a bad motive will not render that unlawful which is lawful (Chambers vs. Baldwin, 91 Ky., 121; 15 S. W., 57; 11 L. R. A., 545; 34 Am. St. Rep., 165), a man is only allowed to make a reasonable use of those natural supplies which are for the common benefit of all. The gas under the ground may go wherever it will, but the defendants cannot be allowed to draw off the gas from under the plaintiff's lands simply for the purpose of injuring it, for the plaintiff's lands are thus clandestinely sapped, and their value impaired. These principles have often been applied in the case of underground waters, and we see no reason why the same rule should not apply to natural gas.

"The doctrine that an act which is legal itself, and violates no legal right, cannot be made actionable on account of the motive which induced it, has no application, because the acts of the defendants in wasting the gas violated the plaintiff's legal rights. Both the parties drew gas from the same reservoir. It was incumbent on each to exercise his right so as not to injure the other unnecessarily. If one wasted all the gas from the reservoir, there would be nothing left for the other. Every owner may bore for gas on his own ground, and may make a reasonable use of it; but he may not wantonly injure or destroy the reservoir common to him and his neighbor.'

"15

These decisions comprise the law of the subject in the United States, which may be briefly restated thus: Oil and gas when in the strata beneath the surface are a species of property held in common by the whole number of proprietors of the surface under which a given tract of oil- or gas-bearing strata is found; they are not the property of any one of these surface proprietors until they are reduced to possession; each surface proprietor has the exclusive right to seek for and reduce to possession, by boring or otherwise, the deposits of such substance that may be beneath his surface, but such right is subject to the authority of the State to regulate such taking in such manner as may be deemed wise and for the best interests of all of the common owners of the oil and gas;16 under common law principles also, none of the common owners have the legal right to wantonly or maliciously draw off or waste oil or gas, although the wells by which this is attempted may be on their own land.

15 Jones vs. Fount Oil Co., 194, Pa. St., 379; Manj., etc., Co. vs. Ind., etc., Co., 155 Ind. 679 Contra, Hague vs. Wheeler, 157 Pa. St., 324.

16 Del Monte, etc., Co. vs. Last Chance, etc., Co., 171 U. S., 55 (60); Brown vs. Spilman, 155 U. S. 665 (660-670); Brown vs. Vandergrift, 80 Penn. St., 142 (147); Westmoreland etc., Co.'s Appeal, 25 Weekly Notes of Cases (Penn.), 103; Westmoreland, etc., Co. vs. De Witte, 130 Penn. St., 235; Hague vs. Wheeler, 157 Penn. St., 324; Jones vs. Forest, etc., Co., 44 Atl. Rep., 1074; State, etc., ex rel. Corwin vs. Indiana, etc., Co., 120 Indiana, 575; Jamieson vs. Indiana, etc., Co., 128 Indiana, 555; State vs. Indiana, etc., Co., 120 Indiana, 575; Geer vs. Conn., 161 U. S., 519; Lanyon Zinc Co. vs. Freeman, 68 Kan., 691, 75 Kan., 995.

PROPERTY IN BROKEN MINERALS, TAILINGS, ETC.

After a mineral has been broken or severed from the vein or deposit, it is no longer real estate, but personal property and subject to the rules of law respecting personal property." This is true, even if the mineral is not removed from the mine, but lies at the breasts, having been broken down from the working face.

If tailings from a stamp mill or other ore-dressing establishment or mine are abandoned by the owner and allowed to flow down the stream or are deposited on land belonging to other persons, they become the property of the owner of the land on which they may be deposited.18 If they accumulate on vacant or unappropriated land they may be appropriated by the first comer under the provisions of the Placer Act. Perhaps this last statement should be qualified, because the courts, in reality, have not gone farther than to say in relation to such a case:

"Although not a mining claim within the strict meaning of the expression as generally used in this country, still it is so closely analogous to it that the propriety of subjecting the acquisition and maintenance of the possession of it to the rules governing the acquisition of the right of possession to a strictly mining claim at once suggests itself.

"The only value attached to the land results from the precious metals that may be obtained from it. What is the difference how these metals may have been deposited there, so far as a case of this kind is concerned? It is distributed through a certain stratum of earth, which must be dug up and put through a certain milling process, as in the case of any ordinary metalliferous earth. If the land be valuable only for the metal which it may contain, and it is claimed by neither party for any other purpose, the acquisition of title to it should manifestly be governed by the rules ordinarily controlling the acquisition of title or the right of possession to mining claims. We do not pretend to hold the land here in question to be mineral land, but only that it is so clearly analogous thereto that the laws controlling the possession of one should also govern the other." 19

Although in the above case the court does not go farther than to hold that such land with the deposit of tailings thereon could be held by right of possession analogous to the statutory provisions of the mining law, there does not seem to be any good reason

17 Crouch vs. Smith, 1 Md. Ch., 401; Riley vs. Boston Water Power Co., 11 Cush. (Mass.), 11; Lykens Valley, etc., Co. vs. Dock, 62 Pa. St., 232.

18 Jones vs. Jackson, 9 Calif., 237; Rogers vs. Cooney, 7 Nevada, 212

19 Rogers vs. Cooney, 7 Nev., 212 (vols. v, vi, and vii, combined, 873).

why unoccupied public land on which tailings have been deposited and abandoned by the owner should not be subject to location as a placer claim under the provisions of the statute. The nature of the deposits are identical; both are formed by deposition from water; and the fact that the sedimentary matter was added by the operations of man in the one instance and by the operation. of natural forces in the other would not seem to be sufficient to make any difference in the legal status of the deposit resulting therefrom.

TITLE TO UNMINED MINERALS BY THE STATUTE OF LIMITATION

The adverse possession of real property for different periods, ranging from 5 to 20 years according to the State and the circumstances of the case, gives a title to such real property by virtue of the statute of limitation. The question becomes important whether this rule applies where the title to minerals has been severed from the surface title and the minerals are allowed to lie unworked in the earth.

In Massachusetts mineral rights will not be lost by 40 years non-user of the same when the surface owner did not exercise any adverse enjoyment of the mineral rights themselves.20 Also in Pennsylvania it was held that the surface owner cannot acquire any right to reserves of unworked minerals by the statute of limitation 21; but if the surface owner take possession adversely by working or otherwise of the minerals beneath his land the statute of limitation will run in his favor. The question does not appear to have arisen in any other State except South Carolina; and the rule of Massachusetts and Pennsylvania, that possession of the surface for more than the period of the statute of limitation will not give the surface proprietor the right to the minerals beneath, the title of which had been severed from the surface ownership, may be taken as the law on this subject.

In the case of McBee vs. Loftis, 1 Strob. Eq., 90 (S. C.), it is intimated that a right of mining gold would be lost by a non-user of 20 years. It does not explicitly appear in the opinion whether

20 Arnold vs. Stevens, 4 Mass., 106, 35 Am. Dec., 305.

21 Armstrong vs. Caldwell, 53 Pa. St. (3 F. P. Smith), 284; Caldwell vs. Copeland, 37 Pa. St. (1 Wright), 427, 78 Am. Dec., 436; Plummer vs. Hillside, etc., Co., 160 Pa. St., 483, 28 Atl. 853; Algonquin, etc., Co. vs. Northern, etc., Co., 162 Pa. St., 114, 29 Atl., 402; Lulay et al. vs. Barnes, 172 Pa St., 331, 34 Atl., 52.

this was a placer mine or not; but it is stated that the owner being present at the workings on one occasion said to the manager that he "expected complainant had or would give him up the land to plant corn on," so that it was probably a placer, and surface possession decided the matter.

A related question is whether the statute of limitation for bringing actions of trespass to real property applies where the trespass is committed under ground in the course of mining operations. On the surface, the fact of the trespass is open to observation, and the statute runs from the date of the commission of the act. But under ground the trespass is concealed; and the general rule is, that the statute of limitation does not begin to run until the discovery of the trespass or until the time when the same might have been discovered by reasonable diligence.22

In Montana, Ohio, and Utah there are statutory provisions on the subject which, of course, control in these States.

PROPERTY IN METEORITES

The ownership of meteorites, the bodies of mineral, usually metallic iron, which fall from the sky upon the surface of the earth, is one of special interest because it involves a direct legal construction of the theory of the constitution of the universe as expounded in the planetesemal hypothesis, the nebular hypothesis, etc. The first case of this kind of which there is a record in the United States is that of Goddard vs. Winchell, 86 Iowa, 71, 52 N. W., 1124, in which the dispute was to whether the owner of the land was also the owner of a meteorite which fell on his land, or whether it belonged to a third party who had seen it fall and dug it up and sold it to Winchell. This third party dug it up from a depth of three feet below the surface, where it had imbedded itself by the force of the fall. Goddard, the owner of the land, replevied it from Winchell, and the case went up to the Supreme Court of the State, which says in its decision of the

case:

"The subject of the dispute is an aerolite, of about 66 pounds' weight, that 'fell from the heavens' on the land of the plaintiff, and was found three feet below the surface. It came to its position in the earth through natural

22 Lewey vs. H. C. Fricke Coke Co., 166 Penn. State, 536, 31 Atl., 261, 45 Am. St. Rep., 684; Gottshall vs. Langdon, 16 Pa. Super. Ct. Rep., 158; Boyd vs. Blankman, 29 Calif., 19, 87 Am. Dec., 146.

causes. It was one of nature's deposits, with nothing in its material composition to make it foreign or unnatural to the soil. It was not a movable thing 'on the earth.' It was in the earth, and in a very significant sense immovable; that is, it was only movable as parts of the earth are made movable by the hand of man. Except for the peculiar manner in which it came, its relation to the soil would be beyond dispute. It was in its substance, as we understand, a stone. It was not of a character to be thought of as 'unclaimed by any owner,' and, because unclaimed, 'supposed to be abandoned by the last proprietor,' as should be the case under the rule invoked by appellant. In fact, it has none of the characteristics of the property contemplated by such a rule.

"We may properly note some of the particular claims of the appellant. His argument deals with the rules of the common law for acquiring real property, as by escheat, occupancy, prescription, forfeiture, and alienation, which it is claimed were all the methods known, barring inheritance. We need not question the correctness of the statement, assuming that it has reference to original acquisition, as distinct from acquisitions to soil already owned, by accretion or natural causes. The general rules of law, by which the owners of riparian titles are made to loose or gain by the doctrine of accretions, are quite familiar. These rules are not, however, of exclusive application to such owners. Through the action of the elements wind and water, the soil of one man is taken and deposited in the field of another; and thus all over the country, we may say, changes are constantly going on. By these natural causes the owners of the soil are giving and taking as the wisdom of the controlling forces shall determine. By these operations one may be affected with a substantial gain, and another by a similar loss. These gains are of accretion, and the deposit becomes the property of the owner of the soil on which it is made.

"A scientist of note has said that from six to seven hundred of these stones fall to our earth annually. If they are, as indicated in argument, departures from other planets, and if among the planets of the solar system there is this interchange, bearing evidence of their material composition, upon what principle of reason or authority can we say that a deposit thus made shall not be of that class of property that it would be if originally of this planet and in the same situation? If these exchanges have been going on through the countless ages of our planetary system, who shall attempt to determine what part of the rocks and formations, of special value to the scientist, resting in and upon the earth are of meteoric acquisition, and a part of that class of property designated in argument as 'unowned things,' to be the property of the fortunate finder instead of the owner of the soil, if the rule contended for is to obtain? It is not easy to understand why stones or balls of metallic iron, deposited as this was, should be governed by a different rule than obtains from the deposits of boulders, stones, and drift upon our prairies by glacier action; and who would contend that these deposits from floating bodies of ice belong, not to the owner of the soil, but to the finder? Their origin or source may be less mysterious, but they, too, are 'telltale messengers' from far-off lands, and have value for historic and scientific investigation."