cannot be applied to contracts concerning them without some qualifications. They belong to the owner of the land, and are a part of it, so long as they are on it or in it, or subject to his control, but when they escape and go into other land, or come under another's control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas, extending under his neighbor's field, so that it comes in to his well, it becomes his property. Brown v. Vandergrift, 80 Pa. 142, 147; Westmoreland & C. Natural Gas Co.'s Appeal, 25 W. N. C. 103."

In Westmoreland & C. Natural Gas Co. v. De Witt, 130 Pa. 235, 5 L. R. A. 731, 18 Atl. 724, the Supreme Court of Pennsylvania considered the character of ownership in natural gas and oil as these substances existed beneath the surface of the earth. The Court said:

"The learned master says gas is a mineral, and while in situ is part of the land, and therefore possession of the land is possession of the gas. But this deduction must be made with some qualifications. Gas, it is true, is a mineral; but it is a mineral with peculiar attributes, which require the application of precedents arising out of ordinary mineral rights, with much more careful consideration of the principles involved than of the mere decisions. Water, also, is a mineral, but the decisions in ordinary cases of mining rights, etc., have never been held as unqualified precedents in regard to flowing or even to percolating waters. Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals feræ naturæ. In common with animals, and unlike other minerals, they have the power and the tendency to escape without the volition of the owner. Their 'fugitive and wandering existence within the limits of a particular tract is uncertain,' as said by Chief Justice Agnew in Brown v. Vandergrift, 80 Pa. 147, 148, . . . They belong to the owner of the land, and are a part of it, so long as they are on or in it, and are subject to his control; but when they escape and go into other land, or come under another's control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas."

A brief examination of the Indiana decisions on the subject of oil and natural gas, and the right to acquire ownership thereto will make it apparent that from the peculiar nature of these substances Courts of that State have announced the same rule as that recognized by this Court in Brown v. Spilman, 155 U. S. 665, 669, 670, 39 L. ed. 304, 305, 15 Sup. Ct. Rep. 245, and which has been applied by the Supreme Court of the State of Pennsylvania. . .

...

Without pausing to weigh the reasoning of the opinions of the Indiana Court in order to ascertain whether they in every respect harmonize, it is apparent that the cases in question, in accord with the rule of general law, settle the rule of property in the State of Indiana to be as follows: Although in virtue of his proprietorship the owner of the surface may bore wells for the purpose of extracting natural gas and oil until these substances are actually reduced by him to possession, he has no title whatever to them as owner. That is, he has the exclusive right on his own land to seek to acquire them, but they do not become his property until the effort has resulted in dominion and con

trol by actual possession. It is also clear from the Indiana cases cited that, in the absence of regulation by law, every owner of the surface within a gas field may prosecute his efforts and may reduce to possession all or every part, if possible, of the deposits, without violating the rights of the other surface owners.

If the analogy between animals feræ naturæ and mineral deposits of oil and gas, stated by the Pennsylvania Court and adopted by the Indiana Court, instead of simply establishing a similarity of relation, proved the identity of the two things, there would be an end to the case. This follows because things which are feræ naturæ belong to the "negative community"; in other words, are public things subject to the absolute control of the State, which, although it allows them to be reduced to possession, may at its will not only regulate, but wholly forbid, their future taking. Geer v. Connecticut, 161 U. S. 519, 525, 40 L. ed. 793, 795, 16 Sup. Ct. Rep. 600. But whilst there is an analogy between animals feræ naturæ and the moving deposits of oil and natural gas, there is not identity between them. Thus, the owner of land has the exclusive right on his property to reduce the game there found to possession, just as the owner of the soil has the exclusive right to reduce to possession the deposits of natural gas and oil found beneath the surface of his land. The owner of the soil cannot follow game when it passes from his property; so, also, the owner may not follow the natural gas when it shifts from beneath his own to the property of some one else within the gas field. It being true as to both animals feræ naturæ and gas and oil, therefore, that whilst the right to appropriate and become the owner exists, proprietorship does not take being until the particular subjects of the right become property by being reduced to actual possession. The identity, however, is for many reasons wanting. In things feræ naturæ all are endowed with the power of seeking to reduce a portion of the public property to the domain of private ownership by reducing them to possession. In the case of natural gas and oil no such right exists in the public. It is vested only in the owners in fee of the surface of the earth within the area of the gas field. This difference points at once to the distinction between the power which the law-maker may exercise as to the two. In the one, as the public are the owners, every one may be absolutely prevented from seeking to reduce to possession. No devesting of private property under such a condition can be conceived, because the public are the owners, and the enacting by the State of a law as to the public ownership is but the discharge of the governmental trust resting in the State as to property of that character. Geer v. Connecticut, 161 U. S. 519, 525, 40 L. ed. 793, 795, 16 Sup. Ct. Rep. 600. On the other hand, as to gas and oil the surface proprietors within the gas field all have the right to reduce to possession the gas and oil beneath. They could not be absolutely deprived of this right which belongs to them without a taking of private property. But there is a coequal right in them all to take

from a common source of supply the two substances which in the nature of things are united, though separate.

to

It follows from the essence of their right and from the situation of the things as to which it can be exerted, that the use by one of his power seek to convert a part of the common fund to actual possession may result in an undue proportion being attributed to one of the possessors of the right to the detriment of the others, or by waste by one or more to the annihilation of the rights of the remainder. Hence it is that the legislative power, from the peculiar nature of the right and the objects upon which it is to be exerted, can be manifested for the purpose of protecting all the collective owners, by securing a just distribution, to arise from the enjoyment, by them, of their privilege to reduce to possession, and to reach the like end by preventing waste. This necessarily implied legislative authority is borne out by the analogy suggested by things feræ naturæ, which it is unquestioned the legislature has the authority to forbid all from taking, in order to protect them from undue destruction, so that the right of the common owners, the public, to reduce to possession, may be ultimately efficaciously enjoyed.

Viewed, then, as a statute to protect or to prevent the waste of the common property of the surface owners, the law of the State of Indiana which is here attacked because it is asserted that it devested private property without due compensation, in substance, is a statute protecting private property and preventing it from being taken by one of the common owners without regard to the enjoyment of the others. Indeed, the entire argument upon which the attack on the statute must depend involves a dilemma, which is this: If the right of the collective owners of the surface to take from the common fund, and thus reduce a portion of it to possession, does not create a property interest in the common fund, then the statute does not provide for the taking of private property without compensation. If, on the other hand, there be, as a consequence of the right of the surface owners to reduce to possession, a right of property in them in and to the substances contained in the common reservoir of supply, then, as a necessary result of the right of property, its indivisible quality, and the peculiar position of the things to which it relates, there must arise the legislative power to protect the right of property from destruction.

...

These considerations are sufficient to dispose of the case. . . . We cannot say that the statute amounts to a taking of private property, when it is but a regulation by the State of Indiana of a subject which especially comes within its lawful authority.

Affirmed.

251.

CUMBERLAND TELEGRAPH & TELEPHONE COMPANY v. UNITED ELECTRIC RAILWAY COMPANY SUPREME COURT OF TENNESSEE. 1894

93 Tenn. 492, 29 S. W. 104

APPEAL from Circuit Court, Davidson county; W. K. MCALISTER, Judge.

Suit by the Cumberland Telegraph & Telephone Company against the United Electric Railway Company. From a judgment for defendant, plaintiff appeals. Reversed in part.

Vertrees & Vertrees, for appellant. ford, for appellee.

East&Fogg and J. C. Brad

PICKLE, Special Judge. This is a suit by a telephone company against an electric street-railway company to recover damages inflicted upon the telephone plant by the contiguous railway plant. The plaintiff has appealed from an adverse judgment, and assigned errors. The facts are practically undisputed, and, so far as they are material or pertinent to the questions to be determined, are as follows:

The plaintiff, a Kentucky corporation, had, prior to 1889, established in the city of Nashville a telephone plant upon the "single-wire" plan or system. The earth, under this system, is used as the return conductor to complete the electrical circuit, and the overhead single wire must have earth connections at both ends, at the exchange, and at the subscribers'. These earth connections of plaintiff's wires were effected upon private property at both ends, upon the company's property at the exchange, and upon the subscriber's property, by his consent at the other end. The poles upon which plaintiff's wires were stretched were planted in the public streets by permission of the city council, and by authority of a general statute of this State, which empowers telephone and other like companies, both foreign and domestic, to construct, operate, and maintain, upon consideration of certain benefits conceded to the State and general government, their lines along and over the public highways and streets of the cities and towns of this State, provided that the ordinary use of such public highways, streets, etc., be not thereby obstructed. Acts 1885, c. 66. In telegraphy, of which telephony is but another form, it has been universal practice for half a century to use the earth as the return circuit. The plaintiff plant was constructed in accordance with an approved system, and the one chiefly used in all the large cities of the United States. The electric currents required and used in the operation of plaintiff's plant cause no hurtful disturbance anywhere of natural electric conditions. The plaintiff's plant, thus constructed, was in perfect condition and successful operation, rendering satisfactory service to its patrons, when, in 1889, the defendant, a domestic corporation, having obtained control of the street railways of Nashville, which had, with one unimportant

exception, been operated by horse power, constructed and put into operation thereon a single-trolly overhead electric railway system. Defendant's action in this particular was authorized by general public statutes of the State, which provided that street-railway companies that had hitherto used animal power for the operation of their cars might, with the consent of the city authorities, adopt electricity as a motive power. Acts 1887, c. 65; Acts 1889, c. 40. The required consent of the city authorities was obtained by defendant. While there are two systems of electric railways, the single-trolly system and the double-trolly system, the former is the more approved and satisfactory, and the one in general use. It is better adapted than the double-trolly system to single-track railways like defendant's. It is likewise cheaper. The defendant's plant was properly constructed and equipped according to the single-trolly system. The earth is used as a return circuit in the operation of street railways constructed upon the single-trolly plan, but not for those operated upon the double-trolly plan. The defendant, in the operation of its plant, generates or collects electricity in such unusual quantities, and applies and uses it in such violent, turbulent, and varying currents, as to produce a nonnatural and disturbed condition electrically, not only within the streets, but for the distance of half a mile on either side. The plaintiff's entire plant was for a time paralyzed, and its utility destroyed, by the construction and operation of defendant's plant or system. The injuries, so fatal to plaintiff's franchise and plant, resulted by several methods that it is important to describe.

First. Injury resulting from what is known as "conduction" or "leakage." Currents of electricity of great strength and force are generated and applied by defendant in the propulsion of its cars. These abnormal currents of the electrical fluid are poured out or permitted to escape into the streets. They overflow the streets and invade private property for half a mile on either side, and, finding the earth connections of the telephone wires at the exchange, and at the subscribers', pass up into those wires and the telephone instruments, and by reason of their great force and volume substantially destroy the utility of the telephone plant. This interference can be obviated in only one way, viz. by a metallic return circuit for one of the plants. The only metallic return circuit for a railway yet discovered is that known as the "doubletrolly" system. The double-trolly system is more expensive than the single-trolly system, and inferior in other respects for the operation of single-track railways. A recent invention, known as the "McLeuer Device," has been proved by experience to be an effective remedy for the disturbances caused by conduction. This McLeuer device consists of a large copper wire, supported on poles, with which the outgoing telephone wires are connected at both ends, and which serves as a return circuit instead of the earth. The McLeuer device is the most effective and least expensive remedy that has been discovered for the disturb