| Pa. | Mar 22, 1862
Lead Opinion
The opinion of the court was delivered,
On October 30th 1837, Lewis Peterson entered into articles of agreement with Thomas Kier and Samuel M. Kier, by which he leased to them and their assigns a certain lot or piece of ground owned by him in the county of Allegheny, and adjoining the Pennsylvania Canal, with the privilege on the said premises to bore salt-wells and erect all manner of buildings necessary or useful in the prosecution of the manufacture of salt; and to use all coal in the hill in the rear of the said premises within the boundary lines of said Peterson’s land that may be necessary and proper to the successful prosecution of said manufacture, together with the right of taking from the before-described premises timber and stone to erect and keep in repair the establishment therein contemplated. It was also agreed that the said Peterson should be at liberty to lay a railroad near Humes’ line, from the coal-bank on the hill to the canal, provided it does not interfere with the interests of lessees in the conduct of their works and improvements. It was further agreed that the lease should endure as long as the salt-wells therein contemplated to be established should be carried on by the said Thomas Kier and Samuel M. Kier, the survivor of them or by their assigns. Then followed a
In consideration of which the said Thomas Kier and Samuel M. Kier agree to pay unto the said Lewis Peterson the one-twelfth barrel of' all the salt made on the said premises, to be delivered to the said Lewis Peterson, or his authorized agent, at the works on the said premises, on the first days of January, April, July, and October in each and every year during the continuance of this lease.
It will therefore be perceived that this instrument gave a life estate to the Kiers and the survivor, to endure as long as the salt-wells shall be carried on by them or their assigns, with two conditions, the first of which, as to putting the salt-wells in operation, has been fulfilled, and has therefore no longer any existence, and the second, as to letting the salt-wells remain idle or out of use for three continuous years, has never been broken. In fact it is conceded that all the covenants and agreements of the lessees have been strictly complied with, including the payment of the stipulated rent.
The lessees, therefore, had a freehold estate for life in these premises on condition, without any other restriction or limitation except what is expressly stated on the face of the articles of agreement. Subject only to this, these lessees were tenants for life of this property, and with all the rights belonging to such an estate.
The defendants went into possession of the demised premises, sunk a well in 1889, erected works, and commenced and continued the manufacture of salt; and about 1845 carbon oil, or petroleum, arose in the well in connection with the salt water, and the real question is, to whom does this oil belong, to the lessor or the lessees ? The oil must be separated ’ from the salt water, or the lessees cannot carry on their manufacture of salt, and they are clearly not obliged to keep it if they do not think it expedient, but may let it run into the canal as they did at first.
They are certainly not guilty of either legal or equitable waste, because the well through which the oil reaches the surface was
If mines are already opened, or if the lease permits their being opened, it is not waste for the tenant to work them even to exhaustion. Nor would it be waste to open new shafts or pits to follow the same vein. So as to saltworks: if there is am existing salt-well and works, it would not be waste to dig a new salt-well in connection with it: Findlay v. Smith, 6 Munford 134. There is therefore no charge of waste of any kind against the lessees.
If this had been an open spring, throwing out salt water, and finally petroleum also, could there be any doubt that it would be a part of the accruing profits ? So if it had been an open salt-well, would it not be in the samé category ? What difference, then, is there between these cases and a salt-well opened in express conformity to the articles of agreement ? It is the same as if it had been there before the lease was signed.
Petroleum or rock oil is essentially composed of carbon and hydrogen, and is a liquid inflammable substance or bitumen exuding from the earth, and is collected in various parts of the world — on the surface of the water, in wells and fountains, or oozing from cavities in rocks.
In the decomposition of vegetable substances, there are formed besides carburetted hydrogen, exhalations of which are of frequent occurrence in rock salt formations, liquid and solid hydrocarbons, such as naptha and petroleum, or mineral oil, mineral tar.
In Marietta, in the state of Ohio, the inflammable gas is a constant attendant upon brine springs, so that its appearance while boring in search of rock salt is looked upon as an indication of a favourable result; and in China the inflammable gas has been used to boil the brine, and also to heat and light the buildings in which the salt is prepared. On the shores of the Caspian Sea there is a tract called the Field of Fire, which continually emits inflammable gas, while springs of naptha and petroleum occur in the same vicinity.
On the surface of the Dead Sea, which is rery salt, asphalte is found in a soft or liquid as well-as a solid state, and it is said by high authority that bitumen in small particles hardly visible, but distinguishable by the smell, occurs in all the minerals of the saliferous system.
The presence therefore of petroleum or mineral oil is naturally to be expected in the salt formation west of the Allegheny Mountains, and although its great value has not been fully appreciated until within a few years, still if it comes up as in the present
Judgment reversed, and judgment entered for the defendant.
Concurrence Opinion
Concurring opinion delivered, March 27th 1862, by
I concur in the judgment of the majority, on the ground that the plaintiff’s action was misconceived. I hold that trover was not his appropriate remedy. A few words will suffice to exhibit my views.
Petroleum, or, as it is called in the West Indies, Barbadoes tar, is a species of mineral, which, while it exists in its natural deposits in the earth, is included in the very comprehensive idea which the law attaches to the word land. It is part of the land. It is land. As such it belonged to Peterson, in the place whore the present dispute arose. He held it by the same title by which he held the surface, or the salt which underlay the surface. He was absolute proprietor of all things between the surface and centre of the earth at that place, saving only the government’s right to share in the gold and silver that might be found. It was his freehold, and the petroleum and the salt were parts of the freehold.
By the article of agreement of October 30th 1837, he leased the premises to Thomas and Samuel M. ICier, for purposes of salt-wells. Under certain conditions and restrictions the lease was to endure as long as the salt-wells should be carried on by the ICiers, the survivor of them or their assigns. The rent reserved was every twelfth barrel of salt made on the premises. It was in effect and substance a sale of the crude salt in the land for one-twelfth of the manufactured article. Now, there is no doubt that the absolute owner of land may sell a partial interest in it as well as the whole. He may sell the surface and retain the minerals, or he may sell one or more of the minerals and retain
But it is self-evident that when he carves out a particular interest and sells it, he retains all the rest as absolutely as before he conveyed a part. Therefore I cannot doubt that Peterson was as exclusively and as absolutely the owner of the petroleum in this land after the lease of October 30th 1837 as before. There is not a word in the instrument which imports his intention to part with anything more than the salt in his land, and such timber and stones as should be necessary for erecting and maintaining saltworks. Every matter and thing in, and pertaining to the land which was not conveyed to the Kiers by that instrument was retained by Peterson.
But the Kiers could not exercise their right to raise salt without raising petroleum. They severed both the salt and the petroleum from the freehold, and brought both to their lawful possession at the surface. They were not trespassers. The severance of the petroleum was an inevitable incident of their exercise of clearly granted rights. The grant of the fight to take salt was the grant of all incidental rights which were indispensable to the exercise of the main one. Hence, their severance of the petroleum from the freehold, and their possession of it, were lawful. The work of separating the oil and salt was not difficult. With opportunity given them the fluids would separate themselves. But the Kiers, in lawful possession of both before separation, were to control the work of separation, and were in kwful -possession of each after that work was accomplished. For this reason I hold the action of trover will not lie. Although Peterson had not lost his right of property in the petroleum, yet a mere right of property in a chattel is not sufficient to maintain trover. The plaintiff must have also the right of possession at the time of conversion: 1 Chit. PI. 164; Saunders P. & E. 1138. In Mather v. Trinity Church, 3 S. & R. 509, the principle was carried further still, and it was held, that trover for stone and gravel dug from land, does not lie by one who has the right of possession, against a person who has actual adverse possession of the land and sets up title to it. In our case, Peterson -had no right of possession of the land whatever, and the Kiers were not in as mere adverse holders, but Peterson had conveyed the right of possession to them, and they were in under and according to his title. Nor were they guilty of waste in severing the petroleum from the freehold, since it was an inseparable consequence from the right granted to them by the landlord. Their actual possession, therefore, of the severed chattel, was in every sense a rightful possession, and, because no right of possession existed in Peterson at the moment of severance, trover will not lie.
On this ground alone I am for reversing the judgment. I hold