in the sand rocks in search of an opening through which they may escape from the pressure to which they are subject. This is probably true. It is one of the contingencies to which this species of property is subject. But the owner of the surface is an owner downward to the centre, until the underlying strata have been severed from the surface by sale. What is found within the boundaries of his tract belongs to him according to its nature. The air and the water he may use. The coal and iron or other solid mineral he may mine and carry away. The oil and gas he may bring to the surface and sell, in like manner to be carried away and consumed. His dominion is, upon general principles, as absolute over the fluid as the solid minerals. It is exercised in the same manner and with the same results. He cannot estimate the quantity in place of gas or oil as he might of the solid minerals. He cannot prevent its movement away from him towards an outlet on some other person's land, which may be more or less rapid, depending on the dip of the rock or the coarseness of the sand composing it; but so long as he can reach it and bring it to the surface, it is his absolutely, to sell, to use, to give away, or to squander, as in the case of his other property. In the disposition he may make of it he is subject to two limitations. He must not disregard his obligations to the public. He must not disregard his neighbor's rights. If he uses his product in such a manner as to violate any rule of public policy, or any positive provision of the written law, he brings himself within the reach of the courts. If the use he makes of his own, or its waste, is injurious to the property or health of others, such use or waste may be restrained, or damages recovered therefor; but, subject to these limitations, his power as an owner is absolute until the legislature shall, in the interest of the public as consumers, restrict and regulate it by statute." Wood Co. Petroleum Co. v. W. Va. Transportation West Virginia. Co., 28, 210 (1886). Natural gas is incapable of being absolute property, and is the subject of qualified property only, belonging to him who first appropriates it. A landlord leased to his tenant certain premises for the purpose of taking oil therefrom at a fixed royalty. The tenant opened a well which produced both oil and gas. The former in small quantities was pumped from the well, for which the royalty was paid, and the latter in large quantities issued by its own force from the well, and was separated by the tenant, and by means of pipes conducted beyond the leased premises and sold or appropriated by the tenant for his own use. In an action brought by the landlord for an account and the value of the gas, the tenant was held not accountable. If the tenant had attempted to use the land to produce gas alone, under the terms of the lease his term would have been forfeited; or if the gas had not escaped of its own force, he would not have been permitted to pump it without the lessor's consent. Williamson v. Jones, 39, 231 (1894). Oil in place among the strata of the earth is a part of the inheritance. An unlawful removal thereof is a disherison of him in remainder constituting waste, which will be enjoined by a court of equity. Petroleum Co. v. Transportation Co., 28 W. Va. 210, does not lay down a different doctrine, even as to natural gas, so long as it is confined in the strata where it is found. It is only when it escapes out of the possession of the owner that the right of property is gone. CHAPTER II. PROPERTY AND RIGHTS IN MINERALS WHERE THE TITLE TO THE MINERALS OR THE RIGHT TO TAKE THEM IS VESTED IN SOME ONE WHO IS NOT THE OWNER OF THE SOIL. I. Estate in Fee Simple in Minerals in II. Lease of Land with Mining Rights. V. Oil and Gas Leases. A. Lease of Lands with Privilege of digging and boring for Oil or Gas. B. Incorporeal Rights and Licenses relating to the Extraction of Oil and Gas. VI. Reservations and Exceptions. THOUGH minerals undisturbed, or in place, are a part of the freehold, and as such usually belong to the owner of the soil, they are capable of separate ownership and distinct possession. When there is such a severance of estates, the minerals are real estate constituting a separate corporeal hereditament, capable of distinct inheritance and conveyance. There may be a further separation of the different strata, or of minerals of different kinds, each of which may have a different owner and constitute a distinct estate in land. Moreover, the grant of the permanent or absolute interest in the minerals effects such a severance, and is equivalent to a conveyance in fee of the estate in the minerals separate from that of the owner of the soil. The owner of land may likewise create an interest in the min erals distinct from his own ownership of the land by the creation of a right to take the minerals, himself retaining the property in them until they are severed and in the possession of the grantee. Thus there arise two clearly distinguished classes of the mineral estate: First, the absolute corporeal ownership of the minerals in place; and second, the incorporeal right or license to mine for the minerals in the earth. Lying between these is the right and property of one who holds land under a lease for years for the purpose of or with the privilege of mining. The instruments creating all of these interests in real estate are indiscriminately called "Mining Leases." I. ESTATE IN FEE SIMPLE IN MINERALS IN PLACE. A conveyance of all the minerals, or a defined part or kind thereof, in or under a tract of land, passes an estate therein in fee. If the description is sufficient to contain the whole of the minerals, it is unimportant whether they be described as such or the conveyance be of the usufructuary rights to them, provided those rights are equivalent to the permanent or absolute ownership. Such an owner has all the rights of an owner of land in fee, with the same remedies to assert and defend those rights and to protect his title. The ownership of the mineral is vested immediately upon the delivery of the conveyance. Minerals in place, then, being land, are conveyed in the same manner, and are subject to the same rules as regards their transfer, as land is. The Statute of Frauds. and the law governing the transfer of interests in real estate are applicable to the transfer of such interests in the minerals. A separate estate in the minerals may be created not only by an affirmative grant, but also by reservation or exception in a conveyance of the land. (See p. 83.) The form of the conveyance is unimportant. It makes no difference that it is called a lease, and that its terms are those for leasing real estate. If it shows an intention to convey all of the specified mineral in the particular land, it effects a sale or absolute conveyance thereof. If the instrument shows such an intent, it is none the less a sale because a term of years is prescribed within which the mineral must be taken out. Nor is the nature of the grantee's estate changed by the fact that he fails to mine during that term. There is in such case a sale to him, not a lease; but a reversion takes place at the end of the term to the grantor. The fact also that the purchase-money depends upon the amount of coal mined is of no moment in determining the nature of the estate. The question is whether all the coal is conveyed; if so, there is a sale thereof. The rather paradoxical result of the above statement that the nature of the estate is unaffected by the limitation of the privileges to a term of years is apparently a fee-simple estate for a term of years. This seems to have deterred some courts from following in terms the rule as laid down in Pennsylvania. It seems, nevertheless, that that position is a necessary one, however it is worked out, and it may be theoretically justified on either of two lines of reasoning, both of which seem to have the support of the court that originally laid down the rule. First, the limitation to a term of years may be regarded as a limitation, not upon the estate, but upon the appurtenant rights, without which the estate will be of no value. Second, the failure to take out all the mineral within the specified term may be treated as a forfeiture of the estate. A limitation of the general doctrine has been made by the Court of Appeals of New York. By that court it is held that it only applies to a case in which the whole body of mineral is considered as of cubical dimensions, and capable of description and separation from the earth above and around it. If, so considered, it is conveyed as it lies in place, a separate estate in fee passes. If, however, the description or the grant is so narrowed or restrained by restrictive provisions that the mineral is not capable of being so considered, the conveyance does not have this effect. A conveyance therefore of all the merchantable coal that will pass a certain screen, and which can be safely, economically, and profitably mined, does not pass a corporeal interest in the coal. And if such a conveyance further contains the usual provision that the consideration shall be a royalty, though with a stipulation for a minimum amount, it is construed in that State to be merely an executory contract, the thing sold and the price to be paid being dependent, it is said, on future conditions. Although this distinction has not been raised in Pennsylvania, it may be fairly inferred from what was said both by counsel and the court in Lillibridge v. Lackawanna Coal Co., 143 Pa. 293, where a conveyance of all the merchantable coal in a certain tract passed a fee in the coal, that the reasoning of the New York court will not be accepted there. Adams v. Ore Knob Copper Co., 7 Fed. 634 (1880). United States. C. C. W. D. N. Car. A conveyance of "all the mineral and metallic interest on the following-described lands passes a fee-simple interest in the minerals and metals, and the privilege of using the land as far as necessary for the specified purpose. Alabama. Williams v. Gibson, 84, 228 (1887). Minerals in place are a part of the freehold, and constitute landed property. They are capable of a possession separate from that of the surface, ! and may form a separate corporeal hereditament which is the subject of a distinct inheritance. Manning v. Frazier, 96, 279 (1880). Minerals in a mine. Illinois. under the soil are real estate capable of being conveyed like other real estate, and when so conveyed, capable of being inherited and conveyed to others. Where the owner of land bargains and sells all the minerals thereunder, and grants to the vendee the right to enter and search for said minerals, and to dig, mine, explore, and occupy with the necessary structures, and to mine and remove the coal, limestone, etc., for which the vendee agrees to pay a stipulated price per ton for the various minerals removed, payable quarterly, the grantor will have a vendor's lien on the minerals not mined and removed, for unpaid purchasemoney, which he may enforce by a sale thereof. The stipulated price is purchase-money of the real estate, not of the minerals removed. It is not a collateral covenant. The payment of so much per ton is only a mode of ascertainment of the purchasemoney, the amount due each quarter depending upon the quantity mined during the preceding three months. The fact that the coal may under the deed be removed and sold does not amount to a waiver of the lien absolutely, but only pro tanto as to the coal so removed. Consolidated Coal Co. v. Peers, 150, 344 (1894). A lease for the full term of twenty-five years of the sole and exclusive right of mining and operating any coal on described tracts of land is not a mere license, and is assignable. "The right granted is not limited to any particular vein or stratum, but extends to all coal under said lands, and it is exclusive of the whole world, including the lessors themselves, and is for the full term of twenty-five years from the date thereof. The law, as we understand it, is that a lease of the right and privilege to mine and take away stone or coal from the lessors' land is the grant of an interest in the land, and not a mere license to take stone or coal." Knight v. Coal Co., 47, 105 (1874). An agreement whereby Indiana. A. bargains, sells, and conveys to B. all the coal, iron, limestone, fire clay and oil in, upon, and under a certain tract of land, granting him the right to enter and search for the said minerals, and when found to remove them, together with all rights and privileges incident to mining, building rights, rights of way, and also the right to remove minerals from adjoining lands "through, over, or under said lands, during the continuance of this agreement," and B. agrees to enter and search for the said minerals, and should he find them in sufficient quantity to justify him to mine them, to pay within ten years five dollars, and yearly thereafter "during the continuance of this agreement a royalty on minerals taken out, B. to have the right of abandoning the lands and mines at any time, is a lease and not a license, and creates an estate at will. Kincaid v. McGowan, 88, 91 (1887). D., who owned Kentucky. a tract of land, conveyed to McG. two parcels within the same, but reserved to himself in the deeds, in the one case "all," and in the other "one-half, of all the mines and minerals in the bowels of the earth," within the boundaries of the parcels conveyed. D. then |