mining in the ordinary sense of that term; that is, by underground and not by open workings. The grantor, Baldwin, owned the fee of the land. He did not part with his general title to the surface, but he granted special rights therein for the purpose of effecting the grant of the 'minerals and ores.' He accompanied these words with a specification of the rights granted, that is to say, rights essential to and connected with usual mining operations, and in respect to the surface he granted 'sufficient land to erect suitable buildings for machinery, and other buildings necessary and usual in mining and raising ores.' The evidence is, and the fact would be sufficiently manifest in the absence of affirmative proof, that granite can only be obtained by open quarrying to the destruction of the surface so far as the granite may be uncovered. We think the reasonable construction of the grant limits the rights of the grantee to minerals obtained by underground working, and, as granite is not so obtained, it did not pass under the conveyance of 1871."

e. Gypsum.

In White v. Miller (1910) 200 N. Y. 29, 140 Am. St. Rep. 618, 92 N. E. 1065, wherein it appeared that a grantor excepted "mines and minerals" from the conveyance, it was held that the term included gypsum. The court pointed out that while the conjunction of "mines and minerals" evidenced the intent to except only those inorganic. substances which might be taken from the land by the processes of mining, gypsum might be mined, although it appeared that it had been worked by open quarrying.

To the same effect, and following White v. Miller, see French v. Lansing (1911) 73 Misc. 80, 132 N. Y. Supp. 523.

1. Limestone.

In Brady v. Smith (1905) 181 N. Y. 178, 106 Am. St. Rep. 531, 73 N. E. 963, 2 Ann. Cas. 636, reversing (1903) 88 App. Div. 427, 84 N. Y. Supp. 1119, it was held that the exception of "all mines and minerals which may be found on the above piece of land, with 17 A.L.R.-11.

the right of entering at any time with workmen and others to dig and carry the same away," was not broad enough to include a bed of limestone and its open quarrying. The court said: "The first point to be observed is that the word 'minerals,' as used in this reservation, is coupled with 'mines' by the conjunctive 'all mines and minerals.' This shows that the grantor had in mind the reservation of mines and their contents, to wit, 'minerals.' This is further emphasized by the word 'found,'-'which may be found on the above piece of land.' It appears in the findings that immense boulders and ledges of limestone crop out on the surface of these premises, and it would be a strained and unnatural construction to assume that the language commented upon above refers to stone lying open to the view, and that the same may be removed by open quarrying and blasting, destructive of the surface, under the reservation of 'all mines and minerals which may be found.' . . . The reservation must be read as referring to minerals in mines found, with the right to enter at any time with workmen and others to dig and carry the same away. That is, dug out of the earth by means of mines and mining. The word

'dig' has a technical meaning, when the context is considered, and does not apply to open quarrying and blasting." To the same effect, see White v. Miller (1910) 200 N. Y. 29, 140 Am. St. Rep. 618, 92 N. E. 1065, wherein it was held that a deposit of limestone passed with the surface under an exception of "mines and minerals."

In Listowel v. Gibbings (1858) 9 Ir. C. L. Rep. 223, the court said: "I do not deny that, if it appeared clearly to be the intention of the parties, to be collected from the instrument, that limestone quarries should pass by the words 'mines and minerals,' they might pass; but words are to be understood in their natural and usual meaning, unless there be a clear indication that they are, in a particular case, intended to have a more or less extended signification. Usually, 'mine' imports. a cavern or subterraneous place, con

taining metals or minerals, and not a quarry; and 'minerals' mean ordinarily metallic fossil bodies, and not limestone." See also Darvill v. Roper (1855) 3 Drew. 294, 61 Eng. Reprint, 915, 24 L. J. Ch. N. S. 779, 3 Week. Rep. 467, 10 Mor. Min. Rep. 406; Fishbourne v. Hamilton (1890) Ir. L. R. 25 Eq. 483.

The court, in Brown v. Chadwick (1857) 7 Ir. C. L. Rep. 101, distinguished a mine and a quarry as follows: "A mine is a place where the substratum is excavated, but the surface is unbroken; whereas in a quarry the surface is opened, and the material -in the present case limestone-is exposed and raised."

g. Marble.

The sublease involved in Phelps v. Church of Our Lady (1902) 53 C. C. A. 407, 115 Fed. 882, 22 Mor. Min. Rep. 233, excepted and reserved the mines and minerals as specified in the original conveyance. The original deed contained a provision "excepting and reserving therefrom unto the parties of the first part, their heirs and assigns, forever, all mines and minerals which may be found on the above piece of land, with the right of entering at any time with workmen and others to dig and carry the same away." The court held that the sublessee had no right or title to the marble on the demised premises.

But in Deer Lake Co. v. Michigan Land & Iron Co. (1891) 89 Mich. 180, 50 N. W. 807, the conclusion was reached that, because iron was the only valuable mineral known to exist in that region at the time of the execution of the deed, a reservation of "minerals" included only minerals in common use, and known as such, and would not include "marble." The court, adopting the language of the circuit judge, said: "It seems proper, in cases like the present, to give the language its natural and common meaning, such as the contracting parties must have contemplated and understood under the circumstances surrounding the transaction. At that time, no marble or serpentine was known to exist in the country. The only valuable mineral found in that

portion of the country was iron. In a subsequent portion of the same deed are elaborate provisions as to delivery of iron ore. Manifestly the principal consideration in the minds of the parties was iron ore. At most, it seems to me they could have only meant, and a natural construction would only cover, mines and ores of metals and minerals in common use, and commonly known as such, and would not include quarries or deposits of marble, serpentine, or other building material, although they do belong to the mineral kingdom."

h. Oil and gas.

In a Federal case from the eastern district of Kentucky (Lovelace v. Southwestern Petroleum Co. (1920) C. C. A., 267 Fed. 513, affirming (1919) 267 Fed. 504) it was held that a reservation of "a one-half undivided interest in all the minerals in, on, or under the land embraced by this conveyance," including petroleum and natural gas, the court saying that the language of the deed showed that the parties contemplated nothing less general than all substances legally cognizable as minerals.

In Dingess v. Huntington Development & Gas Co. (1921) — C. C. A. —, 271 Fed. 864, a case originating in the southern district of West Virginia, the court held that under the settled law of West Virginia natural gas was included in the reservation to the grantor of "all the minerals, mineral substances, and oils of every sort and description, . . . with the privilege of mining, digging, and excavating for said minerals, mineral substances, and oils, and of boring and pumping for said oils, and of erecting and maintaining thereon all the necessary buildings, oil tanks, machinery, and apparatus for working and operating all mines, pits, excavations, and oil wells which now are or may be hereafter opened, worked, and operated" on any part of the real estate, and "for storing and taking proper care of the products. The court thought that this conclusion was the more reasonable because of the relation in which the parties stood at the time the

deeds in question were made, it appearing from the recitals therein that the plaintiffs' predecessors in title had instituted ejectment proceedings against the defendants or their grantors, and a compromise was reached by which the plaintiffs' grantors conveyed to the defendants, or to those under whom they claim, the surface of the land of which they were then in possession, reserving the minerals to themselves. The court further thought that a contrary conclusion was not required by the principle declared in ROCK HOUSE FORK LAND Co. v. RALEIGH BRICK & TILE Co. (reported herewith) ante, 144, to the effect that the term "mineral" is not a definite one, capable of a definition of universal application, but is susceptible of limitation according to the intention of the parties, and that regard must be had not only to the language of the deed, but to the relative position of the parties interested, and the substance of the transaction. In reply to the contention of defendants that, in order to make clear the "relative position of the parties interested" at the time the deeds were made, they were entitled to show that up to that time natural gas had never been commercially produced in that portion of the state, the court said that there were authorities which either expressly or by necessary implication so hold citing Detlor v. Holland (1898) 57 Ohio St. 492, 40 L.R.A. 266, 49 N. E. 690; but that the inference which might be drawn from the facts sought to be established were too uncertain and even contradictory to make the evidence helpful.

So, in Scott v. Laws (1919) 185 Ky. 440, 13 A.L.R. 369, 215 S. W. 81, wherein it appeared that the grantor conveyed "all of the mineral right and coal privileges, and rights of way to and from said minerals and coal privileges; also the right to search for all undiscovered minerals and coals upon the lands hereinafter described," the court said: "Since oil and gas are minerals, and there is nothing in the language of the deed in question which shows that the parties contemplated something less general than all substances legally

Likewise, in Murray v. Allred (1897) 100 Tenn. 100, 39 L.R.A. 249, 66 Am. St. Rep. 740, 43 S. W. 355, 19 Mor. Min. Rep. 169, it was held that a reservation of "all mines, minerals, and metal in and under said land" included petroleum and natural gas.

In Weaver v. Richards (1909) 156 Mich. 320, 120 N. W. 818, the court, following Murray v. Allred (Tenn.) supra, upheld an instruction to the effect that the use of the words "mineral" or "minerals," without any qualification, would include both oil and gas, and therefore that a reservation of minerals in place in the earth would include both gas and oil, coupled with an instruction that a reservation of such minerals would imply the right to prospect, explore for, and remove these minerals.

The plaintiff in Barker v. CampbellRatcliff Land Co. (1917) 64 Okla. 249, L.R.A.1918A, 487, 167 Pac. 468, contended that the words "all mineral rights" did not cover oil and gas. It appearing that there had been a development of oil in the vicinity of the land prior to the execution of the deed, and also that it was expressly understood between the original grantee and the defendant company that oil and gas rights were to be excepted, the court held that the term included both oil and gas.

In Sult v. A. Hochstetter Oil Co. (1908) 63 W. Va. 317, 61 S. E. 307, the bare reservation of "all minerals in and under certain lands" was held to include oil and gas.

So, in Calhoun v. Ardis (1918) 144 La. 311, 80 So. 548, it was held that the retention of "all the mineral rights under said property, and with the right of entry upon said property for the development of same," included the oil and gas that might be beneath

the surface of the soil. In that case it was argued that it was legally impossible to sell land separate from the oil and gas that might be beneath it, because it was not susceptible of private ownership until reduced to possession.

Having due regard to the intention of the parties as indicated by the language used in the instrument, and by the facts and circumstances surrounding them at the time of its execution, the term "minerals" has, in some cases, been held not to include oil or gas. McKinney v. Central Kentucky Natural Gas Co. (1909) 134 Ky. 239, 120 S. W. 314, 20 Ann. Cas. 934; Detlor v. Holland (1898) 57 Ohio St. 492, 40 L.R.A. 266, 49 N. E. 690; Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co. (1911) Tex. Civ. App. 137 S. W. 171; Horse Creek Land & Min. Co. v. Midkiff (1918) 81 W. Va. 616, 95 S. E. 26.

Thus, in McKinney v. Central Kentucky Natural Gas Co. (Ky.) supra, it was held that natural gas did not pass under a conveyance of "all minerals such as coal, iron, silver, gold, copper, lead, bismuth, antimony, zinc, or any other mineral of any marketable value," because the words "any other minerals of any marketable value" were to be read in connection with the things previously named, and should be confined to things of that character. In that case, the court pointed out that the granting clause, which included "right of way to and from all the mines or openings, also the right to open mines for and develop the same, with a sufficiency of timber for mining purposes and the construction of cabins for miners," was specific as to coal, and that the easements granted were not applicable to the production of oil.

Likewise, in Detlor V. Holland (1898) 57 Ohio St. 492, 40 L.R.A. 266, 49 N. E. 690, a conveyance of all the coal, iron ore, fire clay, and other valuable minerals, together with the right "of mining and removing such coal, ore, or other minerals,

with the right to the use of so much of the surface of the land as may be necessary for pits, shafts, platforms,

drains, railroads, switches, sidetracks, etc., to facilitate the mining and removal of such coal, ore, or other minerals, and no more," was held not to include oil or gas. The court said: "The incidents here granted are all such as are peculiarly applicable to the mining of minerals in place, and not to such as are in their nature of a migratory character, such as oil and gas. Nothing is said about derricks, pipe lines, tanks, the use of water for drilling, or the removal of machinery used in drilling or operating oil or gas wells. There is nothing to show that it was the intention of the parties that oil should be included in the word 'minerals,' and the easements granted in connection with the mining right are not applicable to producing oil, and show that oil was not intended to be included in the conveyance. If it had been, apt words would have been used to express such intention."

In Barnard-Argue-Roth-Stearns Oil & Gas Co. v. Farquharson [1912] A. C. (Eng.) 864, Ann. Cas. 1913B, 1212, it appeared that at the date of the conveyance in question natural gas was of no commercial value, but, on the contrary, was regarded as a dangerous and destructive element to be got rid of as best it could be. The court held that it was not within a reservation of "all mines and quarries of metals and minerals, and all springs of oil in or under the said land, whether already discovered or not, with liberty of ingress, egress, and regress to and for the said company, their successors, lessees, licensees, and assigns, in order to search for, work, win, and carry away the same." The court pointed out that "the words 'all mines and quarries of metals and minerals,' coupled with the words 'search for, work, win, and carry away the same," did not "seem to be applicable to a thing of the nature of this gas, obtainable in the way it is obtained."

In Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co. (1911) - Tex. Civ. App., 137 S. W. 171, it appeared that a right of way was conveyed for the purpose of opening and maintaining a railroad, and the grantee was to have the right to take and use all the

timber, earth, stone, and minerals, so long as the right of way was used for railroad purposes, and also that the only consideration for the conveyance was the benefit due from the construction of the railroad. The deed was held to convey only the right of way or easement over the land, and to convey the right to use the surface minerals which would be useful in constructing and maintaining a railroad, and not to confer any right on the railroad company to mine for oil and minerals under the surface, especially such fluid minerals as oil and gas. The court said: "The right to explore for and take from below the surface, oil, coal, iron, and such other minerals as might be there found at great depth, provided only they might be used for the purposes referred to, is utterly inconsistent with the substantial purpose of the grant as expressed in the deed."

In Carothers v. Mills (1921) - Tex. Civ. App. —, 232 S. W. 155, the question as to the intention to include oil and gas in the reservation of "all mineral rights on said land, and the right and privilege to work the same at any time he (the grantor) desires," was held for the jury, it being shown that oil and gas were practically unknown in the section where the parties lived and where the land was situated at the date of the deed (1899), and there being evidence tending to show that not only the grantees did not intend that the reservation should include oil and gas, but that the grantor did not so intend, and some evidence, even, that the grantor intended only to reserve gold, silver, and copper. The court conceded that it must be regarded as settled in Texas that oil and gas are minerals, but that it did not necessarily follow that the term must be so construed as a matter of law, despite the intention of the parties, especially in relation to a deed made in 1899. The court realized that the authorities were not in harmony on the point, and that its conclusion was apparently in conflict with the holding of the court of civil appeals for the second district in the case of Luse v. Boatman (1919) — Tex.

Civ. App., 217 S. W. 1096, supra, in which a writ of error was refused by the supreme court, but did not think that the conflict was a real one, and observed that the evidence in that case as to the intention of the parties was very meager. The court in the Carothers Case, in reversing a judgment in favor of the grantor and remanding the case, thought it proper to say that it devolved on the plaintiffs (grantees) to show that the parties mutually understood that the phrase "all mineral rights" should not include oil and gas, or that the grantors, at least, so intended, it not being sufficient to show that the grantees alone had no intention that the oil and gas should be reserved.

In Horse Creek Land & Min. Co. v. Midkiff (1918) 81 W. Va. 616, 95 S. E. 26, it was held that oil and gas were not included in a grant "excepting and reserving all the minerals, coals, together with all the necessary rights of way of ingress and egress to and from, over, through, or under said premises to mine, excavate, and transport the same, excepting a sufficiency of said coals for domestic use." The court said: "If only the term 'minerals' had been employed, there could then be no question of the grantor's purpose to reserve all minerals. But he used the word 'coals' immediately following minerals, and it is to be presumed he used it for some purpose, and what could he have intended if his purpose was not to limit or restrict the application of the more comprehensive term? Coal is a mineral, and was included in the more general term, and therefore, logically speaking, he could have employed the term 'coals' for no other purpose than to define more particularly the thing reserved. The term 'coals' is here used to qualify the term just preceding it in the sentence,' and is what grammarians call a noun in apposition to the noun it describes or limits, the two meaning the same thing or being used to designate a single object. The rest of the clause which follows reflects no light on this point. The fact that in one place the thing reserved is referred to as 'the same,' and in another place as 'said