upon or under the said tract of land." B. then leased the farm to C. for the manufacture of bricks, with the right to use the clay thereon for that purpose, reserving a certain royalty on bricks made and sold. The next day A. also made a lease to C. for ten years