5. Punitive damages cannot be allowed for trespass upon oil land and destroying its speculative value, by showing that it is nonproductive, where actual damages cannot be recovered. Damages, § 4 nominal interference with right to drill for oil.

6. One whose exclusive right to drill on land for oil and gas is interfered with by a trespasser is entitled to nominal damages. Appeal, § 932 reversal to secure nominal damages.

7. A judgment for defendant on a directed verdict in an action to recover damages for interference with plaintiff's exclusive right to drill for oil will not be reversed because plaintiff was entitled to nominal damages. [See 2 R. C. L. 267; 1 R. C. L. Supp. 487.]

Costs, § 24 - statutory provision division.

8. Where a plaintiff in an action to recover damages for interference with his exclusive right to drill for oil, against whom a verdict is directed, is entitled to nominal damages, the statute should be applied which provides that, if the judgment recovered by plaintiff is less than $100, each party shall pay his own costs.

On Petition for Rehearing.

Damages, § 260 — right to recover for fixtures removed from oil and gas lease.

9. The owner of an oil and gas lease whose rights are limited to exploration for oil and gas, and removal of those minerals if found, cannot recover from a trespasser the value of fixtures which the latter had placed upon and removed from the land. Damages, § 260 cost of plugging well.

10. The owner of an oil and gas lease cannot recover from a trespasser the cost of plugging a well in accordance with the requirements of a statute which the trespasser had not observed. Damages, § 338 — injury to feelings. 11. Damages cannot be allowed for injury to the feelings of the owner of an oil and gas lease by trespasses committed upon the property by a stranger.

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[See 26 R. C. L. 974. See also annotation in 23 A.L.R. 361.]

State v. Snyder, 29 Wyo. 163, 212 Pac. 762; Carothers v. Mills, Tex. Civ. App. —, 233 S. W. 155; Benavides v. Hunt, 79 Tex. 383, 15 S. W. 396; Hynson v. Gulf Production Co. Tex. Civ. App., 232 S. W. 873; Green v.

return a verdict for defendant where there is no substantial evidence to support plaintiff's case, or where, taking all the evidence together, it clearly tends to sustain defendant's contention, or where the court would be obliged to set aside the verdict, if returned for plaintiff, or where the evidence is purely speculative and gives rise to a mere conjecture in favor of plaintiff.

26 R. C. L. p. 1075; Boswell v. First Nat. Bank, 16 Wyo. 161, 92 Pac. 624, 93 Pac. 661; Chicago, B. & Q. R. Co. v. Cook, 18 Wyo. 43, 102 Pac. 657; Southern Ice Co. v. Black, 136 Tenn. 391, 189 S. W. 861, Ann. Cas. 1917E, 695; Pennsylvania R. Co. v. Martin, 55 L.R.A. 361, 49 C. C. A. 474, 111 Fed. 586; Phoenix Printing Co. v. Durham, 32 Okla. 575, 38 L.R.A. (N.S.) 1191, 122 Pac. 708; Cudahy Packing Co. v. Marcan, 54 L.R.A. 258, 45 C. C. A. 515, 106 Fed. 645, 9 Am. Neg. Rep. 670; Cole v. German Sav. & L. Soc. 63 L.R.A. 416, 59 C. C. A. 593, 124 Fed. 113, 14 Am. Neg. Rep. 676; Scherer v. Schlaberg, 18 N. D. 421, 24 L、R.A. (N.S.) 520, 122 N. W. 1000; Chybowski v. Bucyrus Co. 127 Wis. 332, 7 L.R.A. (N.S.) 357, 106 N. W. 833; Schuermann v. Dwelling House Ins. Co. 161 Ill. 437, 52 Am. St. Rep. 377, 43 N. E. 1093; Westfall v. Wait, 165 Ind. 353, 73 N. E. 1089, 6 Ann. Cas. 788; Lonzer v. Lehigh Valley R. Co. 196 Pa. 610, 46 Atl. 937, 8 Am. Neg. Rep. 335; Schley v. Susquehanna & N. Y. R. Co. 227 Pa. 494, 136 Am. St. Rep. 906, 76 Atl. 207, 19 Ann. Cas. 1019; Fulton v. Freeland, 219 Mo. 494, 131 Am. St. Rep. 576, 118 S. W. 12; Woodhouse v. Powles, 43 Wash. 617, 8 L.R.A. (N.S.) 783, 117 Am. St. Rep. 1079, 86 Pac. 1063, 11 Ann. Cas. 54; Tracy v. Hacket, 19 Ind. App. 133, 65 Am. St. Rep. 398, 49 N. E. 185; Ladd v. Redle, 12 Wyo. 362, 75 Pac. 691; Whitehouse v. Bolster, 95 Me. 458, 50 Atl. 240.

Where one enters upon the lands of another without legal right to do so and takes away oil, gas, coal, ore, or other minerals, the measure of damages is the value of the minerals appropriated by him. Where defendant does so under color of title or in good faith, believing that he has a right to take the minerals, the expense of production must be deducted from the amount which is recoverable by plaintiff. If, however, defendant knew, or was in possession of sufficient facts so that he had no reasonable grounds to

believe that he was within his legal rights in taking the minerals, then he must respond to plaintiff for the full value of the minerals taken without any deductions.

Guffey v. Smith, 237 U. S. 101, 59 L. ed. 856, 35 Sup. Ct. Rep. 526; Pittsburgh & W. V. Gas Co. v. Pentress Gas Co. 84 W. Va. 449, 7 A.L.R. 901, 100 S. E. 296; 3 Lindley, Mines, 3d ed. p. 2177; Backer v. Penn Lubricating Co. 89 C. C. A. 419, 162 Fed. 627; Doddridge County Oil & Gas Co. v. Smith (C. C.) 173 Fed. 386 (C. C.) 154 Fed. 970; Archer, Oil & Gas, § 36, pp. 94, 95; Crawford v. Forest Oil Co. 208 Pa. 5, 57 Atl. 47; Backer v. Penn Lubricating Co. 89 C. C. A. 419, 162 Fed. 627.

One cannot be held to respond in exemplary damages who enters peaceably upon the lands of another under an honest claim of right, even though this claim be in dispute, if honest minds might differ on the merits of the controversy, and where there is no actual malice, oppression, fraud, or wantonness, and no force or violence is used.

Cosgriff v. Miller, 10 Wyo. 190, 98 Am. St. Rep. 977, 68 Pac. 206; Painter & Co. v. Stahley Bros. 15 Wyo. 519, 90 Pac. 375; Henderson v. Coleman, 19 Wyo. 183, 115 Pac. 439, 1136; Powers v. Manhattan R. Co. 120 N. Y. 178, 24 N. E. 295; 1 Sedgw. Damages, 9th ed. 741; Campbell v. Smith, 180 Ind. 159, 101 N. E. 89; Crawford v. Forest Oil Co. 208 Pa. 5, 57 Atl. 47; United States v. Homestake Min. Co. 54 C. C. A. 303, 117 Fed. 481, 22 Mor. Min. Rep. 365; Campbell v. Rock Oil Co. 80 C. C. A. 467, 151 Fed. 191; Abbott v. 76 Land & Water Co. 103 Cal. 607, 37 Pac. 527; Norfolk & P. Traction Co. v. Miller, 98 C. C. A. 453, 174 Fed. 607; Durant Min. Co. v. Percy Consol. Min. Co. 35 C. C. A. 252, 93 Fed. 166, 20 Mor. Min. Rep. 27; Gentry v. United States, 41 C. C. A. 185, 101 Fed. 51; United States v. Van Winkle, 51 C. C. A. 533, 113 Fed. 903, 22 Mor. Min. Rep. 56; Illinois C. R. Co. v. Hoskins, 80 Miss. 730, 32 So. 150; Dyke v. National Transit Co. 22 App. Div. 360, 49 N. Y. Supp. 180; 2 Sutherland, Damages, 4th ed. p. 1288; Mutual L. Ins. Co. v. Hargus, Tex. Civ. App. 99 S. W. 581; Philadel phia, B. & W. R. Co. v. Green, 110 Md. 32, 71 Atl. 986; Jopling v. Bluefield Water Works & Improv. Co. 70 W. Va. 670, 39 L.R.A. (N.S.) 814, 74 S. E. 943; Kibler v. Southern R. Co. 62 C. 252, 40 S. E. 556; Gwynn v. Citizens'

Teleph. Co. 69 S. C. 434, 67 L.R.A. 111, 104 Am. St. Rep. 819, 48 S. E. 460; Western U. Teleg. Co. v. Reeves, 34 Okla. 468, 126 Pac. 216; Cumberland Teleph. & Teleg. Co. v. Paine, 94 Miss. 883, 48 So. 229; Inman v. Ball, 65 Iowa, 543, 22 N. W. 668; Lyles v. Perrin, 119 Cal. 264, 51 Pac. 332; Barth v. Kansas City Elev. R. Co. 142 Mo. 535, 44 S. W. 778, 3 Am. Neg. Rep. 682; Barry v. Edmunds, 116 U. S. 561, 29 L. ed. 733, 6 Sup. Ct. Rep. 501; Chicago, R. I. & P. R. Co. v. Whitten, 90 Ark. 462, 119 S. W. 835, 21 Ann. Cas. 726; Unfried v. Libert, 20 Idaho, 708, 119 Pac. 885; White v. International Text Book Co. 164 Iowa, 693, 146 N. W. 829; Dee v. Thompson, Tex. Civ. App., 166 S. W. 56; New Sharon Creamery Co. v. Knowlton, 132 Iowa, 672, 108 N. W. 770; Cole v. Gray, 70 Kan. 705, 79 Pac. 654; Courtney v. Kneib, 131 Mo. App. 204, 110 S. W. 665; Thouren v. Skirvin, 57 Tex. Civ. App. 105, 122 S. W. 55; Martin v. Leslie, 93 Ill. App. 44; Hilfrich v. Meyer, 11 Wash. 186, 39 Pac. 455; Adams v. St. Louis & S. F. R. Co.

149 Mo. App. 278, 130 S. W. 48; Schippel v. Norton, 38 Kan. 567, 16 Pac. 804; Dangelo v. McLean Fire Brick Co. (C. C. A. 6th) 287 Fed. 14; Shaffer v. Austin, 68 Kan. 234, 74 Pac. 1118; Seal v. Halcomb, 48 Tex. Civ. App. 330, 107 S. W. 916; Schwartz v. Davis, 90 Iowa, 324, 57 N. W. 849; First Nat. Bank v. Kansas Grain Co. 60 Kan. 30, 55 Pac. 277; Barber v. Kilbourn, 16 Wis. 485; Meidel v. Anthis, 71 Ill. 241; Ganssly v. Perkins, 30 Mich. 492; Kuhn v. Chicago, M. & St. P. R. Co. 74 Iowa, 137, 37 N. W. 116; Ladd v. Redle, 12 Wyo. 362, 75 Pac. 691.

Blume, Ch. J., delivered the opinion of the court:

This is an action brought by the plaintiffs in error against the Hall Oil Company, the Midwest Refining Company, and Pearl L. Eddy, defendants in error, to recover damages in the sum of $1,500,000 for unlawfully attempting to drill an oil or gas well. The case was tried to a jury, but the court directed a verdict for the defendants, and from the judgment entered, in accordance with the directed verdict, the plaintiffs have brought their proceeding in error. The parties will be named herein as in the court below.

On September 11, 1915, James Barquin was the owner of 80 acres

of land in section 26, township 3 north, range 1 west, Windriver meridian. On that date he gave an oil and gas lease on the land to G. H. Paul. Paul assigned the lease to John Dillon, and the latter, in turn, on September 2, 1916, assigned it to the Hall Oil Company. On July 23, 1917, James Barquin and his wife made and executed to the plaintiffs herein a warranty. deed, conveying to the plaintiffs all the oil and gas in and under the aforesaid premises, together with the exclusive right, at all times, to go upon the land for the purpose of drilling for oil and gas, and removing it from the land if discovered. Two days after the execution of this deed, namely, on July 25, 1917, James Barquin and his wife served a notice upon the Hall Oil Company, claiming the lease herein before mentioned to be null and void ab initio, and demanding the cancellation thereof. Upon the refusal to comply with that demand, and on August 9, 1917, Barquin instituted a suit in the district court of Fremont county, asking for the cancellation of the aforesaid lease and other leases, not necessary to be mentioned here, and for damages. That case was not finally disposed of in the district court until in January, 1919, at which time judgment was entered therein, canceling the leases. In the meantime, and during the pendency of that suit, namely, on April 30, 1918, the Hall Oil Company entered into a contract with the Midwest Refining Company, under which it was provided that the latter company should drill an oil or gas well on the above premises and under the lease originally given to Paul. The Midwest Refining Company, on or about September 1, 1918, through the defendant Eddy, its field superintendent, entered on the foregoing land. On September 3, 1918, the plaintiffs served notice upon the defendants, claiming to be the owners of all the oil and gas rights in and under the foregoing land, and forbidding the defendants to trespass on the land

or to attempt to drill a well thereon. The Barquins joined in this notice. In disregard of the notice, the Midwest Refining Company commenced the drilling of an oil well on said land about September 9, 1918, and continued drilling until about October 30, 1918. No gas or oil was found. The well was plugged and abandoned, but was left in condition to be used as a water well for Barquin, at the latter's request. More detailed facts, in connection with the foregoing, will be found in the case of Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 Pac. 255, in which it appears that the Barquins recovered a judgment against the defendants herein for trespassing upon the surface of the premises aforesaid. That judgment was modified and affirmed by this court. The present action was instituted by the plaintiffs herein for the purpose of recovering damages for trespassing upon the oil and gas rights, which the plaintiffs bought of the Barquins on July 23, 1917. It must be taken as conceded or proved that, just as in Hall Oil Co. v. Barquin, supra, the drilling of the well aforesaid was a trespass at least on the lands.

1. The well drilled by the Midwest Refining Company, as above mentioned, was drilled to the depth of 1,635 feet. A sand was encountered at 1,390 feet, and was 55 feet in depth. It was not "shot." It is claimed by plaintiffs that the sand was an oil sand, has been injured or destroyed by water by reason of the improper plugging of the well, and that plaintiffs, therefore, sustained damages in connection with their direct right in the premises, namely, to remove whatever oil or gas might be found upon the land. When the well was abandoned, it was plugged in three different places. The first plug was set at the depth of 1,385 feet. It was a pine plug, driven in the top of a reduced hole, and on top of that plug was put a mixture of rock, sand, and cement. The rock was tamped, and cement and sand were

placed on the top of that and filled up to about 30 feet above the plug. The second plug was set at 605 feet deep, and the third was set at a depth of 200 feet, and both were constructed in a manner similar to the first plug. This testimony, given by Eddy, the field superintendent aforesaid, is uncontradicted, and he also testified that the well was plugged tightly, and that no water could escape to the sand above mentioned, and further, that the sand was dry and without either oil or gas. The witness McCormick, who testified for plaintiffs, stated that if the well was plugged as stated by Eddy, the sand above mentioned would be fully protected from the water. To offset this testimony, plaintiffs testified to having found some oil on the tailings of the well; Mr. Lee testifying that he also had dipped a small amount out of the casing about the time that it was being pulled. Two bottles of oil, representing the findings or part of them, were produced at the trial, and have been sent to this court. Counsel for defendants claim that one bottle of this oil is nothing but ordinary machine oil, and that the other contains green oil usually found in wells producing light crude, a different oil from that found in the Pilot Butte field. We shall not attempt to settle the dispute by an examination of the oil before us. The matter is of no importance unless it be first determined that the water was not kept from the sand above mentioned, for defendants owed no duty to plaintiffs to bring in an oil well for them. A number of witnesses testified that they saw some gas bubbles coming from the well, Barquin testifying that he saw them in 1920, at least over a year after the well had been abandoned; the other witnesses having seen these bubbles later. Some of the testimony shows that, by concentrating the gas on top of the well by means of a funnel, it would burn, producing a small flame, which would be increased by lowering a hammer down the well to the first