profit à prendre.

of oil or gas under the lease authorizes the lessee to sever the mineral from the soil, and after he has done this, and not before, he acquires the ownership of the thing severed."

This decision has been repeatedly followed, and the decisions were reviewed and the law restated in National Supply Co. v. McLeod, 116 Kan. 477, 227 P. 350. This law of property is the same as the Indiana law concerning oil and gas. Townsend v. State, 147 Ind. 624, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477.

In the case of Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 S. Ct. 576, 44 L. Ed. 729, a statute of Indiana was challenged on substantially the same constitutional grounds as are urged here. That statute prohibited the owner from permitting waste of gas or oil from wells drilled on his own property. It was strenuously contended that since the oil and gas was the property of the owner, he had a right to waste it if he cared to do so. The Supreme Court of Indiana held that the law was constitutional, and its decision was affirmed by the Supreme Court of the United States. In a unanimous opinion, written by Mr. Justice White, the court said: "Thus it is apparent, from the admitted facts, that the oil and gas are commingled and contained in a natural reservoir which lies beneath an extensive area of country, and that as thus situated the gas and oil are capable of flowing from place to place, and are hence susceptible of being drawn off by wells from any point, provided they penetrate into the reservoir. It is also undoubted that such wells, when bored from many points in the superincumbent surface of the earth, are apt to reach the reservoir beneath. From this it must necessarily come to pass that the entire volume of gas and oil is in some measure liable to be decreased by the act of any one who, within the superficial area, bores wells from the surface and strikes the reservoir containing the oil and gas. And hence, of course, it is certain, if there can be no authority exerted by law to prevent the waste of the entire supply of gas and oil, or either, that the power which exists in every one who has the right to bore from the surface and tap the reservoir involves, in its ultimate conception, the unrestrained license to waste the entire contents of the reservoir by allowing the gas to be drawn off and to be dispersed in the atmospheric air, and by permitting the oil to flow without use or benefit to any one. These things being lawful, as they must be if the acts stated, cannot be controlled by law, it

Does the peculiar character of the substances, oil and gas, which are here involved, the manner in which they are held in their natural reservoirs, the method by which and the time when they may be reduced to actual possession or become the property of a particular person, cause them to be exceptions to the general principles applicable to other mineral deposits, and hence subject them to different rules? True it is that oil and gas, like other minerals, are situated beneath the surface of the earth, but except for this one point of similarity, in many other respects they greatly differ. They have no fixed situs under a particular portion of the earth's surface within the area where they obtain. They have the power, as it were, of self-transmission. No one owner of the surface of the earth, within the area beneath which the gas and oil move, can exercise his right to extract from the common reservoir, in which the supply is held, without, to an extent, diminishing the source of supply as to which all other owners of the surface must exercise their rights. The waste by one owner, caused by a reckless enjoyment of his right of striking the reservoir, at once, therefore, operates upon the other surface owners."

[21] The court then stated that the Indiana decisions governed as to the nature of property in the oil and gas. The court further said that, in the absence of regulation by law, every owner of the surface may prosecute his drilling and may reduce to possession all or every part of the oil deposit underneath the surface without violating the rights of other surface owners. This also is the law of Kansas. The court then distinguished oil and gas from animals feræ naturæ, and stated, while the public could be excluded from any appropriation of animals feræ naturæ, such general prohibition could not be had as to oil and gas. The court said:

"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. 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 to 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 prevent ing waste. 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 oth

ers.

"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. To illustrate by another form of statement, the argument is this: There is property in the surface owners in the gas and oil held in the natural reservoir. Their right to take cannot be regulated without devesting them of their property without adequate compensation, in violation of the Fourteenth Amendment, and this, although it be that if regulation cannot be exerted one property owner may deprive all the others of their rights, since his act in so doing will be damnum absque injuria. This is but to say that one common owner may devest all the others of their rights without wrongdoing, but the lawmaking power cannot protect all the owners in their enjoyment without violating the Constitution of the United States."

This decision has been widely quoted and twice cited by the Supreme Court of the United States as direct authority to support the power of the state to regulate the appropriation of oil and gas from a common pool.

In Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160, a statute of New York was challenged which prohibited any pumping from a certain type of wells that produced a gas-charged mineral water. The statute was predicated upon the proposition that, as to such fluids underneath the earth's surface, "there is a coequal right in all the surface owners to draw upon it." The Supreme Court sustained the statute and said:

"It is to prevent or avoid the injury and waste suggested that the statute was adopted.

Thus these pumping operations generally result in an unreasonable and wasteful depletion of the common supply and in a corresponding injury to others equally entitled to resort to it. It is to correct this evil that the statute was adopted, and the remedy which it applies is an enforced discontinuance of the excessive and wasteful features of the pumping. It does not take from any surface owner the right to tap the underlying rock and to draw from the common supply, but, consistently with the continued existence of that right, so regulates its exercise as reasonably to conserve the interests of all who possess it. That the State, consistently with due process of law, may do this is a necessary conclusion from the decision in the case cited. But were the question an open one we still should solve it in the same way."

In Walls v. Midland Carbon Co., 254 U. S. 300, 41 S. Ct. 118, 65 L. Ed. 276, a statute of Wyoming prohibited the extraction of any natural gas, by a surface owner, unless it was so used, after recovery, that all its heat units were utilized. Its application was confined to a 10-mile limit from any city or industrial plant. The statute seriously damaged the plant of the plaintiff, which had cost $375,000, and property of a pipe line company of a value of $95,000. This property had to be either abandoned or moved. The purpose of the statute was declared to be for "the protection and conservation of the supply of natural gas." The law was held to be a valid exercise of the police power. The court referred to Bacon v. Walker, 204 U. S. 311, 27 S. Ct. 289, 51 L. Ed. 499, and a statute there involved which regulated the use by individuals of the public domain. The court then said:

The court further said: "The determining consideration is the power of the state over, and its regulation of, a property in which others besides the companies may have rights, and in which the state has an interest to adjust and preserve; natural gas being one of the resources of the state. And in this consideration it is more important to consider, not for what a particular owner uses the gas, but the proportion of his use to that of others, or, it may be, the prevention of use by others."

[22] These decisions leave not the slightest doubt that the state has the power to regulate the appropriation of oil or gas from a common pool, on the ground of common ownership. The right to regulate the number of wells drilled in a given area has also been sustained in the case of Oxford Oil Co. v. Atlantic Oil & Producing Co. (D. C. Tex.) 16 F.(2d) 639. In this case the statute of Texas was sustained which vested with the Railroad Commission of that state the power to "establish rules and regulations for the drilling of wells and preserving a record thereof, and it shall be its duty to require such wells to be drilled in such manner as to prevent injury to the adjoining property, and to prevent oil and gas and water from escaping from the stratas in which they are found into other stratas, and to establish rules and regulations therefor." (Laws 1919, Tex., c. 155, art. 3.)

Legislation looking to the protection and conservation of oil and gas, because of its value as an asset of the state, has been common in the oil states for half a century. While all of it has not been tested in the courts, none of it, except the Oklahoma and Indiana statutes forbidding transportation out of the state, has been held invalid as far as I am advised. Among such statutes are: Acts Pa., 1878 (P. L. p. 56; Pa. St. 1920, §§ 16256-16258), requiring the capping of

Several states have given commissions power to regulate the drilling of wells, and the production therefrom. By reference, the rules and regulations of the Bureau of Mines or the Secretary of the Interior, adopted for wells on government land, are adopted. New Mexico, Laws 1925, c. 121; Wyoming, Laws 1921, c. 157; Montana, Laws 1925, c. 56.

These are but illustrative of the proposition that the states have long exercised their right to conserve this asset. The Oxford ordinance may not be a conservation ordinance, for it does not appear that the drilling of an excessive number of wells depletes the total supply recovered. A question perhaps more economic than legal is presented of whether a state might treat the net value of its oil-that is, its value less the cost of recovery-as the asset to be conserved, as well as the physical oil, or whether, since excessive drilling produces so-called "distress" gasoline, which depreciates its value in dollars, the state might treat its value as an asset-questions unnecessary now to explore. It seems clear that on two grounds at

least that the number of wells has a direct bearing on the public problems of a community, and that the state can regulate the appropriation of this peculiar mineral for the protection of that part of the public enjoying a common ownership thereof-the power of the state to regulate "town lot" drilling, is clear. If the power exists in the state to regulate town lot drilling, two questions yet remain: Has the state delegated that power to cities of the third class? and is the ordinance reasonably adapted to the needs?

[23] Section 15 401, R. S. Kan. 1923, grants cities of the third class the power to pass such ordinances as it shall deem expedient "for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect"; and by section 15-440, R. S. Kan. 1923,

cities of the third class are empowered to pass ordinances "for the maintenance of the peace, good government and general welfare of the city, and its trade, commerce and manufactures." Section 12-106, R. S. Kan. 1923, grants to cities of the third class the right to "grant permits or make contracts with persons or corporations to mine coal, oil or gas within the limits of said city, under such restrictions as shall protect public and private property and insure proper remuneration for such grants: Provided, that no franchise, right of way or privilege of any character whatever shall be granted for a longer period than twenty years." The above statutes confer authority on the cities of the third class to pass such an ordinance as the one involved here.

[24, 25] There remains the question of whether this ordinance is reasonably adapted to the situation. Very generally speaking, the ordinance undertakes to provide that but one well shall be drilled in a city block in a certain part of the city; that that well shall be drilled by the lessee who holds leases for the larger amount of acreage within the block; that any lessee must agree to drill promptly, and as to the owners of property not under contract with the driller it gives the option of participation in the expense of the well and a proportionate share of all the oil lifted by the well; or, if the owner does not care to embark in the drilling business, it gives to the owner the usual royalty of one-eighth of all the oil or gas produced from under his property. Mutual bonds are required of the driller and the owner who exercises the option to participate in the drilling. If town lot drilling is to be regulated, counsel for plaintiffs have not advised the court of any fairer method of handling the situation. It is conceivable that it might have been provided that owners not participating in the lease should, in addition to their one-eighth royalty, have had a proportionate interest in any bonuses that might have been paid for other leases in the same block by the operator.

Granted, however, the reasonableness of the provisions in general, the ordinance is not invalid because some better or more scientific provision might be suggested by court or counsel. "A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160. The conclusion follows that the

ordinance in its general provisions is reasonably adapted to the situation and is valid.

Specific complaint is made as to particular sections. Similar specific complaints were directed at the zoning ordinance in the case of Euclid v. Ambler Co., supra, and the Supreme Court of the United States refused to deal with them. The court dealt with the main question of whether the ordinance in its general aspect was constitutional and declined to go into the particular provisions and said:

"Under these circumstances, therefore, it is enough for us to determine, as we do, that the ordinance in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them."

Some of the particular complaints alleged in the instant case appear to grow out of a strained construction of the ordinance. It is urged that a landowner is ineligible to apply for a permit. Since the landowner plaintiff has not been denied a permit, the question does not arise; but it seems that this contention is predicated upon a forced construction of isolated phrases, which a reading of the entire ordinance does not justify.

[26] It is further argued that a landowner who has made a lease cannot receive any royalty, if his lessee is not the successful applicant for a permit. This is incorrect. This case, and this opinion, apply only to lessors or lessees under a lease made after the ordinance was effective. As to leases made before the ordinance, other questions, under the impairment clause of the Constitution, would arise, not considered here. As to leases made after the ordinance, the lessee knew that unless he procured a permit he could not perform his covenant to diligently develop, expressed in some leases and implied in all, and the essential consideration of the lease fails. This contention is predicated upon the obligation of the permittee, to "deliver to the credit of each of such owners whose land shall not be under lease" the prescribed royalty. Elemental rules of construction would read into this phrase its obvious meaning, to wit, "whose land shall not be under lease to the permittee," mentioned in the same sentence.

[27] Further complaint is made that the ordinance requires an owner to enter into a partnership contract with the driller. It does not require; it permits; and the relation resulting is not a partnership. It seems fair that a single lot owner should have the

option of participating in the gamble involved in drilling into an oil pool under his own ground. Counsel suggest no better method of giving him that option. It is also urged that the ordinance is indefinite, and does not make clear what acts are punishable. When some person is charged with violating an alleged obscure provision will be time enough to determine that. Provision as to application fee, bonds, and other details have been urged and considered; in my opinion, none of them is fatal.

[28] The bill is not clear whether the well drilled by the Ramseys on their own lots was commenced prior to the effective date of the ordinance. The bills are drawn with particularity and skill in other respects, and the presumption is indulged that such well was commenced after the ordinance. If substantial expenditures had been made on a well prior to the ordinance, it is doubtful whether section 1 of the ordinance applies; if construed as applicable, its constitutionality is a question not necessary now to determine. If this well in fact was commenced before the ordinance, that fact can be set out by appropriate amendment.

A decree will be drawn, dismissing both bills, with costs to the defendants; the restraining order will be discharged, and exceptions allowed; the decree may provide for a stay for such reasonable time as counsel may deem necessary for the perfection of appeal.

It is so ordered.

In re BUCHANAN.

erty, and natural products of the soil, such as grass and trees with growing fruit, which are part of the realty.

4. Crops 7-Severance of growing crops may be implied by sale on execution or assignment for benefit of creditors, which passes growing crops to assignee.

Severance of growing crops may be implied, as by sale of the crop on execution or an assignment for benefit of creditors, which passes growing crops to the assignee.

5. Landlord and tenant 326(2)-Owner has no leviable interest in crops grown on shares until division.

Where crops are grown by tenant on shares, owner has no leviable interest until division. 6. Crops 7-Bankruptcy of owner of land effects implied severance of growing crops.

Bankruptcy of owner of land on which are growing crops effects an implied severance of the crops, which pass to the trustee as personalty, and may be separately sold.

In Bankruptcy. In the matter of Andrew Burdett Buchanan, bankrupt. On review of order of referee. Reversed.

James W. Hutchison, of Butler, Pa., for claimant.

James M. Galbreath, of Butler, Pa., for trustee.

THOMSON, District Judge. A question has been certified to the court, involving the ownership of a crop of growing corn as between the trustee in bankruptcy and the purchaser of the land at trustee's sale.

The bankrupt presented his petition and was adjudged a bankrupt, on September 3, 1926. At the time of the adjudication, he was the owner of a tract of land in Butler

24, 1928.

No. 12933.

1. Crops 1-Growing crops are "personal property."

Growing crops are "personal property," which may be levied on and sold on execution, and on death of the owner of the land they pass to his personal representative.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Personal Property.]

2. Crops 5-Conveyance of land before severance of growing crops passes title to crops. Conveyance of land on which are growing crops, made before the same have been severed, passes title to the crops.

3. Crops -While planted and cultivated crops are personalty, natural products, as grass and fruit from trees, are part of the realty.

There is a distinction between crops produced by human labor, which are personal prop24 F. (2d)-351⁄2

an overdue mortgage, and on which land there was a field of growing corn. On August 19, 1926, judgment was entered on the bond accompanying the mortgage, and on September 1, 1926, execution was issued thereon for the sale of the land. The trustee in bankruptcy sold the growing crop to Ray P. Wilson, the mortgagee, for $300, the latter paying the purchase price to the trustee. Subsequently Wilson purchased the land on which the corn was growing at trustee's sale. Afterwards he presented his petition to the referee, praying for the return of the $300 which he had paid for the growing crop. His claim appears to be based on the theory that the crop of corn was part of the land, and that the judgment entered on the bond, the lien of which related back to the lien of the mortgage, created a lien on the growing crop, and that, had the real estate been sold at sheriff's sale on his execution, he would