Opinion Per Curiam. tions to her land, the location and productivity of the gas wells claimed to be located upon adjoining lands and which she claims are under-draining her land. The burden of proof is upon her to prove by a preponderance of the evidence that she has been damaged by failure to drill offset wells, as claimed in her petition; but the burden of proof, to prove by a preponderance of the evidence, that there is no gas, or was no gas under her lands during the period of the said lease, which would justify the said defendant, as an ordinary, prudent man, to drill for gas, is upon the defendant, and the defendant must prove by a preponderance of the evidence that fact." That part of the charge placing the burden of proving damage upon the plaintiff and then shifting this burden upon the defendant by requirement that the burden was upon it to show that there was no gas under the land would necessarily confuse the jury upon this issue. What the trial court had probably in mind was this, that the plaintiff having proved the circumstances and conditions surrounding, together with the location and productivity of gas wells upon adjoining lands, the burden of proof then shifted, and it became incumbent upon the defendant to prove by a preponderance of the evidence that there was no productive gas under her lands during the life of the lease. In attempting to shift the burden upon this issue the trial court erred. The main issue of fact in the case was this: Was there productive gas, of sufficient quantity to warrant operations, under the lands of the lessor, and was the same drained into the wells on adjoin Opinion Per Curiam. ing lands by reason of the failure of the lessee to drill wells for the protection of the lessor's lines? Any testimony of the plaintiff tending to show the surrounding circumstances, the location and productivity of wells on adjoining territory, the transitory nature of gas, the direction of its flow, or any other competent evidence tending to show that gas existed under her lands in sufficient quantity to warrant the expense of drilling and marketing, would be affirmative evidence tending to prove that the lessor was damaged. This affirmative issue was assumed by the plaintiff and carried the burden of proof thereon throughout the entire case. Evidence offered by the defendant, that there was no gas, or that there was insufficient gas, merely negatived that issue. This rule, imposing the burden of proof upon plaintiff, has been approved in the following cases: Grass et al. v. Big Creek Development Co., 75 W. Va., 719, and Steele et al. v. American Oil Development Co. et al., 80 W. Va., 206. We do not, however, hold that the proof required must be clear and convincing upon this issue. It was sufficient for the plaintiff to prove it by a preponderance of the evidence. The defendant in error insists that this rule of proof has been qualified by Cook v. Andrews & Hitchcock, 36 Ohio St., 174, and Brick Co. v. Pond, 38 Ohio St., 65. These two Ohio cases, however, are readily distinguished. In both of them the lessee covenanted to pay a fixed and definite annual rental whether mining operations were carried on or not. In each of them it was incumbent upon the Opinion Per Curiam. lessee to mine or pay the annual rental. The latter it refused to pay and suit was brought. In each case it was held that the lessee was liable on his express covenant to pay the fixed sum agreed upon and that it was incumbent upon the lessee to show the non-existence of mineral in order to escape liability for what might be termed delay in mining. Had the plaintiff in this case sued to recover for the delay rentals agreed to by the express covenant of this lease, the situation would be analogous. For the reasons stated the judgments of the common pleas court and the court of appeals are reversed and the cause remanded for further proceeding according to law. Because of the complexity and confused state of this record we have not passed upon the major questions affecting the right of the plaintiff to recover, since it is desirable that upon retrial the legal questions involved should be presented in a more succinct and tangible form. Judgments reversed. JONES, MATTHIAS, JOHNSON, WANAMAKER and ROBINSON, JJ., concur. Statement of the Case. DRAKE V. THE CITY OF EAST CLEVELAND. Municipal corporations - Streets and alleys-Duty to keep open, etc.- Liability for negligence - Limited to usual and ordinary uses- Runaway team leaves safe portion of street - Occupant of vehicle injured - Proximate cause- ·Condition of street or negligence of city. 1. The obligation of a municipality to keep its public ways in a reasonably safe condition for public travel exists with respect to such persons as travel the ways in the usual and ordinary modes, and does not extend to undirected and uncontrollable travel, such as a team of horses running away in the absence of its driver. The municipality is not responsible for injury sustained by a person upon the vehicle involved in such runaway, if such injury to him results from the uncontrolled action of the team in leaving that part of the public way which is reasonably adequate and safe for travel. 2. Where a two-horse delivery truck, which had been standing at the curb on that side of a public, city street, fifty-four feet wide, which was paved to a width of thirty-four feet and for that space in a condition of reasonable safety for travel, was carried, in the absence of the driver, by the horses becoming frightened and uncontrollable, across the street into a narrow trench left open in that portion of the street which was in the process of remaking, and the plaintiff stationed in the rear of the truck was injured by being thrown to the ground when the wheels of the truck dropped into the trench, the proximate cause of the plaintiff's injury was the running away of the horses and not the negligence of the city in leaving the trench open and unguarded. (No. 16203-Decided March 2, 1920.) ERROR to the Court of Appeals of Cuyahoga county. The accident which is the subject of this action occurred on Euclid avenue in the city of East Cleveland. On a certain day, about noon, the plaintiff and one John H. Robinson were engaged in making deliveries for The National Biscuit Statement of the Case. Company, and for that purpose had in charge a two-horse truck, which, shortly before the time immediately in question, had been brought to a stop close to the south curb of Euclid avenue, in front of the Noble grocery. Drake and Robinson each testify that the other drove the truck to the Noble grocery, but both agree that Drake set the brake before leaving the front of the wagon to handle packages from the rear end. Robinson received the packages from Drake, carried them into the grocery, and on his return to the truck observed that the off horse had rubbed off his bridle. As he started toward the horses they shied and started away driverless, carrying the truck with Drake at the rear end where he had been making up packages for the next delivery. The team started eastwardly, in which direction it had been facing, but shortly veered to the north, crossing the double street car rails which occupied the center of the street. After crossing the car tracks the team turned sharply to the west, at which time, according to the plaintiff's claim, one of the rear wheels of the truck dropped into a trench in the street, causing the plaintiff to be thrown out of the rear of the truck, his head striking on a pile of stone located in the sidewalk space immediately adjacent to the north curb. The horses, from the time they left their standing position at the south curb until the plaintiff was thrown from the truck, apparently attained no considerable speed, but they were clearly uncontrollable and running wild. |