NOTE.-The analogy between natural gas and petroleum is so striking that we propose to cite cases respecting both of them. An " Internal Improvement”. Right of Eminent Domain. An Act of West Virginia (Act of February 27, 1867; Laws of 1867, Ch. 95, p. 110; amended February 26, 1868; Laws of 1868, Ch. 67, p. 63) created a corporation "to lay out and construct or cause to be laid out and constructed and maintained a line or lines of tubing, for the purpose of transporting petroleum or other oils through pipes of iron or other materials," in certain counties, "to any railroad or other roads, or to any navigable stream or streams in or adjoining" the counties named, "and to transport from the termini of said pipe or pipes, petroleum or other oils in tank cars, boats or other receptacles belonging to said company." The Act established the maximum charges the company could make for transportation. This was a special Act; and the Constitution (of 1853) provided that "The Legislature shall pass general laws whereby any number of persons, associating for mining, manufacturing, insuring, or other purpose, useful to the public, excepting banks of circulation, and the construction of works of internal improvement, may become a corporation," etc. The Court held that this company was engaged in a work of "internal improvement," and its charter authorized by the Constitution: West Vir ginia Transportation Co. v. Volcanic Oil and Coal Co. (1872), 5 W. Va. 382. The transportation and supply of natural gas for public consumption is recognized as a public use in Pennsylvania; and the right of eminent domain granted to such corporations by the Act of 1885, is within the constitutional power of the Legislature to grant. "It is a curious objection to set up against the Act of 1885, in view of the present consumption of natural gas, that its use is not a public one, and that, therefore, those corporations which are engaged in its transportation, may not be vested with the right of eminent domain. As well might this objection be urged against the vesting of this power in those companies which have been incorporated for the purpose of supplying our towns and villages with water, in which the public interest is found not in the transportation, but in the use of that fluid, after it has, by these agencies, been transported. Nor would it seem to us as of the slightest materiality that the water thus produced, had been drawn from a simple spring, well or basin. Just so with natural gas; it has become a public necessity, but as it cannot be used except it be piped to the manufactories and residences of the people, it follows that as the piping of it is necessary to its use, the means so used for its transportation must be of prime importance to the public, and directly affect its welfare:" Per Curiam, Johnston v. People's Natural Gas Co. (Sup. Ct. Pa., Nov. 15, 1886). To the same effect, Bloomfield & Rochester Natural Gas-Light Co. v. Richardson (1872), 63 Barb. (N. Y.) 437; Appeal of Pittsburgh (1886), 115 Pa. 4; Carothers v. Philadelphia Co. (1888), 118 Id. 468. [The Pennsylvania Act of 1SS5 (P. L. pp. 33-35) provides—“ SECTION 10. The transportation and supply of natural gas for public consumption, is hereby declared to be a public use, and it shall be the duty of corporations, organized or provided for under this Act, to furnish to consumers along their lines and within their respective districts, natural gas for heat, or light, or other purposes, as the corporation may determine. Any and all corporations that is, or are now, or shall hereafter be engaged in such business, shall have the right of emi nent domain for the laying of pipe lines for the transportation and distribution of natural gas; the right, however, shall not be exercised as to any burying ground or dwelling, passenger railroad station-house, or any shop or manufactory in which steam or fire is necessarily used for manufacturing or repairing purposes, but shall include the right to appropriate land upon or under which to lay said lines and locate pipes upon or over, under and across, any lands, rivers, streams, bridges, roads, streets, lanes, alleys, or other public highways, or other pipe lines, or to cross railroads or canals: Provided, In case the pipe lines cross any railroad, operated by steam, or canal, the same shall be located under such railroad or canal, and in such manner as the railroad or canal company may reasonably direct. And provided further, That any company laying a pipe line under the provisions hereof, shall be liable for all damages occasioned by reason of the negligence of such gas company: And provided further, That no company authorized by this Act, shall have the right to occupy longitudinally, the right of way, road bed, or bridge of any railroad company: And provided, If any pipe line laid under the provisions of this Act, or laid upon or over lands cleared and used for agricultural purposes, the same shall be buried at least twentyfour inches below the surface, and if any line of pipe shall be laid over or through any waste or woodland, which shall be changed to farming land, then it shall be the duty of the corporation to immediately bury the said pipe to the depth of at least twenty-four inches as aforesaid. Prior to any appropriation, the corporation shall attempt to agree with the owner as to the damage properly payable for an easement in his or her property, if such owner can be found and is sui juris, failing to agree, the corporation shall tender to the property owner a bond with sufficient sureties to secure him or her in the payment of damages; if the owner refuse to accept said bond or cannot be found or is not sui juris, the same shall then be presented to the Court of Common Pleas of the proper county, after reasonable notice to the property owner, by advertisement or otherwise to be approved by it. Upon the approval of the bond, and its being filed, the right of the corporation to enter upon the enjoyment of its easement shall be complete. Upon petition of either the property owner or the corporation, thereafter, the Court of Common Pleas shall appoint five disinterested freeholders of the county to serve as viewers to assess the damages proper to be paid to the property owner, for the easement appropriated by the company, and shall fix a time for their meeting of which notice shall be given to both parties. Either party may appeal from the report of the viewers, within twenty days after the filing thereof, to the Court of Common Pleas, and have a jury trial as in ordinary cases, and writ of error to the Supreme Court. SECTION 11. The right to enter upon any public lane, street, alley, or highway, for the purpose of laying down pipes, altering, inspecting, and repairing the same, shall be exercised in such way as to do as little damage as possible to such highway, and to impair as little as possible the free use thereof, subject to such regulations as the councils of any city may by ordinance adopt. SECTION 12. In all cases where any dispute shall arise between such corporations and the authorities of any borough, city, township or county, through, over or upon whose highways, or between it and any land owner or corporation, through,over or upon whose property or easement, pipes are to be laid, as to the manner of laying the pipes, and the character thereof, with respect to safety and public convenience, it shall be the duty of the Court of Common Pleas of the proper county, upon the petition of either party to the dispute, upon a hearing to be had, to define by its decree, what precautions, if any, shall be taken in the laying of pipes, and, by injunction, to restrain their being laid in any other way than as decreed. It shall be the duty of the court to have the hearing and make its decree with all convenient speed and promptness. Either party shall have a right to appeal therefrom, as in cases of equity, to the Supreme Court, but the appeal shall not be a supersedeas of the decree, and proceedings shall be had in like manner upon like petition, when and as often as any dispute arises as to pipes already laid, to define the duty of such corporation as to their re-laying, repair, amendment, or improvement. SECTION 13. Companies incorporated under this Act, and not referred to or included in the next succeeding section hereof, shall not enter upon or lay down their pipes or conduits on any street or highway of any borough or city of this Commonwealth, without the assent of the councils of such borough or city by ordinance, duly passed and approved." [Section fourteen provides for the acceptance of the provisions of this Act by corporations theretofore incorporated, under certain restrictions contained in this and the two following sections. [Sections one to eleven provide for incorporation of natural gas companies, and section seventeen for the consolidation of existing corporations. Sections eighteen to the end relate to injuries to works, and to plugging wells. A statute of Pennsylvania (Act of April 24, 1874, P. L. 70 % 4) provided "that every railroad company, coal company, steamboat company, slackwater navigation company, transporta tion company, street passenger company," etc., operating "any railroad, canal, slackwater navigation, or street passenger railway, or device for the transportation of freight or passengers,” should be subject to pay into the State Treasury a certain tax. Under this law, a petroleum company, conveying oil from wells to tanks and reservoirs by means of pipes, were liable to the tax, as a "transportation company," transporting freight: Columbia Conduit Co. v. Commonwealth (1879), 90 Pa. 307; Appeal of the City of Pittsburgh (1888), 123 Id. 374. An Act, passed long before natural gas was in use (Act of April 7, 1870, P. L. 1026, 2), authorized the formation of a company to buy, maintain, or manage in its own name," any work or works, public or private, which may tend or be designed to improve, indorse, facilitate, or develop, trade, travel, or the transportation and conveyance of freight, live stock, passengers, or any other traffic, by land or water, from or to any part of the United States." It was held that this authorized the formation of a company to transport natural gas; and the powers of eminent domain given by the statute (3 4), empowered the company to condemn a right of way for a pipe line: Carothers v. Philadelphia Co. (1888), 118 Pa. 468. Incorporation under General Laws. The General Corporation Act of Pennsylvania (April 29, 1874, P. L. 73), provides for incorporation for (2, clause 2, page 74), "XI. The manufacture and supply of gas, or the supply of light or heat to the public by any other means." Their powers were defined to be (834, p. 93),-" Clause 1. Where any such company shall be incorporated as a gas company, or company for the supply of heat or light to the public, it shall have authority to supply with gas light, the borough, town, city or district where it may be located, and such persons, partnerships and corporations residing therein, or adjacent thereto, as may desire the same, at such price as may be agreed upon, and also to make, erect and maintain therein the necessary buildings, machinery and apparatus for manufacturing gas, heat or light from coal, or other material, and distributing the same, with the right to enter upon any public street, lane, alley, or highway, for the purpose of laying down pipes, altering, inspecting, and repairing the same, doing as little damage to said streets, lanes, alleys and highways, and impairing the free use thereof as little as possible, and subject to such regulations as the councils of said borough, town, city or district may adopt in regard to grades, or for the protection and convenience of public travel over the same." In denying the right of a natural gas company to become incorporated under this statute, GREEN, J., Emerson v. Comm. (1884), 108 Pa. 111, 125, 126, said "It seems to us plain that the words of this section contemplate, and authorize, the creation of corporations for the manufacture and supply of gas, and the supply of light or heat, by any other means. Of course the only kind of gas companies that are authorized, are those which manufacture gas, and this necessarily excludes corporations for supplying natural gas, that being a product of nature, and not the result of any manufacturing process. The other companies authorized, are those for supplying light or heat, produced by any other means. * * * The furnishing of natural gas is not the furnishing of heat. Natural gas is not heat. It is a fuel, a substance which may be converted into heat by combustion with atmospheric air. When gas is delivered to the consumer, it is still gas only. It is not heat." In denying a re-argu ment, the said Justice said-" Counsel are in error, in supposing that we decided that the Act of 1874 did not authorize the incorporation of companies for furnishing heat from natural gas. We carefully distinguished between charters for furnishing heat and those for furnishing natural gas itself; and we expressly declined to declare the respondent's charter void because it was a charter to furnish heat: " p. 127. Use of Public Street, or Country Highway. (See page 115, infra.) The laying of natural gas pipes in a public highway is an additional burden upon the easement; and cannot be done without the payment of damages for the privilege. A court of equity will restrain the laying of such pipe until the damages are assessed and paid: Sterling's Appeal (1885), 111 Pa. 35; In re Bloomfield and Rochester Natural Gas Light Co. (1875), 62 N. Y. 386; s. c. below, Bloomfield and Rochester Natural Gas Light Co. v. Richardson (1872), 63 Barb. (N. Y.) 437. This rule has been applied by the Common Pleas of Mahoning County, Ohio, even to a street in a city: Webb v. Ohio Gas Fuel Co. (1886) 16 Weekly L. Bull. 121, following The Lawrence R. R. Co. v. Wi!liams (1878), 85 Ohio St. 168. Use of a Railroad's Right of Way. When a railroad company does not take the land condemned, in fee, the original owner may lawfully enter upon the road-bed and lay an oil or gas pipe line under the railroad track: Hasson v. Oil Creek and Allegheny River R. R. Co. (1871), 8 Phila. 556. Ejectment. "The plaintiff insists that the agreement amounts to a sale of the oil [in the ground] itself, and that the oil, being a part of the land, in a corporeal hereditament, to recover possession of which ejectment will lie. But if it be conceded that by the contract, there was a grant of the oil, it by no means follows from that alone that ejectment is maintainable. Oil is a fluid like water; it is not the subject of property, except while in actual occupancy. A grant of water has long been sidered not to be a grant of anything for which an ejectment will lie. It is not a grant of the soil upon which the water rests:" Dark v. Johnson (1867), 55 Pa. 164. con twenty years," and for "the sole and and exclusive right to mine for coal, iron ore and all other minerals, which may be obtained on said lands," the lease vested in the lessee a corporeal interest for which ejectment would lie : Barker v. Dale (1870), 3 Pitts. (Pa.) 190 [and a receiver will not be ap pointed, unless under urgent and peculiar circumstances]: Chicago, etc., Oil and Mining Co. v. U. S. Petroleum Co. (1868), 57 Pa. 83. A. granted to B. the exclusive right of boring for oil on a certain farm, reserving the right to farm the surface; if the boring proved profitable, the contract was to be construed as a perpetual lease; if otherwise, possession was to revert to A. On a part of the farm the boring proved profitable. A. brought suit, alleging that the boring had not been profitable on another part of the farm, and asked judgment for possession of that part. The Court held that ejectment would not lie to test A's right to bore for oil; but it would lie, under the agreement, if B. had occupied the land for other purposes, or to an extent greater than allowed by the contract, or if the license was revocable, or had been forfeited by B. The license, when made effectual by a successful re sult according to the terms of the agreement, is perpetual and irrevocable: Rynd v. Rynd Farm Oil Co. (1870), 63 Pa. 397. * * * An agreement was to lease "the exclusive right and privilege of boring for salt, oil or minerals upon his farm * * upon which the first party now resides, ** with the right of access to and from such places as may be selected by the party of the second part; said boring to be done so as to do the least possible injury to the farm," for a consideration of $150, and one third of the product. Holes were to be sunk to satisfy the parties as to practicability and profit for oil. This created an incorporeal hereditament, and the only possession of the grantee was such as was necessary for the enjoyment of the right; the remedy for disturbance of the right was case, and not ejectment: Union Petroleum Co. v. Oliver Petroleum Co. (1872), 72 Pa. 173. [In Phillips v. Coast, decided by the Supreme Court of Pa., January 6, 1890 (25 W. N. C. 275), defendants had bʊna fide, and, by mistake, sunk a well on plaintiffs' land, for the purpose of boring for, and extracting oil. Plaintiffs brought an action of ejectment, and a receiver was appointed to keep an account of the product of the well during the continuance of the suit. The Court held that the defendants were entitled to compensation, for their expenses in sinking such well, out of the proceeds of the oil produced. GREEN, J., "This is a kind of improvement of an unusual character, and one which particularly commended itself to the favorable opinion of the Courts. It was an oil well with all the machinery and appliances necessary to its operation. Now without this well and machinery the oil could not possibly be obtained. After it was completed, its operations were all for the benefit of the plaintiffs. *** Obtaining oil from the bowels of |