No. 1,853 | 7th Cir. | Jan 10, 1913
(after stating the facts as above). The language of the contract is:
“That said party of the first part [plaintiffs] for and in consideration of seventy-five dollars ($75.00) per acre for the oil and gas lease to the property hereinafter described, agrees to and with the Jennings Producing Company, party of the second part, to procure and deliver to the Jennings Producing Company, party of the second part, a lease in due form signed by the owners of said land, leasing to said party of the second part the said land for oil and gas, together with good and sufficient title,”
—to, to wit, said 162%. acres. Did this _ language require^ plaintiffs to convey to defendant an absolute estate in fee to all of said premises? The language clearly discloses that defendant was to take no estate in said tract except in the gas and oil and their appurtenances, which included such other estate as was reasonably necessary in securing to him the enjoyment of his gas and oil estate therein. He acquired no interest in the coal whatever. As was said in the concurring opinion of Justices Williams, Green, and McCullum, in Chartiers Block Coal Co. v. Mellon, 152 Pa. 293, 25 Atl. 600, 18 L. R. A. 702, 34 Am. St. Rep. 645:
“One who buys a single stratum is bound to know where it is and how it is situated with reference to the strata abovfe and below it, and he must be conclusively presumed to have taken title subject to the servitudes imposed . by nature upon it as the necessary consequence of its xiosition among the rocks that underXie the surface. * * * We do not hesitate to enforce the servitude for support whether subjacent or adjacent, or to regulate the extent and manner in which it shall be rendered and enjoyed. With equal propriety and with equal ease, we may enforce the servitude for access and regulate the extent and manner in which it shall be rendered and enjoyed.”
“I concur in the decision made in this case and in the opinion which so ably vindicates it, hut T would go further — I would lay down the broad proposition that the several layers or strata composing the earth’s crust are, by virtue of tlieir order and arrangement, subject to reciprocal servitude, and, as these are imposed by the laws of nature and are indispensable to the preservation and enjoyment of the several layers or strata to and from which they are due, the court should recognize and enforce them.”
Defendant purchased only two of the several strata which, the fee embraced. Can it be. claimed that he secured any interest in the remaining strata, except those of support, means of access, and removal of the gas and oil ? As was said in the majority opinion of the court in the case last cited:
“While the owner of the coal may have an estate in fee therein, it is at the same time an estate that is peculiar in its nature. Much of the confusion of thought upon this subject arises from a misapprehension of the character of this estate. We must regard it from a business as well as legal standpoint. The grantee of the coal owns the coal, but nothing else save the right of access to it and the right to take it away. Practically considered, the grant of the coal is the grant of a right to remove it. This is sometimes limited in point of timo; in others, it is without limit. In either event, it is the grant of an estate determinable upon the removal of the coal. It is, moreover, a grant of an estate which owes a servitude of support to the surface. When the coal is all removed, the estate ends for the plain reason that the subject of It has been carried away. The space of it reverts to the grantor by operation of law. It needs no reservation in the deed, because it was never granted. The grantee has the right to use and occupy it while engaged in the removal of the coal, for the reason that such use is essential to the enjoyment of the grant. * * * The owner of the coal must so enjoy his own rights as not to interfere with the lawful exercise of the rights of others who may own the estate, either above or below him. The right of the surface owner to reach his estate below the coal exists at all times.”
Applying the foregoing statement of the law to the present case, we areoof the opinion that the covenant for a good and sufficient title conveys all gas and oil rights in said premises together with all rights necessary in securing to defendant the enjoyment of his said estate, such as the right of access, the right: to install the necessary plants for producing and removing the oil and gas and each of them; that such rights are subject to the natural servitudes which secure to the owners of the other strata such as surface day and coal and any other substance located between the center of the earth within the boundary lines of said tract projected to the zenith. This doctrine is approved in Thornton on Oil and Gas, p. 367, and in Rend v. Venture Oil Co. (C. C.) 48 F. 248" court="None" date_filed="1891-11-18" href="https://app.midpage.ai/document/rend-v-venture-oil-co-8842741?utm_source=webapp" opinion_id="8842741">48 Fed. 248.
Defendant was in no sense prejudiced by the sale of the coal. His insistence to the contrary under the facts of this case was factitious, sired by an afterthought. The case should have been submitted to the jury, and the ruling, of the district judge in that respect was error.
The judgment of the district court is therefore reversed, with directions to grant a new trial.