INJURY TO MINE-LIABILITY OF SURFACE OWNER.

A deed conveyed to the grantees all the coal and other minerals lying in and under the surface of the land conveyed without liability "for any damages done to the surface of said described tract of land in consequence of mining and working out said coal by the usual mode of mining and working the same." By the terms of the deed the grantees were to have the "perpetual right and privilege of passing through and under said described tract of land with other coal and minerals." The surface was subsequently conveyed to another, the deed "excepting and reserving therefrom and thereout all the coal underlying the same and the right to mine, take, and carry away all said coal, and also the right to use and occupy any and all entries under said tract of land and the right to enter upon said tract of land for the purpose of repairing any entry or entries that may become necessary, and the right to use said entries for the transportation of any coal that lies in that vein or strata." The deed expressly provides that it was without liability for surface support. During a long period of time while active coal mining was suspended the grantees, by the construction of drains and ditches, caused the surface water and vast quantities of débris to be washed into and partly fill the entries of the mine. Subsequently the coal was leased to the complainants, and thereafter the surface owners continued to drain the water and débris into the mine, filling up the entries, obstructing the entries. and damaging the mine. In an action by the lessees against the surface owners for damages they were only entitled to recover damages for injuries done to the mine after the execution of the lease, and the burden was on the lessees to show the injuries for which they claim damages arose subsequent to the time they took possession under their lease and to show what part of the damages claimed was due to the removal of accumulations after the date of the lease. The cost of the removal of débris accumulated since the complainants took possession under their lease was a sufficient basis for a determination by the jury of the damages, and these were questions of fact to be submitted to the jury and not questions of law to be determined by the court.

Sorg v. Frederick (Pennsylvania), 100 Atlantic 481, p. 482.

OIL AND OIL LANDS.

WITHDRAWALS-BONA FIDE OCCUPANTS PROTECTED.

The act of Congress of June 25, 1910 (36 Stat., 847), and as amended by the act of August 24, 1912, (37 Stat., 497) contains a proviso protecting bona fide occupants of oil lands who at the date of a withdrawal order are in diligent prosecution of work leading to the discovery of oil or gas. Under this proviso an occupant of an

oil claim without discovery is protected where prior to the date of a withdrawal order he had placed a caretaker in charge of the claim and had directed the shipment of certain material to the nearest railroad point and had ordered lumber to be delivered on the claim and had employed a carpenter to construct necessary buildings thereon and had entered into a contract with a driller to drill wells upon the claim. After the date of the withdrawal order the diligent prosecution and the subsequent completion of the work and the drilling of wells were confirmations of his prior good intentions and bona fides.

United States v. Ohio Oil Co., 240 Fed. 996, p. 1005.

WITHDRAWALS- -RIGHTS OF OCCUPANT DILIGENT PROSECUTION OF

DISCOVERY WORK.

The act of June 25, 1910 (36 Stat., 847), known as the Pickett Act, authorized withdrawals of the public lands and protected any occupants on the mineral lands who were in diligent prosecution of work leading to discovery of oil or gas. By this act Congress sought to give oil locators before discovery the same rights as against the Government that judicial decisions had given them against third persons. But there is no inference that Congress intended to confer any additional rights as against the Government upon those claiming without a discovery lands withdrawn by competent authority. Upon the withdrawal of land embraced in a mining claim in the absence of a discovery, a claimant possesses no rights as against the Government save the right, if he were then actually engaged in the diligent prosecution of such work leading to a discovery of oil or gas, to continue in the diligent prosecution of such work until a discovery be made, and not till then will his immunity against attack as by the Government be complete, but prior to such event and in the absence of the required diligent prosecution of work he had no defense to a withdrawal order.

United States v. Stockton Midway Oil Co., 240 Federal 1006, p. 1009.

OWNERSHIP OF OIL.

The owner of land is not by virtue of his proprietorship thereof the absolute owner of the oil and gas in and under the land in their free and natural state; but he, together with other owners of land in the gas field, has a qualified ownership consisting of the exclusive right to drill wells necessary to reduce such minerals to his possession, and by acquiring control thereof to become the owner of the oil and gas as his personal property with due regard in his operation to the like enjoyment of this exclusive right by other owners. This exclusive right is his private property, but by granting all the

oil and gas in and under his land he does not grant more than the right to reduce to ownership such oil and gas that may be obtained by operating on the land, whereby these substances that may be in and under the lands of other surface proprietors may come into the rightful ownership of the grantee as his personal property. A corporeal interest in oil and gas, due to their peculiar nature, can not be acquired without their reduction to personal property, but the exclusive and assignable right to do this, with the accompanying rights necessary to such accomplishment, constitutes a subsisting, exclusive, assignable, irrevocable right that accrues upon the execution of a written instrument of conveyance and before any action has been taken thereunder. Such a grant of right is in the nature of an incorporeal hereditament and is not a lease properly so called but is a conveyance of an interest in land within the meaning of the statutes.

Shaffer v. Marks, 241 Fed. 139, p. 142.

OPERATION OF WELLS

INJUNCTION REFUSED.

In a suit by the United States to recover oil lands on which there had been no discovery at the time of a withdrawal order, but where discovery was made and wells drilled after and in violation of the President's withdrawal proclamation, a court will take judicial notice of the fact that upon the sinking of a well into the oil sands and the production of oil therefrom a stoppage of the operations of the well will produce irreparable as well as incalculable injury to the property; and the court will not even in the face of waste being committed enjoin the operations of a well, as this would be to the damage of both parties and to the benefit of neither, and especially where the operating company is financially able to respond in damages and is willing to furnish a bond to pay any judgment recovered against it. Under such circumstances the court will not appoint a receiver pendente lite to operate and control the oil property upon which the wells have been sunk by the operating company. The Government in withdrawal cases possesses no higher or different right than private individuals seeking similar relief would possess.

United States v. Dominion Oil Co., 241 Fed. 425, p. 426.

SALE OF OIL-INJUNCTION.

An oil producer entered into an agreement with a pipe-line company to sell and deliver to it at a specified amount per barrel all of the oil produced and saved by the seller from a certain numbered well. The pipe-line company as such purchaser can not enjoin the seller from selling the oil from such well to another person, nor is it entitled to a mandatory injunction compelling the seller to deliver to

the pipe-line company all of the oil produced by the seller from such well, as a pipe-line company has an adequate legal remedy in an action for damages, and where such legal remedy exists, equitable relief will not be granted.

Simms v. Southern Pipe Line Co. (Texas Civil App.), 195 Southwestern 283, p. 287.

SALE OF GAS-RIGHT TO CHANGE RATES.

Under the statute of Kansas a receiver of a natural gas company has no right to change the rate or schedule of charges, rules, regulations, or practices pertaining to the supply of natural gas to the patrons of the company without the authority of the public utilities commission.

State v. Landon (Kansas), 165 Pacific 1111, p. 1112.

EMINENT DOMAIN.

APPROPRIATION OF LAND FOR MINING PURPOSES- REASONABLE

NECESSITY.

The constitution (sec. 14, art. 1) and the statutes of the State of Arizona make mining a public use and authorize the appropriation of private land for such use. Under these statutes the power of eminent domain may be exercised and private property appropriated for mining purposes if a reasonable, although not an absolute, necessity exists for the taking of the property.

Marsh Mining Co. v. Inland Empire Mining etc. Co. (Idaho), 165 Pacific 1128.

THEORY OF PUBLIC USE IN MINING INDUSTRY.

The theory upon which eminent domain is extended in aid of the mining industry is that public benefit will result from the application of private property to public use. The end sought to be obtained is that mines be discovered, developed, and operated, and that thereby the wealth of the State and the prosperity of its people will be augmented. The welfare of the State of Arizona depends largely upon the development of its natural resources, and the discovery of minerals in paying quantities in undeveloped mines is of vital importance to the State and to its present and future inhabitants, as is the successful operation of mines already developed. But it was not the intention of the framers of the constitution, or the legislature, that the power of eminent domain be so invoked that one mine will be developed and another be thereby destroyed, or that one mine owner be enriched and another be impoverished. The aid of eminent domain is intended to b extended to the industry and not to the individual.

Marsh Mining Co. v. Inland Empire Mining etc. Co. (Idaho), 165 Pacific 1128, p. 1130.

MINING PROPERTY-PUBLIC USE.

The constitution of Arizona (sec. 14, art. 1) provides that the necessary use of lands for certain mining purposes is a public use and is subject to the regulation and control of the State; but where the land of a mining claim is held by the owner for mining purposes the constitution makes no provision for the taking of such property held for, or devoted to, a public use for the purpose of applying it to the same or any other use. Pursuant to the constitutional provision the statute of Arizona (secs. 5212, 5213, R. S. Codes) provides that prop